When an accused is involved in more than one case and has been remanded to judicial custody in connection with any one of those cases, there is no legal compulsion on the Investigating Officers of the other cases to show formal arrest of the accused inside the prison, the Madras High Court Bench here has ruled.
A Division Bench of Justice M. Jaichandren and Justice S. Nagamuthu passed the ruling while disposing of a petition filed by the State against the refusal of a Judicial Magistrate to remand former Transport Minister K..N. Nehru and two others because they were not produced within 24 hours from the time of their formal arrest in a third case when they were already in prison in connection with two other cases.
“In every ‘arrest' there is ‘custody,' but not vice versa. Whether in every ‘formal arrest' there is ‘custody,' as embodied in Article 22(2) of the Constitution of India and Section 57 of the Code of Criminal Procedure, is the interesting issue involved in this Criminal Original Petition,” the judgement began and went on to state that it was the discretion of the investigating officer to show formal arrest or not inside the prison.
Penning down the judgement for the Bench, Mr. Justice Nagamuthu also said: “The police officer shall not arrest the accused in a mechanical fashion. He can resort to arrest only if there are grounds and need to arrest… When such a formal arrest is effected in prison, the accused does not come into the physical custody of the police at all, instead, he continues to be in judicial custody in connection with the other case.
“Therefore, there is no legal compulsion for the production of the accused before the Magistrate within 24 hours from the said formal arrest. For the production of the accused before the Court after such formal arrest, the police officer shall make an application before the Jurisdictional Magistrate for issuance of P.T. (prisoner on transit) warrant without delay” and follow the regular procedures including submission of a request for police custody, if required.
“If the police officer decides not to effect formal arrest, it will be lawful for him to straightaway make an application to the Jurisdictional Magistrate for issuance of P.T. warrant for transmitting the accused from prison before him for the purpose of remand. On such request, if the Magistrate finds that the requirements of Section 267 of the Code of Criminal Procedure are satisfied, he shall issue P.T.Warrant for the production of the accused on or before a specific date.
“When the accused is so transmitted and produced before the Magistrate in pursuance of the P.T.Warrant from prison, the police officer will be entitled to make a request to the Magistrate for authorising the detention of the accused either in police custody or in judicial custody.
“Before the accused is transmitted and produced before the Court in pursuance of a P.T. warrant in connection with a latter case, if he has been ordered to be released in connection with the former case, the jail authority shall set him at liberty and return the P.T. warrant to the Magistrate making necessary endorsement and if only the accused continues to be in judicial custody, in connection with the former case, he can be transmitted in pursuance of P.T. warrant in connection with the latter case,” the Bench clarified.
