Bombay High Court
Hanumant Jagganath Nazirkar vs State Of Maharashtra on 26 June, 2025
Author: M.S. Sonak
Bench: M.S. Sonak
2025:BHC-AS:25516-DB
2.WP-54.25(J).DOCX
PPN
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
Digitally signed
by PRACHI
CRIMINAL APPELLATE JURISDICTION
PRACHI PRANESH
PRANESH NANDIWADEKAR
NANDIWADEKAR
Date: 2025.06.27 WRIT PETITION NO. 54 OF 2025
11:32:07 +0530
Hanumant Jagganath Nazirkar
Age: 58 yrs, Occupation: Retired
Residing at: K - H-26, Swapnashilp
Housing Society, Kothrud
Pune - 411 038 ... Petitioner
Versus
The State of Maharashtra
[Through PI of Baramati Taluka Police
Station] ... Respondent
_____________________________________________________
Mr. Manoj Mohite, Senior Advocate a/w Mr. Pranav Pokale,
Mr. Priyanka Chavan, Mr. Aditya Bagal, & Mr. Chinmay
Sawant for the Petitioner.
Mr. S. V. Gavand, APP for the Respondent-State.
______________________________________________________
CORAM : M.S. Sonak &
Jitendra Jain, JJ.
RESERVED ON : 23 June 2025
PRONOUNCED ON : 27 June 2025
Judgment (Jitendra Jain, J.):-
1. Rule. By consent and since pleadings are complete, same
is taken for final hearing at the stage of admission itself.
2. This petition, under Articles 226 and 227 of the
Constitution of India and Section 482 of the Code of Criminal
Procedure, 1973 (Cr.P.C.), is filed for issuing writ of Habeas
Corpus to declare the arrest of the Petitioner in C.R.
No.128/2024, registered with Baramati Taluka Police Station,
under Sections 420, 467, 468, 471 and 34 of the Indian Penal
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Code, 1860 (IPC) to be illegal. The Petitioner in the present
petition has also challenged the remand orders dated 27
October 2024 and 2 November 2024.
Brief facts:-
(i) On 5 March 2023, a complaint was lodged against the
Petitioner, his wife and other persons alleging cheating,
forgery, and dishonestly obtaining an amount of
Rs.3,37,30,000/-. The Anticipatory Bail Application filed
by the Petitioner before this Court was rejected on 8
August 2023 and in the meanwhile chargesheet was filed
by the Police. The challenge by the Petitioner to the
rejection of anticipatory bail was dismissed by the
Supreme Court on 25 August 2023.
(ii) On 25 October 2024, a search was conducted of the
Petitioner by the Investigating Officer.
(iii) At around 1:00 p.m. on 25 October 2024, the Petitioner
was taken into custody from Shivajinagar Metro Station
and produced before the Shivajinagar Police Station. The
Petitioner was thereafter immediately taken to Baramati
and produced before the Baramati Police Station at
around 5:07 p.m on the same day.
(iv) At around 7:40 p.m. on 25 October 2024, the Petitioner
was taken to the Government Medical College, Baramati
for pre-arrest medical examination. The doctors at the
Government Hospital referred the Petitioner to Sassoon
Hospital, Pune. However, the Police decided to take the
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Petitioner to a private hospital in Baramati for cardiac
evaluation at around 9:03 p.m. on 25 October 2024.
(v) On 26 October 2024 at midnight 1:26 a.m. the Petitioner
was admitted to Giriraj Hospital, Baramati and was
discharged at around 4:54 p.m./7:00 p.m. on the said
day.
(vi) On 26 October 2024, after the above discharge, the
Petitioner was taken back to the Government Medical
College at around at 8:07 p.m. for obtaining a certificate
of fitness for custody.
(vii) At 9:00 p.m./10:13 p.m. on 26 October 2024, the
Petitioner was shown as formally arrested at 9:00 p.m. as
per the station diary entry, remand report and affidavit-
in-reply. However, the arrest panchanama shows that the
Petitioner was arrested at 10:13 p.m.
(viii) On 27 October 2024 at 12:20 p.m., the Petitioner was
produced before the learned JMFC, Baramati and remand
order was passed.
Submissions of the Petitioner:-
3. At the outset, the learned senior counsel for the
Petitioner, Mr. M. Mohite, stated that for the present, he is not
pressing his case on non-furnishing of grounds of arrest and,
therefore, this Court need not delve into it. He submitted that
this was because the issue was pending consideration before
the Hon'ble Supreme Court.
