Bombay High Court
Karan Ratan Rokade And Ors vs The State Of Maharashtra And Anr on 21 April, 2025
Author: Sarang V. Kotwal
Bench: Sarang V. Kotwal, S. M. Modak
2025:BHC-AS:17707-DB
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL WRIT PETITION NO.996 OF 2025
Karan Ratan Rokade
and others ....Petitioners
Versus
The State of Maharashtra & Anr. ... Respondents
.......
WITH
INTERIM APPLICATION NO.850 OF 2025
IN
CRIMINAL WRIT PETITION NO.996 OF 2025
......
Mr. Vivek V. Salunke, Advocate a/w. Vaibhav Jathar for the Petitioners.
Mr. S.V. Gavand, APP for the Respondent No.1-State.
Mr. Varun Thokal, Advocate i/b. Jayant Bardeskar for the Intervenor.
........
CORAM : SARANG V. KOTWAL, AND
S. M. MODAK, JJ.
RESERVED ON : 03th APRIL, 2025
PRONOUNCED ON : 21st APRIL, 2025
JUDGMENT :
[PER SARANG V. KOTWAL, J.]
1. This Petition is filed by the Petitioners for directions in the
nature of writ of habeas corpus for release of the Petitioners from
custody in connection with C.R. No.346/2023 dated 22.5.2023
registered at Chikhali police station, Pimpri Chinchwad, Pune which
has resulted in Special Case (MCOC Act) No.1078/2023 on the file of
the learned Special Court (MCOC Act), Pune. The other prayers are
Deshmane(PS)
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for declaration that their arrest was illegal and in violation of their
fundamental rights guaranteed under Articles 21 and 22 of the
Constitution of India; and for setting aside their remand orders dated
2.7.2023 and 7.7.2023.
2. The main contention of the Petitioners is that they were
produced before a Magistrate, after more than 24 hours from their
arrest at the time of seeking their remand on the first occasion, which
is violative of Article 22(2) of the Constitution of India and which is
also in violation of Section 57 of Cr.P.C..
3. Heard Mr. Vivek Salunke, learned counsel for the
Petitioners, Mr. S.V. Gavand, learned APP for the Respondent No.1-
State and Mr. Varun Thokal, learned counsel for the Intervenor.
4. Before referring to the submissions made by learned
Counsel of both sides, it is necessary to refer to the brief facts, leading
to the arrest of the Petitioners. These facts are mentioned in the
affidavit filed by the Assistant Commissioner of Police Shri Sunil
Kurade attached to Wakad Division of Pimpri Chinchwad Police
Commissionerate, District-Pune. The FIR was lodged by the
informant Rajendra Karle. In 2022, during the Navratri festival at
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Patil Nagar, Chikhali there was some altercation between the
Petitioner No.1 Karan Rokade and his friends on one hand and one
Krushna @ Sonya Haribhau Tapkir and his friends on the other. The
Petitioner No.1 Karan had threatened Krushna of dire consequences.
The Petitioner No.1 Karan was having a grudge against Krushna as
Krushna was gaining popularity in the vicinity. On 22.5.2023, at
about 1.40 p.m. to 1.45 p.m. Saurabh Pansare and Sidharth Kamble
came on a two-wheeler at the spot of offence. Saurabh Pansare fired
bullets on the chest, neck and other parts of Krushna; who succumbed
to death on 22.5.2023 while taking treatment. On that basis, the FIR
was lodged vide C.R. No.346/2023 at Chikhali police Station under
Sections 302, 120-B of IPC and under Sections 3(25)(27) of the Arms
Act and under Section 37(1)(3) read with Section 135 of the
Maharashtra Police Act. The investigation commenced. During the
course of the investigation, it was revealed that Krushna’s murder was
committed by an Organized Crime Syndicate headed by the Petitioner
No.1 Karan. The Senior Inspector of Police, Chikhali police station Shri
Dnyaneshwar Katkar submitted a report dated 29.6.2023 to the
Additional Commissioner of Police, Pimpri Chinchwad for applying the
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provisions of the Maharashtra Control of Organised Crime Act, 1999
(for short, ‘MCOC Act‘) against the Petitioners and other accused in
connection with the said offence. The material collected during the
investigation indicated that the Petitioners were involved in this
offence. They were controlling the same by staying outside
Maharashtra. From the date of offence they had absconded from their
homes and they had abandoned their mobiles. It was with great
difficulty a specialized squad started tracing their locations from
different States. During that process, the squad intercepted the IP
address of WhatsApp calls and the squad came to know that the
Petitioners were hiding themselves in a small town called Madhuban
near Nepal border. The squad reached there. The Petitioners saw the
squad and tried to run away but they were intercepted and taken in
custody. On 30.6.2023 at about 7.24 p.m., they were taken into
custody within the jurisdiction of Madhuban police station, District
Mau, Uttar Pradesh. The local police station of Madhuban was
intimated. According to the said affidavit, the Petitioners were
dangerous criminals with serious antecedents and, therefore, it was
thought necessary to take them immediately to Pimpri Chinchwad and
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to produce them before a competent Magistrate. Accordingly, the said
squad took the Petitioners by road to come to Pimpri Chinchwad.
