# Manoj Gupta @ Manoj Kumar Gupta v. State of U.P. & Anr. Opp. Parties

- **Citation:** (2023) 4 ILRA 325
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-03-28
- **Case number:** Application u/s 482 No. 706 of 2021
- **Bench:** Umesh Chandra Sharma
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/manoj-gupta-manoj-kumar-gupta-v-state-of-u-p-anr-opp-parties-49919
- **Pages:** 11

## Headnote

A. Criminal Law - Code of Criminal
Procedure, 1973-Section 482 & Indian
Penal Code, 1860-Sections 147, 148,
149,302, 34, 307, 120B and Section 7 of
Criminal
Law
(Amendment)
Act-The
applicant was arrested at Chindwara,
Madhya Pradesh by U.P. Police-No transit
remand was obtained by the U.P. Police
from
the
concerned
Magistrate
at
Chindwara-applicant was produced before
the remand Magistrate Kanpur Nagar,
much after the expiry of 24 hours from the
date and time of his arrest.-the detention
of applicant by police after expiry of a
period of 24 hours from the time of his
arrest is manifestly illegal, the order of
remand passed by the Magistrate Kanpur
Nagar will not wipe out the aforesaid
illegality-Thus, the fact that the charge
sheet has been submitted against the
applicant within 90 days from the date
subsequent to the order of remand is
wholly misconceived and is of no help to
the state or the opposite party.(Para 1 to
38)

The application is allowed. (E-6)
List of Cases cited:

## Text

4 All. Manoj Gupta @ Manoj Kumar Gupta Vs. State of U.P. & Anr.
325
intoxicant) or animal referred to in subsection (1), the owner thereof shall be given
an option to pay in lieu of its confiscation
such fine as the Collector thinks adequate,
not exceeding its market value on the date
of its seizure. Therefore, the option given to
the petitioner to pay the market value of the
vehicle as ascertained by ARTO in lieu of
its confiscation and therefore, it cannot be
said that the petitioner has become entirely
deprived of his vehicle by the impugned
order and if the vehicle has not been
auctioned yet, the collector will afford him
an opportunity to deposit the market price
of the vehicle as determined by ARTO
concerned in lieu of confiscation and if he
does so, the vehicle will be released in his
favour and the amount deposited by him in
lieu of confiscation will lie in the custody
of Government subject to provisions of
sub-Section 8 of Section 72.

22. In view of the foregoing
discussions, I find no illegality, irregularity
or perversity in impugned orders passed by
learned
District
Judge
as
well
as
Collector/ADM (F&R) concerned and the
appeal is liable to be dismissed.

23. With above observations, the
present writ petition stands dismissed.
----------
(2023) 4 ILRA 325
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 28.03.2023

BEFORE

THE HON'BLE UMESH CHANDRA SHARMA, J.

Application u/s 482 No. 706 of 2021

Manoj Gupta @ Manoj Kumar Gupta
 ...Applicant
Versus
State of U.P. & Anr. ...Opp. Parties
Counsel for the Applicant:
Sri Shashank Tripathi, Sri Atharva Dixit, Sri
Manish Tiwary (Senior Adv.)

Counsel for the Opp. Parties:
G.A., Sri Manish Tandon, Sri Rakesh Dubey, Sri
Sayed Imran Ibrahim

A. Criminal Law - Code of Criminal
Procedure, 1973-Section 482 & Indian
Penal Code, 1860-Sections 147, 148,
149,302, 34, 307, 120B and Section 7 of
Criminal
Law
(Amendment)
Act-The
applicant was arrested at Chindwara,
Madhya Pradesh by U.P. Police-No transit
remand was obtained by the U.P. Police
from
the
concerned
Magistrate
at
Chindwara-applicant was produced before
the remand Magistrate Kanpur Nagar,
much after the expiry of 24 hours from the
date and time of his arrest.-the detention
of applicant by police after expiry of a
period of 24 hours from the time of his
arrest is manifestly illegal, the order of
remand passed by the Magistrate Kanpur
Nagar will not wipe out the aforesaid
illegality-Thus, the fact that the charge
sheet has been submitted against the
applicant within 90 days from the date
subsequent to the order of remand is
wholly misconceived and is of no help to
the state or the opposite party.(Para 1 to
38)

