The Bombay High Court, in a recent case of Hem Prabhakar Shah v the State of Maharashtra, has held that when a person is intercepted & detained in pursuance of a Look Out Circular (“LOC”), such a detention is equivalent to an arrest and the police is mandatorily required to produce such a person before a Magistrate within 24 hours of the arrest and must disclose grounds of arrest, failing which, such an arrest will be illegal. Brief Facts: The Petitioner, a Singapore national, landed at Ahmedabad Airport on 13 August 2024. Upon landing, he was intercepted and detained by the Immigration Officers at around 10 PM based on an LOC, which was issued at the instance of State of Maharashtra. Without providing any further information, he was transferred to the custody of Ahmedabad Airport police station, where he was detained in police lock up till 1 PM on 14 August 2024. Maharashtra Police officer arrived in Ahmedabad at 3 PM, the Petitioner was brought to Mumbai by air on 14 August at 7 PM. Finally, he was shown to be arrested at Azad Maidan Police station at 11.08 PM on 14 August 2024. On 15 August 2024, the Petitioner was produced before the Magistrate at around 12.30 PM. The Magistrate had authorized his remand initially till 17 August 2024 and was extended till 21 August 2024. The Petitioner had sought issuance of writ of Habeas Corpus on the ground that he was illegally detained. He had also challenged Remand Orders claiming that the arrest was not in accordance with law. Contention of the Parties: The Petitioner contended that his detention at the airport itself amounted to arrest. He submitted that as his movements were restrained resulting in deprivation of personal liberty, the detention itself amounted to arrest. Subsequently, the Police failed to produce him before the nearest Magistrate within 24 hours of the arrest, in violation of Article 22(2) of the Constitution and section 57 of Code of Criminal Procedure, 1973 (“CrPC”). He also contended that the arrest was illegal as grounds of arrest were not communicated to him in contravention of Article 22(1) of the Constitution and Section 50 of the CrPC, which makes it mandatory for a police officer or a person effecting an arrest to disclose full particulars of offence or other grounds of arrest. The State of Maharashtra defended the action and submitted that there was no infraction of any right of the Petitioner. It was argued that when he was spotted at the airport, he was apprehended and his identity was established. In order to prevent him from escaping, he was only taken into formal custody and that it did not amount to arrest. It was also argued that reasons for arrest were communicated to the Petitioner. Held: After considering rival submissions, the Bombay High Court referred to the affidavit affirmed by the police inspector, Azad Maidan police station, Mumbai. The affidavit stated that the Petitioner was detained as per the LOC and that, from 13 August 2024 at 10 PM until the custody was received by Azad Maidan Police Station on 14 August 2024, the procedure was part of the arrest process. Therefore, the Hon’ble Court deduced that the Petitioner indeed was arrested at the airport at 10 PM. And, as he was detained for almost 30 hours till his production before the Magistrate, the same is in violation of section 57 of the CrPC and Article 22(2) of the Constitution. The Hon’ble Court also reiterated the difference between reasons of arrest and grounds of arrest and held that the police did comply with Section 50 of the CrPC and Article 22(1) of the Constitution by not disclosing the grounds of arrest to the Petitioner. In view of the aforesaid observations, the Hon’ble Court declared that the arrest of the Petitioner was illegal, as a result, subsequent remand orders were also declared as illegal. MHCO Comment: The view taken by the Bombay High Court shows its unwavering commitment to personal liberty and its resolve to ensure that constitutional safeguards and processes of law are respected and followed in letter and spirit by the police. This decision will hopefully act as a deterrent to excesses of law at the time of arrest and bring in compliance of the basic constitutional guarantees by the police.

This update was released on 16 Sep 2024.

The views expressed in this update are personal and should not be construed as any legal advice. Please contact us directly on +91 22 40565252 or legalupdates@mhcolaw.com for any assistance.

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