They reached Pimpri Chinchwad at around 7.00 a.m. in the morning
on 2.7.2023. They were produced before the learned J.M.F.C. at
Pimpri Chinchwad at 2.00 p.m.. The learned Magistrate granted
police custody of the Petitioners to the investigating officer. The
provisions of the MCOC Act were applied on 5.7.2023; and in that
connection they were shown arrested on 7.7.2023 and the subsequent
remands were granted by the learned Special Judge (MCOC Act),
Pune.
SUBMISSIONS OF SHRI VIVEK SALUNKE LEARNED COUNSEL FOR
THE PETITIONERS:
5. The Constitutional mandate under Article 22(2) of the
Constitution is that the arrested person has to be produced before the
nearest Magistrate within a period of twenty-four hours excluding the
time necessary for the journey to take the accused to the nearest
Magistrate. He submitted that in the present case the Petitioners were
not produced before the nearest Magistrate who would be in-charge of
the jurisdiction of Madhuban police station, District-Mau, Uttar
Pradesh. This is also required under Section 57 of Cr.P.C.. He
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submitted that there is clear violation of these provisions and,
therefore, the arrest itself is illegal. The subsequent remands will not
wash out the illegality of the arrest. There is no dispute that the
Petitioners were arrested at around 7.30 p.m. on 30.6.2023 but were
produced before the learned Magistrate at Pimpri Chinchwad on
2.7.2023 at 2.00 p.m.. This is beyond the stipulated period of twenty-
four hours. He submitted that though the Petitioners were shown
arrested formally at 10.00 a.m. on 2.7.2023, in fact they were already
arrested at 7.20 p.m. on 30.6.2023. In support of his contentions, he
relied on the following judgments :
1. Hem Prabhakar Shah Vs. State of Maharashtra 1. It is a Division
Bench judgment of this Court.
3. Ashak Hussain Allah Detha @ Siddique and another Vs. The
Assistant Collector of Customs (P) Bombay and another 3. It is a
Single Judge Bench judgment of this Court.
5. Vihaan Kumar Vs. State of Haryana & another5
1 2024 SCC OnLine Bom 3006
2 (1999) 3 SCC 715
3 1990 SCC OnLine Bom 3
4 Hon’ble Supreme Court dated 21.1.2025 in SLP (Cri) No.1136/2023)
5 Hon’ble Supreme Court dated 7.2.2025 in SLP(CRI) No.13320/2024.
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SUBMISSIONS OF THE LEARNED APP SHRI GAVAND:
6. Learned APP submitted that as mentioned in the affidavit,
the squad that arrested the Petitioners, did not comprise of the
investigating officer and they did not carry the investigation papers
with them. And, therefore, it was not possible for the Officers in the
squad to produce the Petitioners before the learned Magistrate at
Madhuban because the requirement under sub-section (1) of Section
167 of Cr.P.C. is that while transmitting the accused to the nearest
Magistrate a copy of the entries in the case diary were required to be
produced before the Magistrate. The squad was required to take
immediate journey by road and it was necessary to bring the
Petitioners back to Pimpri Chinchwad immediately. The Petitioners
were absconding for a long time and with great efforts they could be
traced and arrested.