The application is allowed. (E-6)
List of Cases cited:

1. Madhu Limaye & ors. Vs St. of Bih. (1969)
AIR SC 1014

2. Manoj Vs St. of M.P. (1999) 3 SCC 715
(Delivered by Hon'ble Umesh Chandra
Sharma, J.)

1. Heard Mr. Anoop Trivedi, the
learned senior counsel assisted by Mr.
Ramesh Chandra Agrahari, the learned
counsel for applicant-Asim @ Pappu
Smart, Mr. Sayed Imran Ibrahim, the
326 INDIAN LAW REPORTS ALLAHABAD SERIES
learned counsel for applicant- Manoj Gupta
@ Manoj Kumar Gupta, Mr. Manuraj
Singh along with Mr. Prashant Kumar, the
learned A.G.A. for State and Mr. Rakesh
Dubey, the learned counsel representing
first informant/opposite party-2 in both the
applications.

2. Perused the record.

3. Mr. Sayed Imran Ibrahim, the
learned counsel for applicant- Manoj Gupta
@ Manoj Kumar Gupta submits that the
application filed by aforesaid applicant has
been rendered infructuous by efflux of
time. As such, on instructions received by
him, he does not wish to press the
application.

4. Learned A.G.A. for state and Mr.
Rakesh
Dubey,
the
learned
counsel
representing first informant/opposite party2 have no objection to the prayer made by
learned counsel for applicant-Manoj Gupta
@ Manoj Kumar Gupta.

5. Consequently, Application under
482 Cr.P.C. No. 706 of 2021 (Manoj Gupta
@ Manoj Kumar Gupta Vs. State of U.P.
and another) is dismissed as having
rendered infructuous.

6. Criminal Misc. Application under
section 482 Cr.PC No. 19101 of 2020
(Asim @ Pappu Smart Vs. State of U.P. and
another) has been filed by applicant Asim
@ Pappu Smart challenging the order dated
01.10.2020 passed by Chief Metropolitan
Magistrate, Kanpur Nagar in Criminal Case
No. 15681 of 2020 (State Vs. Mohd. Asif
@ Pappu Smart and Others) under Sections
147, 148, 149, 307, 302, 34, 120B IPC and
Section 7 Criminal Law Amendment Act,
Police
Station-Chakeri,
District-Kanpur
Nagar, arising out of Case Crime No. 425
of 2020 (State Vs. Mohd. Asim @ Pappu
Smart) under Sections 147, 148, 149, 302,
34, 307, 120-B I.P.C. and Section 7
Criminal Law (Amendment) Act, Police
Station Chakeri, District-Kanpur Nagar,
whereby the application for default bail
filed by applicant has been rejected.
Consequently, applicant, who is in custody,
has been denied default bail.

7. Record shows that in respect of an
incident, which is alleged to have occurred
on 20.06.2020, a prompt F.I.R. dated
20.06.2020
was
lodged
by
first
informant/opposite party-2, Dharmendra
Singh Sengar and was registered as Case
Crime No. 425 of 2020 (State Vs. Mohd.
Asim @ Pappu Smart) under Sections 147,
148, 149, 302, 34 I.P.C. and Section 7
Criminal Law (Amendment) Act, Police
Station Chakeri, District-Kanpur Nagar. In
the aforesaid F.I.R., six persons, namely,
Mohd. Asif @ Pappu Smart, Saud Akhtar,
Deenoo
Upadhyay,
Aridaman
Singh,
Mahfooz Akhtar and Manoj Gupta have
been nominated as named accused, whereas
certain unknown persons have also been
arraigned as accused.

8. The gravamen of the allegations
made in the F.I.R is to the effect that named
accused
alongwith
their
associates
conspired/committed the crime in question
by using firearm on account of which, one
Pintoo Sengar sustained firearm injury and
died on the spot.

9. After registration of aforesaid
F.I.R., Investigating Officer proceeded with
statutory investigation of above-mentioned
case crime number in terms of Chapter XII
Cr.P.C. He first took possession of the dead
body of the deceased and accomplished the
preliminary formality. Thereafter, a detailed
police scroll was prepared and the dead
4 All. Manoj Gupta @ Manoj Kumar Gupta Vs. State of U.P. & Anr.
327
body of the deceased was dispatched for
postmortem on 20.06.2020. Accordingly,
post-mortem of the body of deceased was
conducted on the same day i.e. on
20.06.2020. In the opinion of Autopsy
Surgeon, the cause of death of deceased
was shock and hemorrhage as a result of
ante-mortem firearm injuries

10.