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4. Based on the above facts, it is the contention of Mr.
Mohite, learned counsel for the Petitioner that the Petitioner
was produced before the learned Magistrate after the expiry
of 24 hours, contrary to Article 22 of the Constitution of India
and Section 57 of the Cr.P.C. The said period is calculated by
the Petitioner from 25 October 2024 at 1:00 p.m. i.e. the time
when the Petitioner was taken into custody from Shivajinagar
Metro Station or in the alternative from 5:07 p.m. on 25
October 2024, time when the Petitioner was taken from
Shivajinagar Police Station and produced before the Baramati
Police Station.
5. It is the contention of the learned senior counsel that on
a reading of Article 22 of the Constitution of India and Section
57 of the Cr.P.C., the period of 24 hours would start from 1:00
p.m. on 25 October 2024 or at least from 5:07 p.m. on 25
October 2024. Since the Petitioner was produced after the
period of 24 hours, there was violation of the fundamental
right granted under the Constitution of India and, therefore,
the arrest is illegal.
6. The Petitioner's counsel has relied upon various case
laws in support of his contention that the time taken from
7:40 p.m. on 25 October 2024 till 26 October 2024 8:07 p.m.
being the pre-arrest medical examination period cannot be
excluded in calculating 24 hours. The Petitioner, therefore,
prayed for issuance of writ of Habeas Corpus to declare the
arrest illegal.
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7. Learned senior counsel relied upon various decisions of
the Supreme Court and High Courts in support of his
submissions.
Submissions of the learned APP:-
8. The learned APP for the State opposed the petition on
two grounds namely, that the Petitioner's son was present,
when the Petitioner was taken for pre-medical examination at
Baramati and the Petitioner was in touch with his family
members over the phone and, therefore, it cannot be said that
the Petitioner was under arrest during pre-arrest medical
examination till 9:00 p.m. 26 October 2024 when he was
formally arrested.
9. The learned APP further submitted that the Petitioner's
bail application was rejected where the issue of arrest being
illegal was raised and rejected and, therefore, the Petitioner
cannot now, by this petition, seek a relief to declare the arrest
illegal. The learned APP relied upon the order passed by the
Session Judge rejecting the bail application by the Additional
Sessions Judge, Baramati on 13 February 2025. The learned
APP, therefore, prayed for dismissal of the petition.
10. The learned APP has not controverted legal precedents
cited by the counsel for the Petitioner.
11. We have heard learned senior counsel for the Petitioner
and the learned APP for the State and have perused the
documents brought to our attention.
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Analysis & Conclusions:-
12. The short issue which arises for our consideration is
whether the period from 25 October 2024 1:00 p.m. to 26
October 2024 9:00 p.m. when the Petitioner was taken into
custody from Shivajinagar Metro Station, Pune and produced
in custody at Baramati Police Station and thereafter at
Baramati where he was taken for pre-arrest medical
examination can be considered as the period when the
Petitioner can be said to have been arrested.
13. If the answer is 'Yes' then the period of 24 hours
provided under Article 22 of the Constitution of India and
Section 57 of Cr.P.C. would begin from 25 October 2024 1:00
p.m. and since he was produced before the learned Magistrate
at Baramati on 27 October 2024 at 12:20 p.m., same would
amount to having not been produced within 24 hours, and
consequently, the arrest will have to be treated as illegal.
14. If the answer is 'No', then the period of 24 hours would
start from 26 October 2024 at 9:00 p.m. to 27 October 2024
at 12:20 when he was produced before the learned Magistrate
at Baramati and since the said period is less than 24 hours,
there would be no violation of Article 22 of the Constitution of
India and Section 57 Cr.P.C. and consequently arrest would be
treated as legal.
15. The Tabular contention of both the parties can be stated
as under:-
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Sr no. Period of Custody Remand Total time in custody
i. From 25.10.2024 at 1 pm To 27.10.2024 47 hours 20 minutes (as
at 12.20 pm per Petitioner)
ii. From 25.10.2024 at 5.07 pm To 27.10.2024 43 hours 7 minutes
at 12.20 pm (deducting travel hours
from Pune to Baramati)
iii. From 26.10.2024 at 9 pm To 27.10.2024 15 hours 20 minutes (as
at 12.20 pm per Respondent)
16. The relevant provisions for our consideration are
reproduced hereunder:-
Article 22(2) of the Constitution of India
22. Protection against arrest and detention in certain cases
... ... ...