7. According to Shri Gavand the travel time from 7.30 p.m. on
30.6.2023 till 10.00 a.m. on 2.7.2023 is required to be excluded as per
Section 167(1) of Cr.P.C. and also under the provisions of Article 22(2)
of the Constitution of India. The Petitioners had reached the
jurisdiction of Pimpri Chinchwad at 7.00 a.m. on 2.7.2023. The
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a.m. on 2.7.2023. Thereafter they were produced before the
competent Court at 2.00 p.m. on the same day i.e. on 2.7.2023 and,
therefore, there was no violation of any of these provisions requiring
production of the accused before the competent Magistrate within a
period of twenty-four hours. When the Petitioners were produced
before the learned Magistrate, he granted police custody till 7.7.2023.
On 5.7.2023, the provisions of the MCOC Act were applied and then
the further police custody was granted by the Special Court on
7.7.2023. All these subsequent remands are valid remands.
8. Shri Gavand submitted that, at the first instance, when they
were produced before the learned J.M.F.C., Pimpri Chinchwad on
2.7.2023, the Petitioners were represented by a Lawyer and at no
point of time any issue was raised by the Petitioners that they were
produced after twenty-four hours from the time of arrest. It is at a
much belated stage i.e. after more than one and a half year, this
Petition was filed on 26.11.2024 taking exception to the fact of late
production from their arrest on 30.6.2023. He submitted that this is a
Petition for a writ of habeas corpus. It is a settled law that the Court
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has to see the validity and legality of detention of the arrested accused
on the date of deciding the Petition for writ of habeas corpus. In any
case, at the highest, the date of filing of the present Writ Petition
would be important and this Court will have to see whether on that
date the remand of the Petitioners was valid.
9. In support of his contentions, Mr. Gavand relied on the
judgments of the Hon’ble Supreme Court in the cases of Kanu Sanyal
Vs. District Magistrate, Darjeeling and others 6, Ram Narayan Singh
Vs. State of Delhi and others7 and Col. Dr. B. Ramachandra Rao Vs.
The State of Orissa and others8.
10. Mr. Gavand further submitted that the Petitioners have
approached this Court for this relief much belatedly and, therefore, the
relief sought being a discretionary remedy, it cannot be granted to the
Petitioners in view of the fact that they had approached this Court
much belatedly. In support of this proposition, he relied on the
judgment of the Hon’ble Supreme Court in the case of Mrinmoy Maity
Vs. Chhanda Koley and others9.
11. Appearing for the intervenor, who is the first informant, Mr.
6 (1974) 4 SCC 141
7 (1953) 1 SCC 389
8 (1972) 3 SCC 256
9 AIR 2024 Supreme Court 2717
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Varun Thokal supported the contentions of the learned APP. He
submitted that this is a serious offence committed by an Organized
Crime Syndicate. The investigating agency could arrest the Petitioners
through great efforts. The Petitioners have approached this Court
much belatedly. Therefore, it was not open for the Petitioners to
contend that their fundamental rights were violated. Because of delay
and latches in approaching the Court, the Petitioners cannot claim any
relief on the ground of infringement of fundamental rights.
REASONS :
12. The first question which arises is as to whether the officers
arresting the Petitioners were obliged to produce the Petitioners before
the Magistrate having jurisdiction over Madhuban police station;
which would have been the nearest Magistrate or before the
Magistrate at Pimpri Chinchwad who had the jurisdiction over the
offence registered in this case. This question is no more res integra.
. A Division Bench of this Court has already dealt with this
issue in the case of Vachhalabai Vs. State of Maharashtra, through the
Secretary to Government of Maharashtra and others10. The relevant
portion from Paragraph-26 of the same judgment is as follows :
10 2019 SCC OnLine Bom 2937
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“26. …… The period of 24 hours is given in relation to the
term “nearest magistrate” and it cannot be read separate from
this term. Further, as per the aforesaid reasoning given,
“nearest magistrate”, cannot be presumed as the Magistrate
having jurisdiction over the crime, in which the accused is
arrested. Further, right to inform the Magistrate of the charge
under which that man is arrested given in this Article shows
that it was intention to see that the Magistrate within whose
territorial jurisdiction the man is arrested is expected to be
informed about such arrest and such Magistrate is expected to
exercise the power, which can be like bail, remand etc. …..”
