1. Heard Mr. N.N.B Choudhury, learned counsel for the petitioner and Mr. R.K.D Choudhury, learned Government Advocate, Arunachal Pradesh.
2. In terms of the order of this court dated 9.1.2015, Shri Tapan Dutta has been produced before the court by Mr. T. Buker, S.I of Police, Arunachal Pradesh, Naharlaguri Police Station.
3. This petition has been filed for issuance of writ of Habeas Corpus for production of the brother of the petitioner, Shri Tapan Dutta (accused hereafter).
4. It is stated that the accused is an insurance agent having licence under the Insurance Regulatory and Development Authority (Licensing of Insurance Agents) Regulations, 2000. He is associated with a company called Genex Infra Projects ltd, Kolkata. The accused is a resident of Kolkata.
5. The aforesaid company had collected deposits under various Schemes from depositors in various places of Arunachal Pradesh. Allegation is that on maturity of the deposits, the investors were not repaid their dues.
6. In this connection, Aalo PS Case No. 7/2014, under sections 420/468/406/120(B)/34, IPC was registered. Aalo police arrested the accused from Kolkata on 6.5.2014 On 8.5.2014, hie was produced before the Chief Judicial Magistrate, Aalo, who, thereafter remanded him to police custody for 4 days. Remand of the accused was thereafter extended. Though bail application was filed, no order for bail was passed. In the process, the statutory period of 60 days under sections 167(2), Cr. PC expired without completion of investigation with the accused remaining in detention.
7. Thereafter, the accused was shown arrested in connection with Pasighat PS Case No. 56/2014 registered under sections 420/34, IPC. The accused moved this court for bail by filing Bail Application No. 2777/2014. The bail application was moved in the Principal Seat on receipt of administrative approval from the hon'ble Chief Justice (Acting). This court by order dated 14.11.2014’found that petitioner had completed about 80 days in custody since he was shown arrested on 27.8.2014 Learned Addl. PP had submitted before the court that to the best of her information charge sheet had not been filed. Having regard to the above, prayer for bail was accepted and it was directed that the accused should be released on bail on furnishing bail bond of Rs. 25,000 with 2 sureties of like amount to the satisfaction of the learned Judicial Magistrate, Page: 348First Class, Pasighat subject to the condition that he should continue to co-operate with the investigation of the case and should appear before the 10 as and when required.
8. It is stated that on 19.11.2014, learned Judicial Magistrate, First Class, Pasighat accepted the bail bond submitted on behalf of the accused and issued release order.
9. It is alleged that even after passing of the release order, the accused was not released and he was kept in illegal detention.
10. Request made by the petitioner and other family members and lawyers of the accused for release of the accused went in vain. It is further alleged that whereabouts of the accused Shri Tapan Dutta was not known thereafter. It is under such circumstances, the present Habeas Corpus petition has been filed.
11. On 12.12.2014, Mr. R.K.D Choudhury, learned State Counsel, Arunachal Pradesh submitted before the court that the accused was again arrested in connection with Basar PS Case No. 9/2014. This court therefore directed filing of affidavit by the respondents annexing therewith the first information report in connection with which the accused has been again arrested.
12. Affidavit has since been filed.
13. Upon hearing the learned counsel for the parties and on perusal of the documents on record including the affidavit filed, this court by order dated 9.1.2015 directed production of the accused Shri Tapan Dutta before this court today. Accordingly, Shri Tapan Dutta has been produced before the court.
14. In the affidavit jointly filed by respondent Nos. 2, 3, 4, 5 and 6 it is stated that Shri Tapan Dutta is an accused in Aalo PS Case No. 7/2014 and he was arrested on 6.5.2014 in Kolkata with the assistance of Golabari Police, Howrah in West Bengal. On the same day, Aalo police left Howrah at about 1800 hours along with the accused to Aalo. On 8.5.2014, the police party reached Aalo. and on the same day the accused was produced before the Chief Judicial Magistrate. It is stated that due to continuous train and road journey from West Bengal to Aalo, the accused could not be produced before the court within 24 hours of the arrest. It is further stated that Shri Tapan Dutta has not been granted bail by the court of the learned Chief Judicial Magistrate, Aalo in Aalo Police Case No. 7/2014.
15. Since Shri Tapan Dutta is also an accused in Pasighat PS Case No. 56/2014, he was also shown arrested in connection with the said case.
16. In the meanwhile, the Officer In-charge of Basar PS informed the Page: 349Officer In-charge of Pasighat PS by WT message dated 14.11.2014 that Shri Tapan Dutta was wanted in Basar PS Case No. 9/2014 under sections 409/421/120(B)/34, IPC. Following bail granted by this court in BA No. 2777/2014, Shri Tapan Dutta. was released by the learned Judicial Magistrate, First Class, Pasighat on 19.11.2014 in connection with Pasighat PS Case No. 56/2014.
17. Immediately oh his release, Shri Tapan Dutta was arrested by the Pasighat police from outside the court at, about 4 p.m on 19.11.2014 in connection with Basar PS Case No. 09/2014. It is stated that Shri Tapan Dutta was informed about the grounds of his arrest in Basar PS Case No. 09/2014. From his mobile phone, calls were made to his relatives in the numbers given by Shri Tapan Dutta and they were informed about his arrest in Basar PS Case No. 09/2014. Shri Tapan Dutta was handed over to the Basar Police on 20.11.2014
18. It is further stated that the Officer In-charge of Basar PS issued WT message dated 21.11.2014 informing the OC of Mali Panchghara PS, West Bengal about the arrest of Shri Tapan Dutta who was in custody of Basar Police. The affidavit further discloses that Shri Tapan Dutta was thereafter shown arrested in connection with Itanagar PS Case No. 304/2013 under sections 420/34, IPC. After orders of remand passed by the learned Chief Judicial Magistrate, Shri Tapan Dutta was thereafter lodged in the District Jail, Itanagar where he is presently lodged.