(2) Every person who is arrested and detained in custody
shall be produced before the nearest magistrate within a
period of twenty four hours of such arrest excluding the
time necessary for the journey from the place of arrest to
the Court of the magistrate and no such person shall be
detained in custody beyond the said period without the
authority of a magistrate.
Section 57 of Cr. P.C.
57. Person arrested not to be detained more than 24 hours.-
No police officer shall detain in custody a person arrested
without warrant for a longer period than under all the
circumstances of the case is reasonable, and such period
shall not, in the absence of a special order of a Magistrate
under section 167, exceed 24 hours exclusive of the time
necessary for the journey from the place of arrest to the
Magistrate's Court.
(emphasis supplied)
17. The phrase "arrest" is neither defined under the Code
of Criminal Procedure,1973, nor defined under the Indian
Penal Code, 1860 (IPC) or the Constitution of India. We have
not been shown any statutory definition or meaning of the
word "arrest."
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18. The word "arrest" is derived from the French word
"arrater" which means "to stop or stay." It signifies a restraint
of a person. Therefore, "arrest" would mean a restraint of a
man's person, obliging him to be obedient to law thereby
amounting to the execution of the command of a duly
authorised officer. The word "arrest" would mean a restraint
or the deprivation of one's personal liberty.
19. The question of whether a person is under arrest or not
must be decided based on whether they have been deprived of
their personal liberty to go where they please. In the legal
sense, an "arrest" would consist of taking into custody of
another person under authority empowered by law, for the
purpose of holding or detaining him to answer a criminal
charge or of preventing the commission of a criminal offence.
It starts with the arrester taking a person into his custody by
action or words, "restraining him" from moving anywhere
beyond the arrester's control, and it continues until the person
so restrained is either released from custody or brought before
a Magistrate. The 'arrest" is complete when such restraint by
an authority commences. The arrest commences with the
restraint placed on the liberty of the person and not with the
time of "arrest" recorded by the Arresting Officer.
20. "Arrest" consists in the actual touching of a person's
body with a view to his restraint. The words may, however,
amount to an "arrest" if they are calculated to bring to a
person's notice that he is under compulsion and he, thereafter,
submits to such compulsion. An authority is said to arrest
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another person if it prevents the latter from freely making
their movements and moving according to their will. To
constitute an arrest, it is necessary that the officers should
assume custody and control over the person, either by force or
with his consent. "Arrest" is when one is taken and restrained
from their liberty. Even if a person is touched with a view to
detaining, it would amount to an arrest.
21. The phrase "arrest" has been considered by this Court in
the case of Ashak Hussain Allah Detha @ Siddique & Anr. Vs.
The Assistant Collector of Customs (P) Bombay and Anr. 1 and
the relevant observations in paragraphs 9, 10, 11 and 12 are
reproduced hereunder:-
"9. Admittedly, the applicants were detained without any authority,
from the midnight of 20th July 1989 to 5.20 pm of 21st July 1989-
for 17 hours. Their arrest has been so recorded that their
production before the Magistrate falls within 24 hours stipulated by
Article 22(2) of the Constitution of India and section 57 of the
Code of Criminal Procedure. The prosecution urges that after the
"arrest" they were not detained beyond 24 hours. This submission
is a distortion of the true meaning of the constitutional guarantee
against detention without the sanction of judicial tribunal. They
word "arrest", has not been defined in the Code of Criminal
Procedure or in any other law. The true meaning needs to be
understood. The word "arrest" is a term-of art. It starts with the
arrester taking a person into his custody by action or words
restraining him from moving anywhere beyond the arrester's
control and it continues until the person so restrained is either
released from custody or, having been brought before a Magistrate,
is remanded in custody by the Magistrate is judicial Act. (Christie v
Leachinsky), (1947) 1 All E. R. 667, (Holgate Mohammed v. Duke),
(1934) 1 All E. R. 1054. Both quoted in WORDS AND PHRASES
LEGALLY DEFINED Vol. 1. Third Edition page 113. In substance,
"arrest" is the restraint on a man's personal liberty by the power or
colour of lawful authority. In its natural sense also "arrest" means
the restraint on or deprivation of one's personal liberty.