. This would clearly mean that the nearest Magistrate before
whom the Petitioner should have been produced within twenty-four
hours was the Magistrate having jurisdiction over Madhuban police
station in Uttar Pradesh. Admittedly, the Petitioners were not
produced before that Magistrate but were brought to Pimpri
Chinchwad and were produced on 2.7.2023 at 2.00 p.m.. Therefore,
they were produced beyond twenty-four hours from their arrest before
any Magistrate. It cannot be contended that the time to travel from
Uttar Pradesh to Pimpri Chinchwad should be left out of
consideration. This consideration would have been important if the
Petitioners were produced before the nearest Magistrate. In that case
the time required for journey from the place of arrest to the nearest
Magistrate is permissible to be excluded. In this case, the Petitioners
were not produced before the nearest Magistrate within twenty-four
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hours from their arrest.
13. The next question arises as to what is the effect of non-
production of the Petitioners before the nearest Magistrate after their
arrest within twenty-four hours.
14. The view taken in some of the judgments to that extent
supports the contentions of Shri Vivek Salunke that in such cases the
arrested accused were granted relief. It was held to this effect by a
Division Bench of this Court in the case of Hem Prabhakar Shah and in
the case of Subhash Sharma as decided by the Hon’ble Supreme
Court. It was held in Subhash Sharma‘s case that when the accused
was not produced before the nearest learned Magistrate within
twenty-four hours, arrest of the accused was rendered completely
illegal as a result of the violation of clause (2) of Article 22 of the
Constitution of India and, therefore, his arrest gets vitiated on
completion of twenty-four hours in custody.
15. The fact situation in the case of Manoj was different. In that
case there were two cases against the accused. One was referred to as
‘Rajasthan case’ by the Hon’ble Supreme Court for the offence
committed in Rajasthan and the other case was referred to as ‘M.P.
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case’ for the offence committed by the same accused in Madhya
Pradesh. In these facts, bail was granted to that accused in Rajasthan
case. While he was in custody in connection with ‘Rajasthan case’ he
was never produced before the competent Court in connection with
the ‘M.P. case’, and, therefore, he was granted bail. It was observed
that, since in the ‘M.P. case’, after the arrest he was not produced
before the nearest Magistrate within twenty- four hours, the detention
made as a sequel to that arrest would become unlawful beyond the
period of twenty-four hours.
16. Thus, it is the consistent view that if the accused is not
produced before the nearest Magistrate within twenty-four hours after
his arrest, his detention becomes unlawful.
17. In the case of Ashak Hussain Allah Detha it was observed
that the putting restraint on the personal liberty would amount to
arrest. However, that particular aspect is not an issue before this Court
at this stage. It is an admitted fact that the Petitioners were arrested at
7.24 p.m. on 30.6.2023.
18. Shri Salunke relied on the observations in Vihaan Kumar’s
case, made by the Hon’ble Supreme Court that once it is held that the
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arrest is unconstitutional due to violation of Article 22(1), hence the
arrest itself is vitiated. Therefore, continued custody of such a person
based on orders of remand is also vitiated. Filing of a charge-sheet
and order of cognizance will not validate an arrest which is per se
unconstitutional being violative of Articles 21 & 22(1) of the
Constitution of India.
19. Therefore, it is quite clear that if the accused is not
produced before the nearest Magistrate within twenty-four hours from
his arrest, the remand after that is not valid. Therefore, in the
present case the first remand granted by the learned Magistrate on
2.7.2023 can be said to be in violation of this safeguard.
20. However, the question remains as to whether in the facts of
the present case the Petitioners can be released on that ground today.
There is a significant difference on facts in the present case before us.
