2022:BHC-AS:7943-DB IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION WRIT PETITION NO.970 OF 2022 Sushil Lohiya Resident of 1003/1004 Awing, Vastu Tower, Evershine Nagar, Malad West, Mumbai-400 064.

(for his son Brijesh Lohiya -

currently, detained in Mumbai Central Prison) … Petitioner Versus

1. Central Bureau of Investigation (EOB) Mumbai, through its Joint Director, CBI Building, 11th Floor, Plot No.C-35A, ‘G’ Block, Bandra Kurla Complex (BKC)

Near MTNL Exchange, Bandra East, Mumbai-400 051.

2 State of Maharashtra Through Superintendent (Prisons)

Mumbai Central Prison, Sane Guruji Marg, Mumbai-400 011. … Respondents ***

Mr. Abad Ponda, Senior Advocate a/w Mr. Sajal Yadav, Mr. Shalabh K. Saxena, Mr. Mitul Shah, Mr. Harsh Ghangurde, Mr. Karma Vivan and Mr. Sudarshan Khawase i/b Mr. Raj Raut for the Petitioner.

Mr. Kuldeep Patil for Respondent No.1-CBI.

Mrs. M.H. Mhatre, APP for Respondent No.2-State.

***

CORAM : PRASANNA B. VARALE &

S. M. MODAK, JJ.

DATE : 5 APRIL, 2022 JUDGMENT : (Per S.M. Modak, J.)

. In this Petition, we are dealing with a short but an important issue of seminal importance relating to personal liberty of son of the Petitioner. Brijesh Lohiya is one of the accused in an offence registered under Sections 120-B read with 420 of Indian Penal Code and Section 13(2) read with 13(1)(d) of PC Act 1988 with CBI, EOB, Mumbai. He was duly arrested, produced before the Special Court and remanded to police custody initially. On 8 March 2022 he was sent to Magisterial custody and due date for production was 22 March 2022. On 22 March 2022, the son of the Petitioner was neither produced physically nor virtually. The Special Judge, CBI extended the period of Magisterial custody till 5 April

2022.

2 On this background, the Petitioner has filed this habeas corpus Petition for setting aside the impugned remand Order dated 22 March 2022 in RC-04/E/2017 and direct Respondent No.2 to forthwith release the Petitioner’s son Brijesh Lohiya from the continued illegal detention at the Mumbai Central Prison. Whereas the Respondents’ submission is that the detenue’s judicial custody was extended by Special Judge and hence no reliefs can be granted. We have heard Mr. Ponda, learned Senior Advocate for the Petitioner, Mr. Patil for Respondent No.1 and Mrs.

Mhatre, APP for Respondent No.2-State. 3 So issues involved before us are :-

a) Whether reliefs can be granted when judicial custody was extended by the Special Judge, CBI without producing the arestee either physically or virtually on 22 March 2022?

Writ of h abeaus corpus

4 Both the sides relied upon various judgments given by this Court, other High Courts and Hon’ble Supreme Court. Writ of habeas corpus can be issued by this Court in exercise of power under Article 226 of the Constitution of India. The purpose for issuing writ is also mentioned therein. It is for the purpose of “enforcement of any of the rights conferred by Part III and for any other purpose”. Part III of the Constitution deals with “Fundamental Rights”. The relevant Articles for our consideration are Article 21 and Article 22. Article 22 gives following protection to an arrested person. a) to know grounds of arrest.

b) right to consult and to be defended by legal practitioner.

c) to be produced before the nearest Magistrate within 24 hours.

d) insist for authorization for further detention from the Magistrate only.

Article 22(3), (4), (5), (6) deals with detention when it is by way of preventive detention. In this Petition, we are not concerned for those clauses. There is no grievance in this Petition that the Petitioner has been denied of protection guaranteed under Clauses (1) and (2) of Article 21.

5 Whereas Article 21 gives protection to a person to protect his life and property. He has right to insist that procedure established by law need to be followed when he is deprived of his life/personal liberty. That is how the provisions of Code of Criminal Procedure will come into picture.

Provisions of Code of Crim