Non-compliance with Section 57 of the Code of Criminal Procedure renders the detention illegal, but if the accused is already produced before a Magistrate and judicial custody replaces police custody, the earlier illegal detention cannot be attacked.

JUDGEMENT

1. This is an application under Section 437 of the Code of Criminal Procedure, 1973, for admitting the petitioner to bail. The petitioner was taken into custody by the police between 10.30 P.M. and 11.00 P.M. on 29-6-1974 in connection with Salepur P.S. Case No. 67 of 1974 under Section 395/412 of the Indian Penal Code. He was produced before the Sub-divisional judicial Magistrate in the afternoon of 1st of July, 1974. His application for bail was rejected and the learned Magistrate directed him to be remanded to custody. He moved the learned Sessions Judge for grant of bail and the said application came to be disposed of by the Chief Judicial Magistrate of Cuttack, who rejected the same. This Court has, therefore, been moved for admitting the petitioner to bail.

2. During the pendency of this application, a detailed affidavit was filed wherein it was pleaded that the petitioner had not been produced before the Magistrate as required under Section 57 of the Code of Criminal Procedure within 24 hours from the time of his being taken into custody and in the said affidavit several allegations were made making imputations against the local police. When this application was listed for hearing on 15th of July, 1974, counsel for both sides wanted certain records to be brought up. On the 16th July, 1974, the affidavit referred to above was filed on behalf of the petitioner. In view of the allegations contained therein, the learned Sub-Divisional Judicial Magistrate was required to make a report and the case was adjourned to 22-7-1974. The report from the learned Sub-Divisional Judicial Magistrate has been received and his report supports some of the allegations made on behalf of the petitioner in the affidavit. As there was prima facie material to show that the accused had not been produced before a Magistrate as required under Section 57 of the Code of Criminal Procedure and this Court was satisfied that the matter required to be probed into further, the local police were examined in regard to the matter of production of the accused before the learned Sub-Divisional Judicial Magistrate. In that connection, two police officers - one belonging to the Lalbag Police Station within the Town of Cuttack wherein the accused had been lodged after having been taken into custody and another a Court Sub-Inspector - were examined. On 25-7-1974, the enquiry initiated suo motu regarding non-compliance with the requirements of Section 57 of the Code was directed to be separately looked into and the bail matter was finally heard on 29-7-1974 and orders were reserved. At the time of haring, the consequences of non-compliance with the requirements of Section 57 of the Code of Criminal Procedure were also examined since Mr. Patnaik for the petitioner wanted to support the application for bail on that ground also.

3. Two questions arise for consideration :-

(i) Has the petitioner been produced before a Magistrate in terms of Section 57 of the Code, and if not what is the effect of such non-production ?

(ii) Is the petitioner to be admitted to bail ?

4. I shall first deal with question of the alleged violation of Section 57 of the Code of Criminal Procedure. Section 57 which corresponds to Section 61 of the old Code is the following effect :-

"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 twenty-four hours exclusive of the time necessary for the journey from the place of arrest to the Magistrate's Court."

In Article 22(2) of the Constitution this requirement of the Code of Criminal Procedure has been enshrined as a fundamental right. Personal liberty of citizens in a free country has to be jealously guarded and protected. With that view the provision in the existing Code of Criminal Procedure was taken into the Constitution and included in Par