Though the Petitioners were arrested on 30.6.2023 in connection with
the offence registered for commission of offence only under IPC,
the provisions of MCOC Act were applied on 5.7.2023. The first
police custody remand was granted by the learned Magistrate at
Pimpri Chinchwad on 2.7.2023 upto 7.7.2023. The affidavit filed by
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the Assistant Commissioner of Police Shri Sunil Kurade, Wakad
Division, Pimpri Chinchwad Police Commissionerate, District-Pune
mentions that the provisions of the MCOC Act were applied on
5.7.2023 and the Petitioners were arrested on 7.7.2023 for the
offences under provisions of MCOC Act (emphasis supplied).
Therefore, on 7.7.2023, the Petitioners were produced before the
learned Special Court, MCOC Act, Pune for grant of further police
custody and they were remanded to the police custody by that Court
upto 14.7.2023. Thus, at least from 7.7.2023, there was no illegality
in the arrest and remand of the Petitioners. From that day onwards,
the Petitioners were in custody under the valid remand orders of a
competent Court. They were also produced within twenty-four hours
after their arrest on 7.7.2023 for the commission of offences under the
MCOC Act. Significantly on 2.7.2023, the Petitioners were
represented by an Advocate. From 2.7.2023 upto 7.7.2023, no such
ground of illegal detention was raised by the Petitioners nor they had
approached this Court for a writ of habeas corpus during that period.
21. In the aforementioned judgments, the fact situation was
different. The investigating agency remained the same and the
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investigating officers were from the same investigating agency.
However, in the present case once the MCOC provisions were applied,
the investigation was carried out by another superior officer who was
separately empowered to investigate pursuant to the approval under
Section 23(1) of the MCOC Act. The procedure of arrest of these
Petitioners and producing them before the competent Court for
remand was without any legal flaw.
22. In this context, a reference can be made to certain
judgments relied on by learned APP Shri Gavand. In Ram Narayan
Singh’s case the Petitioners prayed for issuance of writ of habeas
corpus. The Hon’ble Supreme Court had considered the question of
issuance of writ of habeas corpus with reference to the date on which
such writ can be issued. A Five-Judge Bench of the Hon’ble Supreme
Court in that case observed that in habeas corpus proceedings the
Court is to have regard to the legality or otherwise of the detention at
the time of return and not with reference to the institution of the
proceedings.
23. Another Three-Judge Bench of the Hon’ble Supreme Court
in the case of Col. Dr. B. Ramachandra Rao has referred to Ram
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Narayan Singh’s and has further reiterated that in habeas corpus
proceedings the Court has to have regard to the legality or otherwise
of the detention at the time of the return and not with reference to the
institution of the proceedings and A fortiori the Court would not be
concerned with a date prior to the initiation of the proceedings for a
writ of habeas corpus.
. This would mean that we have to consider the fact situation
and legality of the remand on the date of initiation of the proceedings
for a writ of habeas corpus petition. In the present case, as mentioned
earlier, this Writ Petition is filed on 26.11.2024.
24. The Hon’ble Supreme Court had again considered this
aspect in the case of Kanu Sanyal. The relevant paragraphs from that
judgment is paragraph-4 which reads thus :
“4. These two grounds relate exclusively to the
legality of the initial detention of the petitioner in the District
Jail, Darjeeling. We think it unnecessary to decide them. It is
now welt settled that the earliest date with reference to which
the legality of detention challenged in a habeas corpus
proceeding may be examined is the date on which the
application for habeas corpus is made to the Court. This Court
speaking through Wanchoo, J., (as he then was) said in A. K.
Gopalan v. Government of India : AIR 1966 SC 816
“It is well settled that in dealing with the petition for
habeas corpus the Court is to see whether the
detention on the date on which the application is
made to the Court is legal, if nothing more has
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In two early decisions of this Court, however, namely,
Naranjan Singh v. State of Punjab, AIR 1952 SC 106 and Ram
Narayan Singh v. State of Delhi, AIR 1953 SC 277 a slightly
different view was expressed and that view was reiterated by
this Court in B. R. Rao v. State of Orissa, (1972) 3 SCC 256
where it was said :
“In habeas corpus proceedings the Court is to have
regard to the legality or otherwise of the detention at
the time of the return and not with reference to the
institution of the proceedings”.
And yet in another decision of this Court in Talib Husain v.