Subsequent
to
above,
Investigating
Officer
proceeded
to
undertake other formalities. Attempts were
made to secure the arrest of named
accused. Information appears to have been
received by Investigating Officer that
applicant, who is a named accused in
concerned case crime number, is residing at
Chindwara, Madhya Pradesh, Accordingly,
Commissioner of Police, Commissionerate
Kanpur Nagar constituted a police team,
which went to Chhindwara, Madhya
Pradesh to secure the arrest of accusedapplicant. On 01.07.2020 applicant was
arrested by U.P. Police at Chhindwara,
Madhya Pradesh but produced before
remand Magistrate at Kanpur Nagar on
03.07.2020 i.e. after an expiry of a period
of 24 hours from the time of his arrest.

11. In the aforesaid background,
applicant filed his bail application in terms of
Section 167 (2) Cr.PC. claiming default bail
before the Chief Judicial Magistrate, Kanpur
Nagar primarily on the grounds that since the
charge-sheet has been submitted beyond the
period of 90 days from the date of the arrest of
applicant i.e. 01.07.2020, therefore, he is liable
to be enlarged on bail by default. In support of
above, it was further stated that the applicant
was arrested on 01.07.2020 at Chindwara,
Madhya Pradesh. However, applicant was
produced before the remand Magistrate on
03.07.2022 at Kanpur Nagar i.e. after an
expiry of more than 24 hours from the time of
his arrest which is illegal. Consequently, the
detention of applicant after expiry of 24 hours
from the time of his arrest is illegal. As the
detention of applicant beyond 24 hours is
illegal his subsequent detention after the order
of remand passed by concerned Magistrate is
also illegal. The remand order passed by
concerned Magistrate on 03.07.2022 will not
wipe out the aforesaid illegality which came
into existence on account of the failure of the
prosecution to act diligently by producing the
applicant before the remand Magistrate within
aforesaid period. The prosecution cannot be
permitted to derive benefit from it's own
wrong by placing reliance upon the order of
remand passed by remand Magistrate and on
basis thereof contend that the irregularity, if
any, in the detention of applicant shall be
wiped out with the passing of the remand
order by the remand Magistrate. Consequently,
applicant is entitled to be released on bail by
default.

12. Prayer made by applicant did not
find favour with the court below. Concerned
Magistrate concluded that since applicant was
produced before remand Magistrate on
03.07.2022, the period of 90 days shall be
counted from the next date i.e. 04.07.2020.
Since the charge sheet has been submitted
against applicant on 01.10.2020 which is
before the expiry of a period of 90 days from
the date subsequent to the order of remand,
therefore, applicant is not entitled to be
enlarged on default bail. Consequently,
concerned Magistrate declined bail by default
to applicant by means of impugned order
dated 01.10.2020.

13. Thus feeling aggrieved by above,
applicant has now approached this Court by
means of present application under Section
482 Cr.P.C.

14.

Present
application
was
vehemently opposed by Mr. Rakesh Dubey,
328 INDIAN LAW REPORTS ALLAHABAD SERIES
the learned counsel for first informant and
the learned A.G.A.. Referring to the
material on record, the learned counsel for
first informant submits that it is clearly
recorded in the case diary that applicant
was arrested at Kanpur on 03.07.2020 and
thereafter
produced
before
remand
Magistrate on 03.07.2020. Since the
charge-sheet has been submitted against
applicant on 01.10.2020 i.e. before expiry
of a period of 90 days from the date
succeeding 03.04.2020, therefore, applicant
is not entitled to claim default bail.

15. Learned A.G.A. has also opposed
the present application.

16. After hearing the respective
counsel for the parties on 17.01.2023, this
Court came to the conclusion that there is a
serious
dispute
between
the
parties
regarding the date and place of arrest of
applicant. Accordingly, Court passed the
following order:

"Supplementary affidavit filed by Mr.
Rakesh
Dubey,
learned
counsel
representing opposite party no.2 in court
today is taken on record.

