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IN THE HIGH COURT OF JUDICATURE AT PATNA
BIBEK CHAUDHURI, J.
Cr. WJC No.196 of 2025
(8.4.2025)
Uttam Daga @ Uttam Kumar Daga ... Petitioner
vs.
Union of India & Ors. ... Respondents
Bharatiya Nagarik Suraksha Sanhita, 2023 – Section 187 – Constitution of India – Article 22 – Whether it is obligatory for arresting officer/agency to produce arrested person before nearest Magistrate within 24 hours of his arrest or term "nearest Magistrate" extends to jurisdictional Magistrate in relation to production of accused within 24 hours of his arrest – Right of accused rests on Constitutional and Statutory requirement of his production before Magistrate within 24 hours – If arresting officer finds that he may be produced before jurisdictional Magistrate within 24 hours, there is no necessity to produce accused before nearest Magistrate where he is arrested – If arrested person cannot be produced before 24 hours, then he has to be produced before nearest Magistrate – It is only if journey is likely to take more than 24 hours that person arrested has to be produced before a local Magistrate and transit remand is obtained – In Article 22(2) of Constitution, in computing period of 24 hours, travel time for arrested persons to be produced before jurisdictional Court is to be excluded – Fundamental right of accused is said to be violated if he is detained for more than 24 hours without being produced before Magistrate. (Paras 94 and 99)
Bharatiya Nagarik Suraksha Sanhita, 2023 – Section 483[Section 439 of Cr.P.C., 1973] – Constitution of India – Article 226 – An order, rejecting bail application, can be challenged by filing writ petition under Article 226 of Constitution of India (i) When it violates principles of natural justice; (ii) When it is based on irrelevant and inadmissible evidence; (iii) When the order is arbitrary or capricious; (iv) When it amounts to misuse of power by Lower Court; (v) When the order does not consider specific circumstances of the case; and (vi) When the order of rejection of bail is based in violation of fundamental rights enshrined under Constitution of India – However, Writ Court cannot release accused incorporating provision of Section 483 of BNSS. (Paras 83 and 88)
The legal discussion centers around the interpretation and application of Article 22(2) of the Constitution of India, as well as provisions of the Criminal Procedure Code (Cr.P.C.) and the relevant Act (BNSS). The core issue is whether the arresting authority is obligated to produce the arrested person before the "nearest Magistrate" within 24 hours, or whether the Magistrate's jurisdictional authority is the determining factor.
The key points are as follows:
The term "nearest Magistrate" should be understood as the Magistrate physically closest to the place of arrest, irrespective of whether they have territorial jurisdiction to try the case. This interpretation emphasizes the importance of promptly presenting the arrested individual to an authority at the earliest possible location to safeguard their constitutional rights (!) (!) (!) .
The constitutional mandate under Article 22(2) is designed to protect the fundamental rights of the arrested person by ensuring they are produced before a Magistrate within 24 hours, excluding travel time. If the arresting officer can produce the person before the jurisdictional Magistrate within this period, the obligation to produce before the "nearest Magistrate" is deemed satisfied, and there is no violation (!) (!) (!) .
The phrase "nearest Magistrate" is intended to prioritize the promptness of production over the Magistrate’s territorial jurisdiction to try the case. This ensures that the individual’s liberty rights are protected without unnecessary delay, and that procedural safeguards are maintained (!) (!) .
When the arrest and subsequent production occur within the stipulated 24 hours, even if the Magistrate does not have jurisdiction to try the case, the constitutional requirement is considered fulfilled. Conversely, if the period exceeds 24 hours without production, the rights under Article 22(2) are violated, rendering the detention illegal (!) (!) .
The obligation to produce the arrested person before the nearest Magistrate is not absolute if the person can be produced before the jurisdictional Magistrate within 24 hours. The focus is on the practical feasibility of timely production rather than strict territorial boundaries (!) (!) .
The interpretation of "nearest Magistrate" should aid in achieving the purpose of Article 22(2), which is to prevent arbitrary detention and uphold personal liberty. A narrow, pedantic interpretation that restricts production to only jurisdictional Magistrates would undermine this purpose and render the constitutional safeguard ineffective (!) (!) .
The procedural provisions of the Act and BNSS, including Sections related to remand and custody, are designed to ensure that the arrest process aligns with constitutional protections. Any deviation or failure to adhere to these provisions, especially regarding the timing and location of production, can invalidate subsequent detention orders (!) (!) (!) .
When the arresting authority can reasonably produce the accused within 24 hours before the jurisdictional Magistrate, transit remand or production before a Magistrate outside the local jurisdiction is not necessarily required. The primary concern remains the timely and constitutional protection of the individual's rights (!) (!) .
