Mumbai: The Bombay high court held that an accused could not claim he was “under arrest” during a waiting period as police had a reasonable explanation of being busy with probe in another case.A brother of a detenu had petitioned the HC for his release and for a declaration that his arrest was illegal and flouted both, the Constitutional provisions of those of the criminal procedural law — the Bharatiya Nagarik Suraksha Sanhita, 2023 that govern arrests and provide that an accused be produced before a magistrate in 24 hours. The arrest was of June 10.Justices Sarang Kotwal and Ranjitsinha Bhonsale in an August 21 judgment said the question before the court was whether the detenu could be said to be arrested as soon as he reached the police station at about 11am or can he be said to be under arrest at 8.15pm to calculate the statutory period of 24 hours.“It cannot be accepted that, the moment the detenu stepped into the police station at around 11 on 10 June, he was under arrest. Article 22(2) uses the phrase ‘arrested and detained in custody’. Therefore, we do not find that this is a case of illegal detention,’’ said the HC, disposing the petition without any relief.The HC on hearing additional public prosecutor Supriya Kak said police were busy in another case where the accused in that case had suffered health issues and had to be taken to hospital. “This is a reasonable explanation. For that purpose, if the detenu in this case was made to wait in the police station, that would not amount to his arrest. There is nothing to show that he was not allowed to contact or converse with his relatives,’’ the HC said, finding it not to be a case of illegal detention as claimed by the accused and distinguished the facts, from other cases which his counsel Priyanka Dubey had cited to back his claim.The petitioner’s counsel cited a judgment where court had released a detenu holding that merely because he was in touch with family members on his phone would not mean he was not in custody or control of police. The HC said that case was distinguishable on facts as there the accused was already arrested and in custody of Pune police before he was taken to Baramati.In the present case, the HC said the police had called the accused to the police station for enquiry. The HC observed that once the accused arrived, it was “well within the powers of the police’’ to first make the enquiry and effect the arrest, only on satisfying itself of its necessity.The HC expressed satisfaction with the reason given by the investigating officer on why the arrest was not made immediately. “The detenu was made to wait so that the preliminary enquiry could be conducted. It is reasonable to expect from the police officers to satisfy themselves about the involvement of an accused before effecting actual arrest. The police had taken sufficient precaution in this case. Therefore, we do not find fault with the procedure,’’ the HC held. He was produced before a court within 24 hours of his 8.15pm arrest.What The Law Says* Article 22 of the Indian Constitution:The Article protects against arrest and detention in certain casesEvery person who is arrested and detained in custody shall be produced before the nearest magistrate within a period of 24 hours of such arrest excluding the time necessary for the journey from the place of arrest to the court of the magistrate and no such person shall be detained in custody beyond the said period without the authority of a magistrate* Section 58, BNSS:Person arrested not to be detained more than 24 hoursNo 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 187, exceed 24 hours exclusive of the time necessary for the journey from the place of arrest to the magistrate’s court, whether having jurisdiction or not