Heard Mr. Anoop Trivedi, the learned
Senior Counsel assisted by Sri Ramesh
Chandra Agrahari, the learned counsel
for applicant, the learned A.G.A. for State
and Mr. Rakesh Dubey, the learned
counsel representing first informantopposite party no.2.

This is an application for default bail.
One of the issue that has cropped up
during the course of hearing for default
bail is regarding the date of arrest of the
accused-applicant.
According
to
the
learned Senior Counsel, the accused was
arrested
on
01.07.2020
at
District
Chindwara,
Madhya
Pradesh.
The
document evidencing the aforesaid fact
are on record as Annexures 4, 5, 6 and 7
to the affidavit as well as the information
received under the RTI Act, copy of which
is on record as Annexure RA-1 to the
rejoinder affidavit to the counter affidavit
filed by State.

In the counter affidavit filed by the
State with reference to the case diary, it
has been averred in paragraph 10 that the
applicant was arrested on 03.07.2020 at
Kanpur. However, there is no document
accompanying the counter affidavit filed
by the State regarding above.

From perusal and evaluation of the
material on record as noted hereinabove,
there is a serious dispute between the
parties regarding the date of arrest of the
accused-applicant. Since the right to
default bail is being canvassed before this
Court, therefore the date of arrest has to
be categorical and specific by this Court.
In view of the conflicting claims and
counter claims of the parties, it is hereby
directed that the Commissioner of Police
Commissionerate, Kanpur shall file his
personal affidavit with regard to the actual
date and place of arrest of the applicant
with reference to the material on record
that is Annexures 4, 5, 6 and 7 to the
affidavit as well as Annexure RA-1 to the
rejoinder affidavit filed by applicant to the
counter affidavit filed by State.

Let
the
requisite
supplementary
affidavit be filed on or before 24.01.2023.

Matter shall reappear as unlisted on
30.01.2023 at 2:00 PM.

Copy of the order be supplied to the
learned A.G.A. for compliance during
course of the day.

Order Date :- 17.1.2023 "

17. Pursuant to above order dated
17.01.2023,
Commissioner
of
Police,
Police Commissionarate, Kanpur Nagar
constituted
a
three
member
Special
4 All. Manoj Gupta @ Manoj Kumar Gupta Vs. State of U.P. & Anr.
329
Investigating Team i.e. SIT to examine the
matter and submit its report. The SIT so
constituted submitted its report dated
03.02.2023. The copy of same has been
brought on record by means of a
compliance
affidavit
on
behalf
of
Commissioner
of
Police,
Police
Commissionerate, Kanpur Nagar filed by
the learned A.G.A in Court.

18. Perusal of the aforesaid report
submitted by the SIT clearly goes to show
that
the
applicant
was
arrested
at
Chhindwara,
Madhya
Pradesh
on
01.07.2020 but produced before the remand
Magistrate at Kanpur Nagar on 03.07.2020
i.e. beyond 24 hours of his arrest.

19. In view of the above noted factual
position, that has emerged before this
Court, Mr. Anoop Trivedi, the learned
senior counsel for applicant has urged that
since arrest of applicant was made on
01.07.2020 but applicant was produced
before remand Magistrate after expiry of 24
hours
i.e.
on
03.07.2020,
which
is
manifestly illegal in view of Section 57
Cr.P.C. He, therefore, submits that police
custody of applicant after expiry of 24
hours from the date and time of arrest of
applicant is illegal. The order of remand
passed
by
remand
Magistrate
dated
03.07.2020 purported to be in exercise of
jurisdiction under Section 167(2) Cr.P.C.
will not wipe out the illegality in the
detention of applicant beyond 24 hours
which has emerged on account of the
failure of prosecution to produce the
applicant before remand Magistrate within
24 hours from the date and time of his
arrest. On the above premise, the learned
senior counsel for applicant submits that
applicant is thus clearly entitled to default
bail in terms of Section 167(2) Cr.P.C. To
buttress his submission, he has relied upon
the following judgements of Supreme
Court Madhu Limaye and others Vs.
State of Bihar AIR 1969 Supreme Court
1014 and Manoj Vs. State of Madhya
Pradesh 1999 (3) SCC 715.

