AVADH BEHARI RAI Vs. STATE OF U P

JUDGEMENT

(1.) This is petition under Article 226 of the Constitution. The petitioner, who is a Head Constable in the mounted police in Lucknow, was arrested admittedly at 5. 40 a. m. on 11. 12. 88 in Crime Case No. 499 under Sections 171/384, I. P. C. Police Station Ghazipur District Luck-now. It is indicated by the order dated 12. 12. 88 passed by the Munsif Magistrate (L. C. C. 3) Lucknow that petitioner (as is also alleged by him in the petition) was produced before him at 1. 35 p. m. the next day and was remanded to judicial custody and sent to jail. It is not disputed by the opposite parties on whose behalf we have heard the Assistant Government Advocate, that the petitioner was produced before the Magistrate for remand after the expiry of twenty four hours. This fact is also mentioned by the Magistrate in his order dated 12. 12. 88 in which it is stated by him that the petitioner was produced before him after twenty six hours. This conclusion is obviously wrong as the petitioner admittedly was arrested at 5. 40 a. m. on 11. 12. 88 and was produced before the Magistrate at 1. 35 p. m. the next day which would mean that the petitioner was produced before the Magistrate after about thirty one hours. Article 22 (2) of the Constitution inquires that every person who is arrested and detain ed in custody shall be produced before the nearest Magistrate within a period of twenty four hours of such arrest excluding the time necessary in the journey from the place of arrest to the Court of the Magis trate and no such person shall be detained in custody beyond the said period without the authority of a Magistrate. Since it is not disputed in the instant case that the petitioner was produced before the Magistrate after the expiry of the twenty four hours, we are clearly of the opinion that the detention of the petitioner was in violation of the provisions of Article 22 (2) of the Constitution as also the mandatory provisions contained in Section 167 of the Code of Criminal Procedure which also requires that the person shall be produced before the Magistrate, within twenty four hours. The learned counsel for State claims two hours further time in consideration of the fact that the petitioner was brought from Police Station Ghazipur to the Court. Since we have already observed that the Magistrate ought to have calculated the period of twenty four hours from the time of arrest, i. e. 5. 40 a. m. on 11. 12. 88, then even if the two hours time is allowed as journey time (although we are doubtful whether this could have been allowed) the petitioner was still not produced within the time contemplated by Article 22 (2) of the Constitution of Section 167 of the Code of Criminal Procedure. We are impugned (sic informed) that the remand granted by the Magistrate on 12. 12. 88 would expire on 27. 12. 88. Since, the remand order itself is bad the petitioner can not be kept in detention on judicial custody. For the reasons stated above the petition is allowed and the opposite parties are direct ed to release the petitioner forthwith unless his detention is required in connection with some other case. .