1
1990 SCC OnLine Bom 3
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10. It is thus clear that arrest being a restraint on the personal
liberty, it is complete when such restraint by an authority,
commences. Whether a person is arrested or not does not depend
on the legality of the act. It is enough if an authority clothed with
the power to arrest, actually imposes the restraint by physical act or
words. Whether a person is arrested depends on whether he has
been deprived of his personal liberty to go where he pleases. It
stands to reason, therefore, that what label the Investigating Officer
affixes to his act of restraint is irrelevent. For the same reason, the
record of the time of arrest is not an index to the actual time of
arrest, The arrest commences with the restraint placed on the
liberty of the accused and not with the time of "arrest" recorded by
the Arresting Officers.
11. The argument that the applicants were not arrested at the mid
night of 19th July 1989 but were detained for interrogation is
untenable. Since the offences under the N.D.P.S. Act are cognisable,
the Investigating Officers possess the authority to arrest without
warrant. They arrest a suspect or do not arrest at all. The
"detention in custody for interrogation" is unknown to law.
Interrogation is known. A person may be lawfully interrogated. But
during such interrogation he is a freeman. If he is detained, not
allowed to leave the office of the Respondent No. 1 and compelled
to eat and sleep there, he is under detention. This restraint is in
reality an arrest. In this case, the applicants were not allowed to
leave the office of the Respondent No. 1 after the midnight of 19th
July 1989. In the circumstances of this case, the applicants were
arrested at the midnight of 19th July 1989.
12. The Investigating Officers may lawfully detain a suspect for an
offence. But detention in custody for interrogation is not authorised
by law. The Investigating Officers may detain for an offence only. In
an English case where the Customs Officers detained a person "for
helping with their inquiries", it was held that there was no
authority in the Custom Officers to detain a person, except, for an
offence. The principle that emerges is this: Any restraint on a
person's liberty except for an offence is illegal. There is no authority
in the Investigating Officers to detain a person for the purpose of
interrogation or helping them in the enquiry."
22. The phrase "arrest" had also recently come up for
consideration before the Coordinate Bench of this Court in the
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case of Hem Prabhakar Shah vs. State of Maharashtra, 2,
reiterating what is explained by us above. The Court, after
analysing the precedents on this issue, observed that the
arrest amounts to detention of a person in contrast to the
state of affairs when he is a free man.
23. In Niranjan Singh Vs. Prabhakar Rajaram Kharote3,
Justice Krishna Iyer paraphrased the term "custody" in his
inimitable style as below: -
"No lexical dexterity nor precedential profusion is needed to come to
the realistic conclusion that he who is under the control of the court
or is in the physical hold of an officer with coercive power is in
custody for the purpose of Section 439. This word is of elastic
semanitcs but its core meaning is that the law has taken control of
the person. The equivocatory quibblings and hide-and-seek niceties
sometimes heard in court that the police have taken a man into
informal custody but not arrested him, have detained him for
interrogation but not taken him into formal custody and other like
terminological dubieties are unfair evasions of the
straightforwardness of the law. We need not dilate on this shady
facet here because we are satisfied that the accused did physically
submit before the Sessions Judge and the jurisdiction to grant bail
thus arose."
24. The Telangana High Court in the case of Smt. T.
Ramadevi Vs. State of Telangana in Writ Petition No.21912 of
2024 decided on 26 September 2024 also concurred with the
view expressed by the judgment of this Court and other
Courts that taking a person into custody would also amount to
an arrest.
25. The meaning of the terms "arrest" and "custody" is
exhaustively dealt with by the Full Bench of the Madras High
2
2024 SCC OnLine Bom 3006
3
(1980) 2 SCC 559
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Court in the case of Roshan Beevi vs. Joint Secretary to
Government of Tamil Nadu & Ors.4, and the same has been
approved in Dhanraj Aswani vs. Amar S. Mulchandani & Anr.5.
26. Since the phrase "arrest" has been consistently
interpreted to mean restraint on the personal liberty of a
person, we do not propose to reproduce various paragraphs of
all the judgments brought to our attention by the learned
senior counsel for the Petitioner. The learned APP has,
however, not brought to our attention any contrary judgment
to that effect.
27. Chapter V of the Cr.P.C. consisting of Sections 41 to 60-A
provides for arrest of persons. In none of these provisions,
there is an exclusion for time taken for pre-arrest medical
examination. There is no requirement for pre-medical arrest,
and consequently, the exclusion as contended by the learned
APP is to be rejected. Section 46 of Cr.P.C. provides that in
making an arrest, the police officer shall actually touch or
confine the body of the person to be arrested. Section 53
provides for medical examination when a person is arrested
on a charge of committing an offence and such an
examination will afford evidence as to the commission of an
offence. Similarly, Section 53A provides for medical
examination of person accused of rape by medical practitioner
on the arrest of a person. Section 54 provides that when any
person is arrested, he shall be examined by a medical officer
4
(1984) 15 ELT 289
5
(2024) 10 SCC 336
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soon after the arrest is made. Section 57 provides that no
person shall be detained in custody for a period exceeding 24
hours. Section 60-A provides that no arrest shall be made
except in accordance with the provisions of this Code or any
other law for the time being in force providing for arrest.
