Sri Arbind Kumar vs The State of Bihar and Others

On the Habeas Corpus petition the Court issued a warrant that the person detained, Shri Arvind Kumar, be produced at the Bar of the Court forthwith. Today the said Arvind Kumar has been produced from custody. Today, though the matter had been adjourned for two hours but the details of the investigation relating to arrest of the petitioner could not be brought on record. Rather, on the other hand the Bank authorities produced the entire ledger and after verification from the same Manager of the Bank who is present in Court states that Shri Arvind Kumar was present during the business hours of the bank i.e. 10 A.M. to 5.30 P.M.

The Senior Superintendent of Police, Patna, who is present in Court in another matter, assures that he will himself supervise the matter and submit a report by tomorrow.

Put up tomorrow.

A habeas corpus petition was lodged with the Registrar General of the High Court yesterday morning dated 19 July at about 7.30 A.M. The habeas corpus petition was on behalf of the wife of Arvind Kumar complaining that at about 10.30 P.M. her husband Arvind Kumar was called to the, Police Station, Kotwali, by the Sub Inspector on 15 July 2004. On being called, her husband reported at the police station. He did not return home on the night of 15th July 2004, nor on the 16th July 2004, 17th July 2004 and 18th July 2004. The habeas corpus petition was put before the court on the 19th July, 2004 itself. Notices had been issued to the State. On behalf of the State, Mr. S.K. Ghose, AAG 2, and Mr. S. D. Yadav, G.A., appeared before the court. The matter was placed today on the assurance given by the Senior Superintendent of Police, Patna, who was present in Court in another matter, that he will himself supervise the matter and submit a report today. Today, he appeared and submitted a report.

The court will confine itself to the technicality of detention so that on the merits either of the case, the inquiry or the investigation there is no reflection.

The short circumstances are that a Car (Maruti Van), which was in the use of Arvind Kumar had been used, it is alleged, in kidnapping.

In yesterday''s proceedings one circumstance emerged that any investigation or inquiry, which had to be done regard being had to the circumstances that the person was an employee of a nationalized bank (State Bank of India), if the investigation was about his presence at about the time when it is alleged that a kidnapping took place then certain provision of the law could not be ignored. These are section 92 of the Code of Criminal Procedure, 1973 read with sections 123 & 124 of the Evidence Act, 1872 and the provisions of the Bankers'' Books of Evidence Act, 1891. To this extent, the court has no hesitation in observing that the inquiry seemed to be slip shod and on a wrong track because the first thing which requires to be indicated was whether the person on whom a suspicion was being alleged was within the Bank discharging business in the normal course of business or outside it. The transactions which he may have done within the Bank in the normal course of business is an information which could only be had from the Bank within the constraints of the law as the court had pointed out.

The bankers'' register in the normal course of business was produced before the court yesterday and there was no issue that this person Arvind Kumar was within the premises of the Bank and discharging his business until close of the business a little after 5.15 P.M. A statement to this effect was made by the Manager incharge of the Bank. The Bankers'' Books were with him for fortification. This aspect is acknowledged today even on behalf of the State. The court will leave this aspect at this.

Beyond this nothing more need to be recorded in this order.

There is only one question which the court has to ask. This is when the Sub Inspector of Police, Kotwali Police Station, required Arvind Kumar to present himself at the police station for questioning, it was 10.30 P.M. on the night of 15 July 2004. Hereinafter, the right of a citizen under the Constitution takes over whether it is Article 22 or the substantive law of the land as has been spelt out in section 167 of the Code of Criminal Procedure, 1973. There was an obligation cast on the police by law to confer the right to the citizen given to him by the Constitution. This person who had been called to the police station at 10.30 P.M. in the night had to be produced within 24 hours before the Magistrate concerned. If the concerned Magistrate was not available then the police had an option to produce him before the nearest Magistrate whether he had the jurisdiction or did not have the jurisdiction. This was not done. Instead, Arvind Kumar was remanded on 17 July 2004. Twenty four hours had been crossed. The journey from the police station to the Magistrate is local. A five minute drive. The detention beyond 24 hours without a remand from the Magistrate is clearly illegal and unconstitutional. There is one thing on record on which there is no issue that when Arvind Kumar was called by the Sub Inspector of Police he complied with the oral direction to present himself with the police station. It is accepted by the State Counsel and even the police officers present he was not running away.

The court has been indicated by the State, the investigation and the record on it. But this would be the merits of the case. It would not be appropriate for the court to notice and record the progress of investigation lest it may interfere the ultimate outcome; the filing of a chargesheet or a final report.

But, when a simple question was put to the State Counsel (Additional Advocate General II and Government Advocate), as to how Arvind Kumar was detained in custody beyond 24 hours they candidly made a statement before the court that they cannot justify as the fact of the matter is that the person detained (Arvind Kumar) was not produced before the Magistrate within 24 hours and remained in police custody beyond the Constitutional right given to the citizen under Article 24 (sic--22?) and the legal protection u/s 167 of the Code of Criminal Procedure, 1973.

This court will always stand by a citizen''s constitutional guarantee that upon arrest he has to be produced before the Magistrate within 24 hours. This constitutional guarantee cannot be compromised. These are bad. Whenever a citizen is taken into custody he must have an opportunity to make a submission before the Magistrate face to face when produced for being remanded to custody.

We also send a caution to the Magistrates that when they are passing orders on remand they must see the face of the man or the woman who has been produced and ask him or her a question if there is anything they have to say before being put to custody again. Signing a remand order, when the accused is in the verandah of the court is routine but violates the constitutional guarantee to be produced before the Magistrate. The presence before the Magistrate is physical, not just a sign and a rubber stamp seal on the remand order.

In the circumstances, in the present case, the State Counsel have been good enough to be fair and accept on this habeas corpus petition that Arvind Kumar be set at liberty forthwith.

Let Arvind Kumar as of now detained by the police be set at liberty forthwith. So ordered. The habeas corpus petition succeeds.