A, an accused is arrested by B, a police officer, without a warrant. After such arrest, A was kept in the custody of police for 30 hours without the order of a Magistrate for interrogation in a very sensational case. Is the detention of the accused legal? 

Question: A, an accused is arrested by B, a police officer, without a warrant. After such arrest, A was kept in the custody of police for 30 hours without the order of a Magistrate for interrogation in a very sensational case. Is the detention of the accused legal?

Find the answer to the mains question only on Legal Bites. [A, an accused is arrested by B, a police officer, without a warrant. After such arrest, A was kept in the custody of police for 30 hours without the order of a Magistrate for interrogation in a very sensational case. Is the detention of the accused legal?]

Answer

The right to be produced before a magistrate has got the constitutional protection in form of a fundamental right in Article 22(2) of the Constitution.

It provides that every person who has been arrested and detained in the custody shall be produced before the nearest Magistrate within a period of 24 hours of such arrest and no such person shall be detained in custody beyond the said period without the authority of the Magistrate.

It must, however, be noted that the time of 24 hours shall exclude the time necessary for the journey from the place of arrest to the court of Magistrate. Article 22(1) applies to cases of arrest without a warrant as well as with a warrant.

Section 57 and 76 of CrPC are legislative manifestations of the constitutional right. Section 57 applies to arrest without a warrant while Section 76 applies to arrest with a warrant.

Section 57 provides that police officers shall not detain in custody a person arrested without a warrant for a longer period than what is reasonable and such period shall not exceed 24 hours except with an order of Magistrate under Section 167 of the Code.

Section 167 provides the procedure when the investigation cannot be completed within 24 hours. It also lays down the powers of the Magistrate when the accused is produced before him within 24 hours of arrest. If the police officer fails to produce an arrested person before the Magistrate, he will be guilty of wrongful detention.

In the case of Khatri v. State of Bihar 1981 SCR (2) 408, the court held that the State and its police authorities should see to it that the constitutional, and legal requirement to produce an arrested person before a judicial magistrate within 24 hours of the arrest is scrupulously observed.

Hence in view of the above-mentioned provisions, it can be said that the detention of A beyond the period of 24 hours is illegal and it is immaterial that accused A was kept in custody for interrogation in a sensational case.

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