SEKAR REPORTER

Court News from Madras High Court

We have noticed that the warrant ought to have been executed on or before 20.04.2023 but admittedly the arrestee has been picked up only yesterday (26.06.2023). If there is extension, let those papers also be shown as part of the report. [M.S.,J.] [R.S.V.,J.] 27.06.2023 TK  M.SUNDAR, J. AND R.SAKTHIVEL, J. TK HCP NO.1137 OF 2023 27.06.2023

by · Published · Updated

HCP NO.1137 OF 2023
M.SUNDAR, J.
AND
R.SAKTHIVEL, J.
(Order of the Court was made by M.SUNDAR, J.)
Captioned ‘Habeas Corpus Petition’ [hereinafter ‘HCP’ for
the sake of brevity, convenience and clarity] was taken up as a ‘Lunch Motion’ on being mentioned by Mr.A.Saranraj, learned counsel on record at half past ten in the morning.
2. Short facts are that one Thiru. Dineshkumar @ Dinesh,
aged 42 years, (Son of Thiru. Karthikeyan) was arrested yesterday i.e., 26.06.2023 in the evening at around 06.30 pm near Ekambranathar
Temple, Kancheepuram; that Thiru. Dineshkumar @ Dinesh [hereinafter ‘arrestee’ for the sake of brevity, convenience and clarity]; that mother of arrestee is the Habeas Corpus petitioner before us; that the apprehension of the petitioner is that the arrestee may be harmed or even be done away with; that the arrestee has not been produced before any Court until now and this buttresses the apprehension; that Mr.V.Paarthiban, learned counsel appearing on behalf of Mr.A.Saranraj learned counsel on record for the petitioner submitted that the respondents have categorized the arrestee as a Grade ‘A’ offender and therefore, the apprehension that the respondents will harm or do away with the arrestee is real for this reason also; that the learned counsel pointed out and emphasized that the arrestee is not being produced before Court until this point of time though it is now 21 hours from the time of arrest.
3. Issue notice.
4. Mr.E.Raj Thilak, learned State Additional Public
Prosecutor accepted notice for both respondents.
5. Learned Prosecutor on instructions from Mr.J.Vinayagam,
Inspector of Police, B-1 Siva Kanchi Police Station submitted as follows:
(i) it is true that the aforementioned arrest of the arrestee was
effected yesterday i.e., 26.06.2023;
(ii) the arrest was pursuant to a warrant issued by the Court
of Judicial Magistrate No.I, Kancheepuram and a scanned reproduction of the warrant (as placed before us by the learned prosecutor) is as follows:

6. To be noted, the aforementioned warrant has been issued
by Court of Judicial Magistrate No.I, Kancheepuram, under Section 70 of Code of Criminal Procedure, 1973 [hereinafter ‘Cr.P.C.,’ for the sake of brevity, convenience and clarity].
7. It is seen that the warrant is addressed to the Inspector of
Police, Baluchetty Chatram Police Station, Kancheepuram.
8. To be noted, the second respondent is the Inspector of Police, B-1, Siva Kanchi Police Station, Kancheepuram. From the official website we find that both these Police Stations are within the jurisdiction of Judicial Magistrate Court No.I, Kancheepuram.
9. The arrestee will be produced before the ‘Judicial Magistrate No.I, Kancheepuram’ (‘said Judicial Magistrate’ for the sake of convenience) within 24 hours.
10. We find that the arrest is pursuant to a warrant and
therefore, Section 57 of Cr.P.C., may not operate but Section 76 of Cr.P.C., will operate as the warrant has been issued under Section 70 of Cr.P.C.
11. To be noted, Sections 57 and 76 of Cr.P.C., reads as
follows:
’57. Person arrested not to be detained more than twenty- four hours. – 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.’
Section 76 of Cr.P.C., :
’76. Person arrested to be brought before Court without delay.- The police officer or other person executing a warrant of arrest shall (subject to the provisions of section 71 as to security) without unnecessary delay bring the person arrested before the Court before which he is required by law to produce such person:
Provided that such delay shall not, in any case, exceed twenty- four hours exclusive of the time necessary for the journey from the place of arrest to the Magistrate’s Court.
12. We notice the difference qua the language in which Section 57 of Cr.P.C., and Section 76 of Cr.P.C., are couched, from a plain reading of these provisions, it appears that while Section 57 of Cr.P.C., vests the police with power to detain for investigation under
Section 76 of Cr.P.C. the police have to bring the arrestee before the Court without unnecessary delay and there is no mention about
investigation or detention for investigation. There is a proviso to Section 76 of Cr.P.C., which talks about the delay but the proviso presupposes a delay. This means that while under Section 57 of Cr.P.C., the police can detain a person for 24 hours for the purpose of investigation, under Section 76 of Cr.P.C., there are no such powers to the police but the police should produce the person before the Court without unnecessary delay. To be noted, we find this principle ingrained in Article 22(2) of the Constitution.
13. To be noted, the above are prima facie views subject to
further arguments of both sides. For the present, learned Prosecutor on instructions submits that the fear / apprehension of the petitioner is unfounded, the police have not harmed the arrestee in any manner and that the arrestee will be produced before Judicial Magistrate No.I, Kancheepuram by 04.00 pm today.
14. Learned Prosecutor also submits on instructions that the
arrestee is in Baluchetty Chatram Police Station, but this is subjected to disputation by learned counsel for petitioner on instructions. We shall embark upon further enquiry in this regard if need arises.
15. We make it clear that we are embarking upon this
exercise in a HCP legal drill as prima facie it appears that under Section
76 of Cr.P.C., non-production of the arrestee (read in the context of Article 22(2) which makes this constitutionally imperative) without any unnecessary delay would mean that the arrest is in contravention of Section 76 of Cr.P.C., and which in turn would mean that the arrest can be construed as illegal.
16. For the present, let the arrestee be produced before said Judicial Magistrate i.e., Judicial Magistrate No.I, Kancheepuram, forthwith latest by 04.00 pm by today as submitted by learned prosecutor on instructions and said learned Judicial Magistrate shall proceed with the matter on its own merits and in accordance with law, uninfluenced by the pendency of the captioned HCP in this Court. We requisition a report in this regard from the first respondent by 30.06.2023.
17. Let this matter be listed in the ‘Additional List’
tomorrow. List on 28.06.2023.
18. We have noticed that the warrant ought to have been
executed on or before 20.04.2023 but admittedly the arrestee has been picked up only yesterday (26.06.2023). If there is extension, let those papers also be shown as part of the report.
[M.S.,J.] [R.S.V.,J.]

27.06.2023
TK 
M.SUNDAR, J.
AND
R.SAKTHIVEL, J.
TK
HCP NO.1137 OF 2023
27.06.2023

You may also like...