28. Article 21 provides that no person shall be deprived of
his life or personal liberty except according to procedure
established by law. Article 22 provides for protection against
arrest and detention in certain cases. Article 22 (1) provides
that no person who is arrested shall be detained in custody
without being informed, of the grounds for such arrest. Article
22 (2) provides that every person who is arrested and
detained in custody shall be produced before the nearest
Magistrate within a period of 24 hours of such arrest. Article
22 (3) provides that nothing in clauses (1) and (2) shall apply
to any person who is arrested or detained under any law
providing that the person is in custody for preventive
detention. Article 22 (5) provides that any person detained in
pursuance of an order made under any law providing for
preventive detention, the authority making the order shall
communicate to such person the grounds on which the order
has been made. Similarly, Article 22 (7) provides that the
Parliament may by law prescribe the circumstances under
which, and the class or classes of cases in which, a person may
be detained for a period longer than 3 months.
29. On a conjoint and harmonious reading of various
decisions referred to above and meaning of "arrest" and
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analysis of Chapter V of the Cr.P.C. and Article 21 and 22 of
the Constitution of India, we are of the view that in the
present case, the moment, the petitioner was taken into
custody on 25 October 2024 at 1:00 p.m. or at least on 25
October 2024 at 5:07 p.m., the period of arrest begins and
therefore, production of the petitioner on 27 October 2024 at
12:20 p.m. would violate Article 22 (2) of the Constitution of
India and Section 57 of the Cr.P.C. since the Petitioner has
been produced before the Magistrate after the expiry of 24
hours of arrest.
30. Applying the interpretation and judicial pronouncement
referred to above, the issue which would require
consideration in the present case to be decided is whether the
Petitioner when taken into custody on 5 October 2024 at 1:00
p.m. at Shivajinagar Metro Station, Pune could be said to have
been arrested on that day at that time or in the alternative,
can he be said to be arrested on 25 October 2024 at 5:07 p.m.
when he was produced at the Baramati Police Station after
taking him into custody from Shivajinagar Metro Station,
Pune.
31. In our view, there can be no doubt that the Petitioner's
free movement and liberty were restrained on 25 October
2024 at 1:00 p.m. when he was taken into custody at
Shivajinagar Metro Station, Pune and produced before the
Shivajinagar Police Station. Even otherwise, the police
authorities took the Petitioner from Pune to Baramati and
reached Baramati on 25 October 2024 at 5:07 p.m. At least
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from 5:07 p.m. on 25 October 2024, the Petitioner can be said
to have been arrested.
32. The general diary detail annexed at page 83 of the
present Writ Petition records that on 25 October 2024, at
Shivajinagar Police Station at 13:11 hours, the Petitioner was
taken into custody. The phrase used in the general diary
details of Shivajinagar Police Station is "ताब्यात" which would
mean custody or control of the Petitioner. Similarly, on
reaching Baramati on 25 October 2024 at 17:07 hours,
Baramati Police Station in their general diary details recorded
that the Petitioner was taken into custody or control since the
phrase "ताब्यात" is mentioned even in the general diary details
at Baramati. Therefore, the time of arrest would begin from
25 October 2024 at 1:00 p.m. or at least from 5:07 p.m. on 25
October 2024. The phrase "ताब्यात" in English would mean
"custody" has been resolved by the Co-ordinate Bench of this
Court in the case of Hemang Jadhavji Shah Vs. State of
Maharashtra & Ors.6.
33. The contention of the APP is that the time taken for the
pre-arrest medical examination, from 7:40 p.m. on 25 October
2024 to 9:00 p.m. on 26 October 2024, should be excluded in
computing the 24 hours. In our view, the learned APP's
contention is required to be rejected. We have not been shown
any statutory provision that provides for excluding such time
for conducting a pre-arrest medical examination, nor have we
been shown any statutory provision that requires police
6
Writ Petition 2989 of 2025 decided on 30 May 2025.
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authorities to conduct a pre-arrest medical examination before
arresting a person.