19. Mr, N.N.B Choudhury, learned counsel for the petitioner submits that continued detention of the accused is wholly illegal. He has been ill treated in detention. Because of the aggressive stance of the alleged depositors, it has become impossible to pursue the cases in Arunachal Pradesh as there is threat to the life and liberty of the accused and his family members. In such circumstances neither fair investigation nor free and fair trial would be possible in Arunachal Pradesh.
20. Mr. R.K.D Choudhury, learned State Counsel, Arunachal Pradesh submits that as on date there are 4 pending cases against Shri Tapari Dutta, namely, (1). Aalo PS Case No. 07/2014, (2) Pasighat PS Case No. 56/2014, (3) Basar.PS Case No. 09/2014. and (4) Itanagar PS Case No. 304/2013. He submits that the allegation made by the petitioner that relatives/friends of the accused were not informed about the arrest as well as grounds of arrest of the accused is not correct. There are materials to support the above contention that the relatives/friends were informed about the arrest and grounds of arrest of the accused.
21. From the above, two things are clearly discernible.
Firstly, after the arrest of the accused in Kolkata on 6.5.2014 he was not produced before the nearest magistrate within 24 hours. Respondents Page: 350have admitted in the affidavit that Shri Tapan Dutta was first produced before the learned Chief Judicial Magistrate, Aalo on 8.5.2014, though he was arrested on 6.5.2014
22. Article 22 of the Constitution of India deals with protection against arrest and detention in certain cases. While clauses 1 and 2 deal with arrest, second part of article 22 deals with preventive detention with which the present case is not concerned. Clause 1 provides that no person who is arrested shall be detained in custody without being informed as soon as may be of the grounds for such arrest nor shall he be denied the right to consult and to be defended by a legal practioner of his choice. Clause 2, which is relevant, provides that every 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. The language of clause 2 makes it abundantly clear that the requirements under the, said clause is of mandatory nature, non-compliance of which will render the arrest unconstitutional. Clause 2 makes it very clear that no person who is arrested shall be detained in custody beyond 24 hours without the authority of a Magistrate. In this case, Aalo Police did not produce the accused before the nearest Magistrate upon his arrest on 6.5.2014 and did not obtain any transit remand. Without complying with this requirement he was straight away brought to Aalo PS and produced after 2 days on 8.5.2014 which is illegal and unconstitutional. Unfortunately, learned :Chief Judicial Magistrate, Aalo did not notice this Aspect. Therefore, the very basis of the detention of the accused is clearly unconstitutional and cannot be sustained.
23. Secondly, when this court had granted bail in Pasighat PS Case No. 56/2014, this court was not informed that the accused was also wanted in Basar PS Case No. 09/2014 and Itanagar PS Case No. 304/2013. Even the learned Judicial Magistrate, First Class, Pasighat who had passed the consequential order on 19.11.2014 following the bail order of this court was not informed that Shri Tapan Dutta was wanted in those cases where he is an accused. It is stated in the affidavit that Shri Tapan Dutta was arrested by the Pasighat police on requisition of Basar police from outside the court on 19.11.2014 at about 4 p.m He was handed over to the Basar police on 20.11.2014 who in turn produced the accused before the Magistrate on 21.11.2014 which is again beyond 24 hours of arrest on 19.11.2014 Arresting the accused in a different case from outside the court where he was granted bail without Page: 351disclosing to the court about the need to arrest him in another case is wholly unacceptable.
24. In Uday Chand v. Sk. Mohd. Abdullah, Chief Minister, J & K, (1983) 2 SCC 417, the Apex Court deprecated the practice of withholding information from the court about the requirement to arrest the accused in other cases. It was held that if after order of bail is passed by the court, the authorities of the state consider it fit to arrest a released person for any other offence, if was their bounden duty to apprise the court before taking such person in custody. In the facts of that case the arrests were held to Be contrary to the bail order passed by the Apex Court and accordingly the petitioners of that case were released from custody treating them to be free citizens.
25. Having regard to the above, court is of the view that the accused Shri Tapan Das should now be released as his continued detention has become clearly untenable. As noticed above, he has been granted bail by this court in one out of the 4 cases, i.e, in Pasighat PS Case No. 56/2014, Hie shall now be released on bail in connection with other three cases, naively, Itanagar PS Case No. 304/2013, Basar PS Case No. 09/2014 and Aalo PS Case No. 07/2014 subject to the condition that he shall co-operate with the investigation of the cases and that he shall also appear before this court on, the next date.
26. Since a finding has been recorded that the initial detention of Shri Tapan Dutta is illegal and amounted to violation of articles 21 and 22 of the Constitution of India, question of compensation may. also have to be gone into by this court. On this point, court would like to keep the matter pending. Respondents may file additional-affidavit on this issue, if so advised.
27. List on 6.4.2015 on which date Shri Tapan Dutta shall appear before this court.
28. Accordingly, Shri Tapan Dutta can now walk out of this court as a free man.
29. Registry to inform the concerned authorities.
A copy of this order be furnished, to Mr. R.K.D Choudhury, learned State Counsel, Arunachal Pradesh for doing the needful.