Accused To Be Produced Before Magistrate Within 24 Hours From 'Apprehension', Not From Official Arrest: Telangana High Court
Addressing the subject of detention and production of accused persons, the Telangana High Court recently said that the 24-hour period for producing a person before a magistrate is to be calculated from the moment a person is apprehended, not from when the arrest is officially recorded.
A division bench comprising of Justice P. Sam Koshy and Justice N. Tukaramji said, "Accordingly, this Bench has no hesitation in reaching to the conclusion that question No.1 as regards the commencement of the period of apprehension is concerned, it is held that the period of apprehension is also to be taken into consideration for the purpose of calculating the period of 24 hours as is envisaged under Section 57 of Cr.P.C. In other words, 24 hours is not to be calculated from the time of the official arrest being shown by the police personnel in the arrest memo, but from the time he was initially apprehended or taken into custody".
The bench further ruled that for offences under the Telangana Protection of Depositors of Financial Establishments Act (TSPDFE Act), accused persons can be produced before the nearest judicial magistrate for their first remand, rather than exclusively being produced before the special court designated under the TSPDFE Act.
It said, “When we read the provisions of Sub-Section (2) of Section 167 (CrPC) along with Section 13(1) and (2) of the TSPDFE Act, it will clearly give an indication that the TSPDFE Act has not completely ousted the applicability of Cr.P.C. Rather it is a case where the procedure to be adopted by the special Court notified under the said Act also follows the procedure laid down under Cr.P.C. We find sufficient force in the contentions of the learned Special Government Pleader that Sub-Section (1) of Section 13 of TSPDFE Act categorically envisages that the special Court may take cognizance of the offence even without the offence being committed to it.”
Section 13 of the TSPDFE Act pertains to procedure and powers of Special Courts regarding offences under the act. Section 167 pertains to the procedure to be followed by investigating authorities when investigation cannot be completed in twenty-four hours
This however does not mean, the bench said, that after a person is apprehended for an offence under the TSPDFE Act, then even for obtaining the first remand under Section 167 CrPC, the authorities have to go before the special Court notified under the Act and not the nearest Judicial Magistrate as is envisaged under Cr.P.C.
Background
The court passed the order while hearing a habeas corpus plea concerning the alleged detention of five individuals accused of offences under the IPC and the TSPDFE Act.
The petitioner had initially filed a habeas corpus petition which was disposed of after the authorities confirmed the arrest and judicial remand of the accused. Subsequently, the petitioner filed a second habeas corpus petition raising two legal questions, which was the subject matter before the bench.
The petitioner's counsel argued before the court that the 24-hour period for producing the accused before a magistrate should start from the moment of apprehension, not from the time of official arrest. It was contended that as per the TSPDFE Act, the accused should have been produced only before the designated special court, not a regular judicial magistrate.
The state, represented by the Special Government Pleader, countered that the production before the nearest judicial magistrate was in accordance with the Criminal Procedure Code (CrPC), which the TSPDFE Act does not entirely oust. They argued that the CrPC provisions continue to apply, and the special court's exclusive jurisdiction does not extend to the initial remand stage.
Findings
Referring to judgments of Bombay and Andhra Pradesh High Courts, the bench noted that two accused persons remained in police custody for 38 hours before they were produced before the Judicial Magistrate under Section 57 Cr.P.C. However, the other three, though remained in police custody, were produced within 24 hours before the Judicial Magistrate, it noted.
Section 57 states that a person who is arrested is not to be detained for more than twenty-four hours.
It thereafter said, "In the aforesaid backdrop, when we look into the provisions of Section 57of Cr.P.C, the very first line of the said provision refers to the term detention. It does not use the term ''from the time of arrest'', which further strengthens the case of the petitioner when they say that period of detention starts the moment they stand apprehended by the police, as from that moment itself there is a restraint so far as personal liberty of the concerned person and there is also an arrest of his movement, as he remains under confines of police personnel. Thus, it would amount to a detention of a person right from the time he is apprehended by the police personnel".
With respect to the case at hand it then said, “Therefore, there is clear violation of the statutory requirement under Section 57 of Cr.P.C so far as accused Nos.3 and 4 are concerned, and they are accordingly liable to be given the benefit for the illegal act which the respondent-authorities have committed”.
The court further said that TSPDFE Act does not completely oust the applicability of the CrPC, particularly concerning the initial production before a magistrate. The court emphasized that Article 22(2) of the Constitution and Section 167 of the CrPC mandates production before the nearest judicial magistrate within 24 hours of arrest. It concluded that in the context of Section 13(1) of TSPDFE Act the power of the special court is a discretionary power and not a mandatory direction.
The high court thereafter ordered the release of two accused who had been in custody for more than 24 hours before being produced before a magistrate. However, it dismissed the petition for the other three who had been produced within the 24-hour timeframe.
Case title: Smt. T. Ramadevi, W/o.T. Srinivas Goud vs. The State of Telangana, rep. by its Principal Secretary and Others
WRIT PETITION No.21912 of 2024
Counsel for Petitioner(s): Yemmiganur Soma Srinath Reddy
Counsel for respondent(s): Swaroop Oorilla, learned Special Government Pleader, appearing on behalf of the learned Advocate General, for the respondents.