34. In the absence of any such statutory provision, the
exclusion sought by the learned APP cannot be accepted. On
the contrary, Sections 53 and 54 of the Cr.P.C. clearly show
that the medical examination is obligatory after arrest. The
provision of the Cr.P.C. clearly indicates that the medical
examination is to be conducted only after the arrest is made.
Therefore, the argument raised by the learned APP regarding
the pre-arrest medical examination is required to be rejected.
On the contrary, the fact that the Petitioner was taken for
medical examination, by applying the provisions of Sections
53 and 54 of the Cr.P.C. clearly demonstrates that the
Petitioner was arrested before the said medical examination.
35. Significantly, the Police have acted as the next kith and
kin of the petitioner as is apparent from the medical discharge
papers and other medical records. If the petitioner's son was
said to be present, we fail to comprehend why the police were
exercising control throughout. Therefore, the contention
about the petitioner not being arrested on 25 October 2024
cannot be accepted. The provisions of the law and judicial
precedents on the subject indicate that the only period that
could be excluded for computing the 24 hours limit within
which the arrested person must be produced before the
nearest Magistrate is the time taken for the journey from the
place of arrest to the Court of the Magistrate. This
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Constitutional mandate cannot be frustrated or whittled by
subterfuges.
36. Under Article 22 (2) of the Constitution of India, only
the time taken for the journey from the place of arrest to the
Court of the Magistrate is excluded. A similar provision of
exclusion appears in Section 57 of the Cr.P.C. In the absence
of any provision in the Constitution or in the Cr.P.C. to exclude
the alleged "pre-arrest medical examination time", we cannot
accept the contention of the learned APP.
37. It is a constitutional mandate that no person shall be
deprived of his liberty except in accordance with the
procedure established by law. The Constitution further directs
that the person arrested and detained in custody shall be
produced before the nearest Magistrate within 24 hours of
such arrest. The only time permitted to be excluded from the
said period of 24 hours is "the time necessary for going from
the place of arrest to the court of the Magistrate". Only under
two contingencies can the said direction be obviated. One is
when the person arrested is an "enemy alien" and the second
when the arrest is under any law for preventive detention. In
all other cases the Constitution has prohibited peremptorily
that "no such person shall be detained in custody beyond the
said period without the authority of a Magistrate.
38. The contention of the learned APP that the son of the
Petitioner was with the Petitioner at the time of pre-arrest
medical examination and, therefore, it cannot be said that the
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petitioner was under arrest is to be rejected. The discharge
certificate issued by the hospital clearly shows that the
petitioner was under the control and custody of the police
authorities. The PSI, Mr. Yuvaraj Patil of Baramati Taluka
Police Station signed the discharge certificate on 26 October
2024. The paper formalities of admission and discharge
clearly show that the Petitioner was in the custody and control
of the police authorities. Merely because the Petitioner's son
happened to be in the hospital or the Petitioner was in touch
with his family members over the cell phone would not mean
that the Petitioner was not in the custody or control of the
police authorities. The police authorities restrained the liberty
of the Petitioner from the time when he was taken into
custody at Shivajinagar Police Station and/or at least on
arriving at Baramati Police Station and continued even in the
hospital. Therefore, we cannot accept the submission of the
learned APP on this count.
39. Mr. Mohite, learned senior counsel for the Petitioner is
justified in contending that nothing prevented police
authorities to produce the Petitioner before the Judicial
Magistrate either when he was taken into custody at 1:00
p.m. on 25 October 2024 at Shivajinagar Metro Station or
when the Petitioner was taken to Baramati Police Station on
25 October 2024 at 5:07 p.m. or that the Petitioner could
have been produced before the Magistrate through video
conferencing when the alleged pre-arrest medical examination
was underway. The learned senior counsel is also justified in
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submitting that even if the person arrested was in the
hospital, the Judicial Magistrate could have visited the
hospital which would have complied with the constitutional
mandate and Section 57 of the Cr.P.C. In our view, Mr. Mohite,
learned senior counsel is justified in contending so. We have
not been shown any circumstances or reasons which
prevented the police authorities from producing the Petitioner
before the Judicial Magistrate within 24 hours from 1:00 p.m.
or 5:07 p.m. of 25 October 2024. There is no reason given as
to why the Petitioner could not have been produced by video
conferencing or why the Judicial Magistrate or Executive
Magistrate could have not visited the hospital to comply with
the mandatory conditions of Article 22(2) of the Constitution
of India and Section 57 of the Cr.P.C.
