Since Arrest Of Person Is Drastic & Desperate Stage, It Must Necessarily Be Effected Upon Following Procedure Under Law: Bombay HC

The Bombay High Court said that since the arrest of a person is drastic and desperate stage, it must necessarily be effected upon following the procedure prescribed under law.

The Court was deciding a writ petition filed by the accused who was arrested and remanded to judicial custody.

A Division Bench of Justice Bharati Dangre and Justice Manjusha Deshpande enunciated, “Since arrest of a person is a drastic and desperate stage, it must necessarily be effected upon following the procedure prescribed and this include compliance of various provisions contained in Chapter V of the Code. Article 22 in form of a fundamental right, also makes it imperative that as soon as a person is arrested and if he has to be detained in custody, he should be informed of the grounds of his arrest, which will enable him to consult and to be defended by a legal practitioner. It also serves a purpose as when the person is produced before the nearest Magistrate, as required within 24 hours of his arrest, he is aware of the grounds of his arrest.”

Advocate Rishi Bhuta appeared for the petitioner while APP Sharmila Kaushik appeared for the respondents. Advocate Sudeep Pasbola appeared for the intervenor.

In this case, Sections 406 and 420 read with Section 34 of the Indian Penal Code (IPC) were invoked to which subsequently Section 409 IPC also was added along with Sections 3 and 4 of the Maharashtra Protection of Interest of Depositors (In Financial Establishments) Act, 1999 (MPID Act). The petitioner was arrested and was produced before the Sessions Court. He was remanded to police custody till February 28, 2024 which was further extended till March 14, 2024 and he was then remanded to judicial custody. On completion of investigation, the chargesheet was filed against him. Hence, he was before the High Court challenging his arrest.

The High Court after hearing the contentions of the counsel observed, “The ratio laid down by the Apex Court having been declared to be law of land, binding on all courts of the country, by virtue of Article 141 of the Constitution of India, needless to state, must be followed by each and every one, including any officer/person/magistrate, before effecting arrest of a person, in any case, where his arrest is deemed necessary and this ground shall contain all such details in the hand of the Investigating Officer, which necessitated the arrest of the accused.”

Since the arrest of the petitioner was not compliant with clause (1) of Article 22 of the Constitution and Section 50 of the Code of Criminal Procedure, 1973 (CrPC) and the position of law, as laid down by the Apex Court, the Court declared that his arrest is illegal and in gross violation of his fundamental right.

“We request the learned Public Prosecutor Mr.Venegavkar to furnish the copy of this judgment to the Director General of Police (DGP), who shall circulate the same to all the Additional Director General of Police and (ADGP) and Inspector General of Police (IGP), so that it is circulated through the Commissioner of Police/Superintendent of Police to all the officers exercising the power of arrest within their jurisdiction and if it is deemed appropriate, the copy of the judgment shall also be uploaded on the website of the Police Department of the State of Maharashtra”, it concluded.

Accordingly, the High Court disposed of the writ petition and directed the release of the petitioner from custody on furnishing bail and bonds to the satisfaction of the Trial Judge.

Cause Title- Mahesh Pandurang Naik v. The State of Maharashtra & Anr. (Neutral Citation: 2024:BHC-AS:28603-DB)

Appearance:

Petitioner: Advocates Rishi Bhuta, Ashish Dubey, Ujjwal Gandhi, Neha Patil, Prateek Dutta, Saakshi Jha, Risha Rathod, and Omer Farooq Khuraja.

Respondents: APP Sharmila Kaushik

Intervenor: Advocates Sudeep Pasbola, Suyash Khose, Chinmay Godse, Mrunal Bhide, and Rajan Gurnani.

Click here to read/download the Judgment