JUDGMENT Ravindra Singh, J.
1. Heard Sri Dilip Kumar and Rajiv Gupta learned counsel for the petitioner and the learned A.G.A.
2. The facts of this case, in brief, giving rise to this petition are that the petitioner was arrested by the police of Police Station Kasna, District Gautambudh Nagar on 20.1.2005 at 12.00 noon from City Park, Draw Spot of the Greater Noida and he was sent to lock-up of the police station Kasna on 18.1.2005 at 2.10 P.M. in Case Crime No. 21 of 2005 under Sections 420, 467, 468, 471 I.P.C. Police Station Kasna District Gautambudh Nagar. The petitioner was brought and produced before the court of learned C.J.M. Gautambudh Nagar on 20.1.2005 at 1.15 P.M. An application dated 20.1.2005 was moved on behalf of the petitioner in the court of learned C.J.M. with a prayer that the petitioner was detained in the police custody more than 24 hours so his detention is illegal, therefore, he may be released forthwith but that application was rejected and the learned C.J.M. concerned passed an order on 20.1.2005, whereby the petitioner was remanded to the judicial custody for a period of 14 days. In pursuance of that order, the petitioner was sent to the District fail, Ghaziabad.
3. It is contended that the order dated 20.1.2005 is illegal by which the application for the release of the petitioner, was rejected, on the ground that the non-production of the petitioner by the police within 24 hours, would not be rendered his detention illegal, so the petitioner was not entitled for the release because he was an accused in a serious offence.
4. It is further contended by the learned counsel for the petitioner that the investigating officer moved an application before the learned C.J.M. concerned with a prayer that the petitioner may be remanded to the police custody, but the petitioner was remanded to the judicial custody for a period of 14 days. Now, the learned C.J.M. concerned is considering the prayer of police remand on the same application moved, by the investigating officer on 20.1.2005, in which the petitioner is required to file his objection. So the aforesaid exercise is illegal and unwarranted as there is no material available on the case diary produced by the Investigating Officer in the court of 20.1.2005, warranting any direction for the police remand for the purposes of further investigation.
5. It is further contended that according to the provisions of Section 57 Cr.P.C. and under Article 22(2) of the Constitution of India, 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 the 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. In the present case, the petitioner was produced in the Court of the learned magistrate after expiry of 48 hours, so the detention of the petitioner was illegal, therefore, he is entitled to be released on bail. In support of his contention, the learned counsel for the petitioner cited a judgment rendered by the Apex Court in the case of Manoj v. State of M.P., J.T. 1999 (2) S.C., 520.
6. The contention of the learned counsel for the petitioner is opposed by the learned A.G.A. by submiting that it is correct that the petitioner was arrested on 18.1.2005 at about 12.00 noon. He was brought to the police station concerned, where his arrest was shown in the G.D. at 2.10 P.M. on 18.1.2005.The distance of the police station was 15 Km. from the court of learned C.J.M. The petitioner was sent to the Court from the police station on 11.1.2005 at 11.00 A.M. The petitioner was medically examined in pursuance of the direction given by the higher officials at the P.H.C. Bishrakh on 19.1.2005 at 2.30 P.M. but due to non-availability of the vehicle, some delay occurred but he was brought to the Court of learned Magistrate on 19.1.2005 at 5.00 P.M., by that time, the court was closed. So the petitioner was kept at the police station Phase-II, Noida in the night. Thereafter, in the morning of 20.1.2005, he was produced in the court. The prosecution has successfully explained the delay in producing the petitioner in the Court of learned C.J.M. concerned, so there is no violation of the provisions of Article 22(2) of the Constitution of India and Section 57 of Cr.P.C. but it is admitted by the learned A.G.A. that the petitioner was produced before the Court of learned C.J.M. concerned after expiry of 24 hours, It is further submitted that when the petitioner was produced before the learned C.J.M., the police papers were also produced before the court concerned and after perusing the same the learned C.J.M. passed the order dated 20.1.2005, whereby the petitioner was remanded to the judicial custody for a period of 14 days. There is no illegality in the remand order dated 20.1.2005, so the petitioner is not entitled to get any benefit on the ground that he was produced in the court of learned C.J.M. concerned after 24 hours.