40. We quote paragraph 15 of the decision of Hon'ble
Gauhati High Court in the case of Bittu Kumar vs. State of
Assam7 which reiterates the course of action to be adopted in
case of medical emergency. The said paragraph 15 reads as
under:-
"15. It is settled constitutional position that an arrestee
shall have to be produced before the nearest Magistrate
within 24 hours excluding the time required for his
production before such Magistrate. There may be
exceptions to such requirement, like in the instant case
where the arrestee is injured and requires urgent medical
care so that instead of producing such an arrestee before
the Magistrate, he might have to be rushed to the hospital
for providing urgent medical treatment. However, in such
cases also the Magistrate may ascertain the condition of
7
2025 SCC OnLine Gau 2842
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the arrestee through video conferencing or personally
visiting such arrestee whose arrest has been reported to
him by the Police. After the arrest of a person if he is not
released on bail, an order for remand to judicial custody
has to be made though it can be qualified by clarifying that
the petitioner may continue to stay in the hospital after
ascertaining such a requirement. For the said purpose, the
Magistrate may also call for a report from the hospital
where the arrestee has been admitted."
41. Based upon the pre-arrest medical examination theory,
the legal and constitutional mandate of production of the
arrested person before the Magistrate within 24 hours of his
detention cannot be violated. Such action on the part of the
police officer is likely to lead to unscrupulous tendencies,
where after a person is arrested, he is not produced before the
Magistrate till the hospital authorities declare him fit. This
will give wrong signals to society and to the public at large. In
our view, such a pre-arrest medical examination theory can be
fraught with mischief and highly deplorable.
42. In view of the above, the justification sought to be made
by the learned APP for not complying with the constitutional
mandate on the pretext of pre-arrest medical examination is
required to be rejected.
43. The next contention of the learned APP that because the
regular bail was rejected, in which the present issue was
raised and came to be rejected, the present petition cannot be
entertained and is to be rejected. Firstly, the present petition is
filed under Article 226 of the Constitution of India for issue of
Writ of Habeas Corpus. The said Writ can be entertained only
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by this Court and not by the Sessions Court. Secondly, as held
by the Hon'ble Supreme Court in the case of Manubhai Ratilal
Patel vs. State of Gujarat & Ors.8 and Senthil Balaji vs. State &
Ors.9 if the arrest itself is without jurisdiction or illegal or
violates Article 22 of the Constitution of India, then even if
the regular bail is rejected or remand is allowed, still this
Court can exercise its discretionary jurisdiction to issue
appropriate Habeas Corpus Writ, if it is found that the arrest
itself was illegal. In the instant case it has been observed by us
that the Petitioner was not produced before the Magistrate
within 24 hours as constitutionally mandated by Article 22(2)
of the Constitution of India and, therefore, this Court has
exercised its jurisdiction in accordance with law laid down by
the above decisions of the Hon'ble Supreme Court. In any
case, the present petition can be treated as a petition
challenging that part of the bail order which has dealt with
the effect of non-production of the Petitioner within 24 hours.
The Petitioner in the instant petition has also challenged
remand orders.
44. Therefore, looked at from any angle, the contention
raised by the learned APP that this Court should not entertain
the present petition is required to be rejected.
45. The Co-ordinate Bench of this Court very recently had
an occasion to examine a similar issue in the case of Kaushik
Rameshchandra Thakkar @ Anam Vs. State of Maharashtra10.
8
(2013) 1 SCC 314
9
(2024) 3 SCC 51
10
Writ Petition No.139 of 2025 decided on 16 April 2025
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The relevant paragraphs of the said judgment reads as
under :-
"28. It has been argued by the learned Senior Advocate on
behalf of the Informant, as well as by the learned APP, that the
time required for the transportation of the Accused to the
Court of the concerned Magistrate in Mumbai and for the
medical examination, will have to be excused in the light of
Section 58 of the Bharatiya Nagarik Suraksha Sanhita.
Section 58 reads as under:
58. Person arrested not to be detained more than
twenty-four hours. - No police officer shall detain in
custody a person arrested without warrant for a longer
period than under all the circumstances of the case is
reasonable, and such period shall not, in the absence of a
special order of a Magistrate under section 187, exceed
twenty-four hours exclusive of the time necessary for the
journey from the place of arrest to the Magistrate's
Court, whether having jurisdiction or not.
29. Even if the aforesaid submission is taken at its best, there
has to be a reasonable link and proximity between the taking
over of the custody of the Petitioner, his medical examination
and production before the Magistrate. In short, the journey to
be undertaken from the place of arrest to the Magistrate's
Court, whether having jurisdiction or not, should be direct
without being interjected by events not covered by Section 58.
