Under Section 57 of the Code of Criminal Procedure, 1973 (Cr.P.C.) and Article 22(2) of the Constitution of India, 1950 no person arrested without warrant is to be detained in custody for a longer than reasonable period, which shall in any event not exceed 24 hours. Within the expiry of this 24 hour period, the detainee is required to be produced before a Magistrate in accordance with Section 167, Cr.P.C. Further, under Section 97, authorises the Magistrate to issue a search warrant to search for persons wrongfully confined.
The Supreme Court in CBI v. Anupam J. Kulkarni 1992 SCR (3) 158 [Supreme Court of India, 2 Judge Bench] dealt with the issue of whether a person arrested and produced before the nearest Magistrate as required under Section 167(1), can still be remanded to police custody after the expiry of the initial period of 15 days and the Court answered the same in the negative. In addition to this, the Court emphasised that the law does not authorise a police officer to detain an arrested person for more than 24 hours exclusive of the time necessary for the journey from the place of arrest to the magistrate court. Section 167(1) covers the entire procedure to be followed and also lays down that the police officer while forwarding the accused to the nearest magistrate should also transmit a copy of the entries in the diary relating to the case. The entries in the diary are meant to afford the magistrate the necessary information upon which he can take the decision whether the accused should be detained in custody further or not. Pertinently, it held that even at this stage the Magistrate can release the accused on bail if an application is made and if he is satisfied that there are no grounds to remand him to custody but if he is satisfied that further remand is necessary then he should act as provided under Section 167.
The issue of what happens if an arrested person is detained for more than 24 hours was considered by the Supreme Court in Manoj v. State of MP (1999) 3 SCC 715 [Supreme Court of India, 2 Judge Bench]. The Court held that there are only two circumstances in which the constitutional mandate of production within 24 hours can be obviated i.e. when the person arrested is an “enemy alien” or when the arrest is under any law for preventive detention. In all other cases the Constitution has prohibited peremptorily that “no such person shall be detained in custody beyond the said period without the authority of a magistrate”. The arrest in such cases becomes otiose and the accused is liable to be released.
The Calcutta High Court in In re Md.Hanif Mondal CrM 7502/2018; Decided on 13.09.2018 [Calcutta High Court, Division Bench] citing the decision in Manoj held that pursuant to such illegal detention i.e. without production before the Magistrate, the immediate consequence is that the accused has to be enlarged on bail, if not discharged altogether.
Effect of Remand on Illegal Detention
Despite the law on illegal detention as set out above, it is settled that once an accused has been remanded by a valid order under Section 167, then the factum of illegality under Section 57, Cr. P.C. and Article 22(2) is not a ground for release or bail.
In Sadhvi Pragya Singh Thakur v. State of Maharashtra (2011) 10 SCC 445 [Supreme Court of India, 2 Judge Bench], the Supreme Court held that “even if it is assumed for the sake of argument that there was any violation by the police by not producing the appellant within 24 hours of arrest, the appellant could seek her liberty only so long as she was in the custody of the police and after she is produced before the Magistrate, and remanded to custody by the learned Magistrate, the appellant cannot seek to be set at liberty on the ground that there had been non-compliance of Article 22(2) or Section 167(2) of the Cr.P.C. by the police.”
In Saptawana v. State of Assam AIR 1971 SC 813 [Supreme Court of India, 3 Judge Bench], the Supreme Court held that subsequent lawful detention is not vitiated by an earlier unlawful detention.
Similarly, it is not open to seek a writ of habeas corpus on behalf of an accused who has been illegally detained, after his production before a Magistrate and subsequent remand, unless the remand order itself is without jurisdiction or passed in an absolutely mechanical manner or wholly illegal (Manubhai Ratilal Patel v. State of Gujarat (2013) 1 SCC 314 [Supreme Court of India, 2 Judge Bench]; Uday Mohanlal Acharya v. State of Maharashtra, (2001) 5 SCC 453 [Supreme Court of India, 3 Judge Bench]).
However, there is precedent to approach the courts for compensation for wrongful arrest /illegal detention. In Bhim Singh v. State of J&K & Ors. (1985) 4 SCC 677 [Supreme Court of India, 2 Judge Bench] the Supreme Court granted the petitioner Rs. 50,000 as compensation for wrongful detention by the police holding that when a person shows that he has been arrested and imprisoned with mischievous or malicious intent and that his constitutional and legal rights were invaded, the court has the jurisdiction to compensate the victim by awarding suitable monetary compensation.