State of Jammu, (1971) 3 SCC 118 & Kashmir Mr. Justice
Dua, sitting as a Single Judge, presumably in the vacation,
observed that
“in habeas corpus proceedings the Court has to
consider the legality of the detention on the date of
the hearing”.
Of these three views taken by the Court at different times, the
second appears to be more in consonance with the law and
practice in England and may be taken as having received the
largest measure of approval in India, though the third view
also cannot be discarded as incorrect, because an inquiry
whether the detention is legal or not at the date of hearing of
the application for habeas corpus would be quite relevant, for
the simple reason that if on that date the detention is legal, the
Court cannot order release of the person detained by issuing a
writ of habeas corpus. But, for the purpose of the present case,
it is immaterial which of these three views is accepted as
correct, for it is clear that, whichever be the correct view, the
earliest date with reference to which the legality of detention
may be examined is the date of filing of the application for
habeas corpus and the Court is not, to quote the words of Mr.
Justice Dua in B. R. Rao v. State of Orissa (supra), “concerned
with a date prior to the-initiation of the proceedings for a writ
of habeas corpus.”
25. Having regard to the aforesaid observations of the Hon’ble
Supreme Court in various judgments including the judgment delivered
by a Five-Judge Bench of the Hon’ble Supreme Court, we have to see
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whether on the date of filing of this Petition or while deciding this
Petition whether the Petitioners were in custody pursuant to the valid
remand orders. Answer to this aspect will have to be in the
affirmative. As mentioned earlier, from 7.7.2023 onwards the
Petitioners were in custody pursuant to the valid remand orders
passed by the learned Special Judge under the MCOC Act.
26. Another important aspect in this case is that the Petitioners
have not approached any Court challenging the legality of their arrest
and the remand granted by the Magistrate on 2.7.2023 except in the
present Petition. The remand order from 2.7.2023 to 7.7.2023 was
not challenged during that period of detention.
27. Learned APP relied on the case of Mrinmoy Maity‘s case.
The relevant observations are made in paragraph-9 of the said
judgment by the Hon’ble Supreme Court as follows :
“9. Having heard rival contentions raised and on perusal of the
facts obtained in the present case, we are of the considered
view that writ Petitioner ought to have been non-suited or in
other words writ petition ought to have been dismissed on the
ground of delay and latches itself. An applicant who
approaches the court belatedly or in other words sleeps over his
rights for a considerable period of time, wakes up from his
deep slumber ought not to be granted the extraordinary relief
by the writ courts. This Court time and again has held that
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WP-996-25.odtexercising discretionary powers Under Article 226 of the
Constitution of India. In a given case, the High Court may
refuse to invoke its extraordinary powers if laxity on the part of
the applicant to assert his right has allowed the cause of action
to drift away and attempts are made subsequently to rekindle
the lapsed cause of action.”
28. In the present case, as mentioned earlier, there is no
justification as to why this issue was never raised for considerable
period between 2.7.2023 upto 26.11.2024 when this Petition was
filed. The Petitioners were represented by an Advocate right from
2.7.2023. On this ground also we are not inclined to set aside the
remand granted on the first occasion by the learned Magistrate on
2.7.2023 and set the Petitioners at liberty.
29. As mentioned earlier, the offence is quite serious. The
Petitioners were absconding and were not traceable. It is with great
efforts that they could be traced and could be arrested..
30. The present offence itself is very serious. The annexure to
the affidavit filed by the RespondentNo.2 shows that there were
twenty-one serious offences registered against the Crime Syndicate
right from the year 2015 upto the year 2023. There are nine serious
offences registered against the Petitioner No.1 Karan Rokade, there are
eleven serious offences registered against the Petitioner No.2 Mungya
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@ Rutik Rokade and there are two serious offences pending against
the Petitioner No.3 Rinku Kumar.
31. As a result of the above discussion, we are not inclined to
allow this Petition by issuing a writ of habeas corpus to release the
Petitioners from custody. The Petition is accordingly dismissed. Interim
Application is also disposed of.
(S.M. MODAK, J.) (SARANG V. KOTWAL, J.)
Deshmane (PS)
PRADIPKUMAR
PRAKASHRAO
DESHMANE
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