In the instant case, the distance between the place of arrest
and the Court, is 500 meters.
30. If the aforesaid contention is to be accepted, it would
mean that the time beginning from 7.00 AM, when the
Petitioner was taken into custody on 16.08.2024, inclusive of
the journey by air to the office of the EOW in Mumbai, the
medical examination, his overnight confinement in the lock-up
and then production at 1.15 PM before the Magistrate on
17.08.2024, will have to be excused. This submission is
palpably fallacious. If such submission is to be accepted, an
Accused could be detained even beyond 24 hrs. with the
justification on the spacious plea that the entire time required
for the journey, interjected with several events up to the Court
of the Magistrate, will have to be excluded. Such submission
could be accepted if there is a close connection and proximity
between the arrest, movement to the medical facility for
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medical examination and further movement to the Court of
the Magistrate.
31. In the case in hands, the journey of the Petitioner, in
custody of the Police, from Palanpur to Ahmedabad to
Mumbai, was followed with the Police team taking him to the
office of the EOW where he was detained and shown to be
arrested at 2.20 PM. There is no explanation as regards the
transportation of the Petitioner, after medical examination, for
an overnight stay in the lock-up, only to be produced in the
Court of the Magistrate, at 1.15 PM, on 17.08.2024. In the
light of the above facts, the violation of Article 22(2) is writ
large. Section 58 does not contemplate the exclusion of the
time required for such a journey, interjected with several
events, while computing the time of 24 hrs.
46. Learned senior counsel for the Petitioner submitted that
if the present petition is allowed, then the Court may put the
Petitioner to terms and conditions which were imposed on the
Petitioner in another case being Crime No. 736/2020 by the
Additional Sessions Judge, Pune vide order dated 17
September 2022. The learned APP opposed the grant of any
relief in this petition but submitted that if this petition is to be
allowed interests of justice would require that the Petitioner
abides by the bail conditions.
47. Therefore, since the learned counsel for the Petitioner
and the learned APP agreed, we are of the view that on
release of the Petitioner by this order, the conditions
mentioned in order dated 17 September 2022 in Crime
No.736/2020 granting bail to the Petitioner in another case
would apply as conditions herein mentioned for release of the
Petitioner even in the present matter being Crime No.128 of
2024. The necessary conditions are as under:-
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ORDER
1] Petitioner/accused Hanumant Jagannath Nazirkar arrested in
Crime No.128/2024 registered with Baramati Police Station be
released on PR Bond of Rs. 1,00,000/- (Rs. One Lakh only) with
one or more sureties of like amount.
2] The Petitioner shall not leave India without permission of this
Court.
3] The Petitioner directly or indirectly shall not mortgage,
pledge, transfer and rent out any movable or immovable
property described in the charge-sheet as disproportionate to
known source of the accused.
4] The Petitioner shall not tamper with the prosecution evidence
nor shall pressurize the prosecution witnesses and shall attend
the trial regularly.
5] The Petitioner shall attend the Office of Baramati Police
Station as and when called through written notice.
48. During the course of the hearing, we brought to the
notice of the learned senior counsel for the Petitioner the
decision of the Supreme Court in the case of Correspondence,
RBANMS Educational Institution Vs. Gunashekar & Anr. 11
which requires directions to refer cash transaction to Income-
tax authorities. In the present case also, there are allegations
of cash transactions of substantial amounts. The learned
senior counsel, in his usual fairness, did not oppose such
directions being given in the present matter.
49. The Petitioner must, therefore, furnish a Permanent
Account Number (PAN) issued by the Income Tax Authorities
of himself and his wife to the Registrar, Appellate Side of this
11
2025 SCC OnLine SC 793
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Court within two weeks from the date of uploading the order.
The Registrar to direct the Chief Commissioner of Income Tax,
having jurisdiction over the Petitioner and his wife, to conduct
an enquiry and investigate into the cash transactions alleged
in the present C.R.128 of 2024 and take necessary action
against all the persons involved in the cash transactions.
50. In view of above, we allow this petition in terms of
prayer clauses (a) and (b) and direct the Petitioner to be
released forthwith with a direction that Petitioner would
comply with the conditions mentioned hereinabove. This is of
course if the Petitioner is not required to be detained with
regard to any other matter by following the procedure
prescribed by law.
51. The petition is made absolute in the above terms. No
costs.
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