In summary, the constitutional and statutory framework emphasizes the importance of prompt production of the arrested individual before a Magistrate within 24 hours, with the term "nearest Magistrate" interpreted as the physically closest Magistrate to facilitate this. This interpretation aims to uphold the fundamental rights of personal liberty and prevent unlawful detention.
Bibek Chaudhuri, J. – Times without number, the scope and purport of Article 22 of the Constitution of India, specially Article 22(2) came up for judicial interpretation and consideration in relation to the question as to whether it is obligatory for the arresting officer / agency to produce the arrested person before the nearest Magistrate within 24 hours of his arrest or the term “nearest Magistrate” extends to jurisdictional Magistrate in relation to production of the accused within 24 hours of his arrest.
2. The instant writ petition raises the same question of law in addition to the second question as to whether remand order is amenable to writ jurisdiction specially when statutory indictment is alleged to have been not considered by the learned Magistrate while remanding the accused in police custody or in custody of special investigating agency.
3. Now the facts.
4. In connection with ECIR No. PTZO/04/2024, dated 14th March, 2024 (Directorate of Enforcement, Patna vs. Sanjeev Hans and others) an FIR No. 18 of 2023, dated 9th of January, 2023, registered in Rupaspur Police Station, Patna against the above-named Sanjeev Hans, a member of IAS; Gulab Yadav, EX MLA, RJD; and others, ED, conducted raid in the house of Uttam Daga, petitioner herein, to investigate his role in money laundering at premises CF-374 Salt Lake City, Sector-1, Kolkata-700064 on 25th of January, 2025. The officers of DOE conducted search in the house and others places, owned and possessed by the petitioner and during search they had reason to believe on the basis of the materials collected by them that the petitioner is prima facie guilty of committing offence under the Prevention of Money Laundering Act, (hereinafter described as “PMLA”). Accordingly, he was arrested at about 03:30 P.M.
5. It is the grievance of the petitioner that in terms of Section 187 of the BNSS read with Article 22(2) of the Constitution of India, the DOE did not produce the petitioner before the nearest Magistrate immediately after arrest. On the contrary, he was flown to Patna after his arrest on the same day and at about 09.00 P.M., the accused was produced before the learned CJM, Patna, who remanded him to the custody of the DOE by passing an order at about 09.00 P.M of the same day.
6. The petitioner has challenged the entire process of his arrest, his production before the CJM, Patna and failure on the part of DOE to produce him before the “nearest Magistrate” immediately after arrest, allegedly in violation of Article 22(2) of the Constitution of India. It is also alleged that the DOE violated the provisions of Sections 58 and 187 of the BNSS.
7. By filing a supplementary affidavit, it is alleged that the order passed by the learned CJM, Patna, dated 25th of January, 2025, is bad in law, as the order of remand was passed without any consideration as to whether the DOE came to the prima facie satisfaction with regard to existence of Section 19 of the PMLA. According to the petitioner, the impugned order, dated 25th of January, 2025, is illegal, inoperative and violative of Article 22 of the Constitution of India.
8. On the above facts, the petitioner has filed the instant writ petition, praying for the following reliefs: –
“(a) For seeking a declaration that the detention of the Petitioner pursuant to Petitioner's arrest on 25.01.2025 3:30 p.m. at Kolkata, West Bengal and subsequent production before the Learned C.J.M. Patna at 21:00 hours in the absence of Petitioner being produced before or any order of transit remand being sought from the nearest Magistrate at Kolkata, West Bengal as illegal and violative of Articles 21 and 22 of the Constitution of India and Section 187 of the B.N.S.S (pari materia to Section 167 Cr.P.C.).
(b) For leave to produce certified copy of the order dated 25.01.2025 C.J.M. .., Patna, which has passed by Learned been applied for by filing requisites on 27.01.2025, as and when the same is made available to the Petitioner, whereby and whereunder Petitio
The failure to obtain a transit warrant and produce the accused within 24 hours constitutes a violation of Article 22(2) of the Constitution, rendering the detention unlawful.
A person in custody cannot be detained without producing him before a Magistrate under colourable pretention that no actual arrest is made.
Arrest must be recognized from when an individual's liberty is restrained, and failure to produce before a magistrate within 24 hours constitutes illegal detention under constitutional provisions.
Arrests must comply with legal requirements, specifically the production before the nearest Magistrate within 24 hours, failing which detention is deemed illegal.
Supply of documents to arrestee – Person asserted, if he is informed or made aware orally about grounds of arrest at the time of his arrest and is furnished a written communication about grounds of a....
Mandatory compliance with Section 19 of the Prevention of Money-Laundering Act is essential; failure to comply renders arrest and subsequent proceedings illegal.
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