7. In the present petition, the main question for determination is as to what will be the 'effect' if the petitioner was detained by the police authorities for more than 24 hours and thereafter he was produced in the court of learned C.J.M. with a prayer to remand him in judicial custody, (i) Whether the learned Magistrate was legally empowered to remand the petitioner in the judicial custody for 14 days (ii) and If the petitioner was remanded to the judicial custody, his detention will be legal or illegal and the petitioner may be released on bail.
8. For determination of this issue, it shall be very relevant to consider the provisions of Section 57 Cr.P.C., wherein it has been provided that 'no police official shall detain in custody a person arrested without warrant for a longer period then under all the circumstances of the case is reasonable and such period shall not, in the absence of a special order for 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'. According to the above provision, nowhere, it has been provided that if a person detained by the police official without warrant for more than 24 hours, shall not be remanded to the judicial custody and other provisions of the Cr.P.C. are totally silent on this point, if an order of remand has been passed in such circumstance and, the person has been remanded to the judicial custody, nowhere in the Cr.P.C. it has been provided that such remand order and detention shall be illegal and the detenue shall be released on bail on this ground alone. According to Section 57 of Cr.P.C., the effect on detention of a person by a police officer for more than 24 hours, is not provided, where as, for another detention it has been specifically provided under Section 167 Cr.P.C. that no Magistrate shall authorise the detention of the accused person in custody for a total period exceeding:-
(i) ninety days, where the investigation relates to an offence punishable with death, imprisonment for life or imprisonment for a term of not less than ten years.
(ii) Sixty days, where the investigation relates to any other offence and, on the expiry of the said period of ninety days, or sixty days, as the case may be, the accused person shall be released on bail if he is prepared to and does furnish bail and every person released on bail under this Sub-section shall be deemed to be so released under the provisions of Chapter XXXIII for the purposes of that Chapter.
9. But nothing has been provided in the Cr.P.C. in respect of the ' effect' of the violation of the provisions of the Article 22(2) of the Constitution of India and Section 57 Cr.P.C, whereas the 'effect' in respect of the violation of the provisions of Section 167 Cr.P.C. is specifically provided, nowhere it has been provided that in such circumstances, the order remanding to judicial custody may not be passed or if it is passed, it will be illegal order and the detention of the accused shall be illegal, therefore, such detenue shall be released on bail, Cr.P.C. is silent on this point which reflects that the intention of the legislature was clear that in such circumstances the order of the remand for the judicial custody and the detention of the accused shall not be affected at all and the detenue shall not be released on bail on this ground. This view has been supported by the view taken by this Court in the case of Manoj Kumar Agrawal v. State of U.P., 1995 Cr.L.J.646.
10. But it has to be considered that if there is provision in the Cr.P.C. and under Article 22(2) of the Constitution of India that no police officer shall detain in custody a person arrested without warrant exceeding 24 hours exclusive of the time necessary for the journey from the place of arrest to the Magistrate's Court. It has to be followed, the purpose may be to check the arbitrariness of the police officers and to protect the fundamental right of the people. If any 'police officer' has detained a person in violation of the provisions of Section 57 Cr.P.C. and Article 22(2) of the Constitution of India, its 'effect' will be that such police officer may liable for the criminal prosecution and to pay the compensation in accordance with the provisions of law.
11. In view of the facts and circumstances of the case and the submissions made by the learned counsel for the petitioner, learned A.G.A. and the reasons as referred to above, the impugned order dated 20.1.2005 passed by the learned Chief Judicial Magistrate, Gautambudh Nagar does not suffer from any illegality. It is a perfect order it requires no interference by this Court and the detention of the petitioner in pursuance of that order dated 20.1.2005 is illegal, so he cannot be released on bail, as such, the prayer for quashing the order impugned, is refused.
12. Accordingly this petition is dismissed.