IMPORTANT POINT
The court ruled that detention without prior FIR is illegal; however, compliance with arrest protocols established in the Arnesh Kumar case must be followed, and failure to challenge remand limits claims of illegality.

JUDGMENT :

JITENDRA KUMAR, J.

1. The present writ petition has been preferred by the petitioner for declaration of detention of the petitioner by Sonepur Police Station for three days i.e. from 30.07.2020 to 01.08.2020 as illegal. The petitioner is further seeking compensation on account of illegal detention.

2. Heard learned counsel for the petitioner and learned counsel for the State.

3. Learned counsel for the petitioner submits that without any FIR or any legal justification, the petitioner was kept in illegal custody for three days i.e. from 30.07.2020 to 01.08.2020 by Sonepur Police Station. He further submits that the FIR bearing Sonepur P.S. Case No. 574 of 2020 was registered on 01.08.2020, but the petitioner was taken to custody since 30.07.2020 itself and thereafter, he was produced before learned Judicial Magistrate on 02.08.2020 for judicial remand and he was remanded to judicial custody in Sonepur P.S. Case No. 574 of 2020. Thereafter, the petitioner filed an application for regular bail and he got regular bail on 13.08.2020 by the Court of learned C.J.M., Saran at Chhapra in Sonepur P.S. Case No. 574 of 2020 and ultimately he got released on 17.08.2020 after furnishing of bail bonds.

4. Learned counsel for the petitioner further submits that as such, there was no reason to take the petitioner into custody prior to lodging of FIR bearing Sonepur P.S. Case No. 574 of 2020 dated 01.08.2020 and hence, it is illegal detention. Moreover, the FIR bearing Sonepur P.S. Case No. 574 of 2020 was registered for the offence punishable under Sections 341 , 323, 379, 506 read with Section 34 of the Indian Penal Code in which maximum punishment provided was three years in which the police was not required to arrest the petitioner right away. The police had to follow the guidelines as provided by Hon’ble Supreme Court in , but the concerned police has not complied with the directions.

5. He further submits that no reason has been provided in the case diary regarding the arrest of the petitioner and neither any reason has been given for immediate arrest, nor has the police issued any notice under Section 41A Cr.PC to the petitioner. As such, the arrest of the petitioner was again illegal and even learned Judicial Magistrate has not complied with the direction of Hon’ble Supreme Court, because in the given facts and circumstances of the case, he was required to see whether the police has complied with the direction of Hon’ble Supreme Court as given in Arnesh Kumar Case (supra) before arresting the petitioner for offence punishable up to seven years of imprisonment and as such, even remand is illegal.

6. However, learned counsel for the State submits that there is no illegality or infirmity in the arrest of the petitioner. The petitioner was not arrested on 30.07.2020. He was only summoned for inquiry in regard to written report which led to lodging of FIR bearing Sonepur P.S. Case No. 574 of 2020. He was arrested only after lodging of FIR on 01.08.2020 and on the very next day, he was produced before learned Judicial Magistrate for judicial remand and thereafter, he was remanded to judicial custody.

7. He further submits that the order of judicial remand was never challenged by the petitioner before any higher Court, either in writ jurisdiction or otherwise and in stead, he filed an application for regular bail and in fact, he was granted regular bail and got released on 17.08.2020 after furnishing of bail bonds. As such, the arrest of the petitioner is legal and for want of any challenge against the remand order, passed by learned Judicial Magistrate, the legal nature of the arrest b