20. He also submits that the Apex
Court in the case of Madhu Liimaye
(Supra) examined the right of a detenue to
be produced before remand Magistrate
within 24 hours of his arrest, in the light of
the
constitutional
provision
and
the
provisions of the Code (Cr.P.C.) and on
basis thereof came to the conclusion that in
no circumstance the detenue can be
deprived of his right to be produced before
the remand Magistrate within 24 hours of
his arrest. According to the learned senior
counsel, paragraphs 11 and 12 of the report
are relevant for the issue in hand. He has
thus laid much emphasis upon same.

21. According to the learned senior
counsel, the issue that has cropped up for
consideration before this Court in present
application
was
incidentally,
directly
considered by the Supreme Court in Manoj
(supra). Paragraph 9 of the report recapitulates the issue involved herein as well
as the view delineated by the Court.
Accordingly, the same has been relied upon
by the learned senior counsel.

22. Ratio laid down in both the
judgments is to the effect that in case an
accused, who has been taken into custody
but has not been produced before remand
Magistrate within 24 hours of his arrest as
required under the constitutional mandate
i.e. Article 22(1) of the Constitution of
India, then the detention of such an accused
beyond the period of 24 hours from the
time of his arrest shall be rendered illegal
and the same cannot get cured as legal with
the passing of an order of remand by the
330 INDIAN LAW REPORTS ALLAHABAD SERIES
remand Magistrate in exercise of power
under Section 167(2) Cr.P.C.

23. On the above premise, it is thus
vehemently urged by the learned senior
counsel for applicant that the impugned
order denying default bail to the applicant
cannot be sustained. The same is, therefore,
liable to be quashed by this Court and
applicant is entitled to be enlarged on bail.

24. Per contra, the learned A.G.A. for
State has opposed the present application.
He submits that it is an undisputed fact that
applicant is involved in a heinous offence
which is punishable under Section 302
I.P.C. Applicant is involved in a crime
which is not private in nature but a crime
against
society.
Applicant
has
been
avoiding the judicial process. He was
arrested by U.P. Police and thereafter
produced before the remand Magistrate on
03.07.2022. Once the order of remand has
been passed by concerned Magistrate, the
irregularity, if any, in the detention of
applicant beyond 24 hours from the time of
his arrest stands cured. As such, the claim
of applicant for default bail on the ground
as
noted
herein
above
is
wholly
misconceived. No illegality has been
committed by court below in passing the
impugned order. It is thus strenuously
urged by the learned counsel for first
informant that no indulgence be granted by
this Court in favour of applicant.

25. Mr. Rakesh Dubey, the learned
counsel
representing
first
informant/opposite party-2 has adopted the
arguments raised by learned A.G.A.

26. In addition to above, the learned
counsel
representing
first
informantopposite party 2 submits that once the order
of remand has been passed by the remand
Magistrate in exercise of jurisdiction under
Section 167 (2) Cr.P.C., the right to claim
default bail will be available only if the
charge sheet has not been submitted within
a period of 90 days from the date
subsequent to the order of remand. In the
present case, the police report under
Section 173(2) Cr.P.C.(charge-sheet) has
been submitted on 01.10.2020 which is
within a period of 90 days from the date
subsequent to the date of remand order
itself. As such, the claim of applicant for
grant of default bail is misconceived and
therefore, present application is liable to be
dismissed.

27. Having heard Mr. Anoop Trivedi,
the learned Senior Counsel for applicant,
Mr. Manuraj Singh and Mr. Prashant
Kumar, the learned A.G.A. for State and
Mr. Rakesh Dubey, the learned counsel
representing first informant/opposite party2, this Court finds that following issues
need to be answered before considering the
claim of applicant for grant of default bail.

I. What is the actual date and place of
arrest of the applicant.

II. On what date the applicant was
produced before remand Magistrate after
his arrest. In case, the applicant was
produced before remand Magistrate after
expiry of a period of 24 hours from the date
and time of his arrest then the detention of
applicant subsequent to the order of remand
passed by concerned Magistrate shall be
rendered legal or irrespective of above shall
continue to be illegal.

III. If the detention of applicant
beyond 24 hours is proved to be illegal then
whether applicant is entitled to claim
default bail or the remand order passed by
the remand Magistrate even after expiry of
a period of 24 hours from the date and time
of arrest of applicant will wipe out the
4 All. Manoj Gupta @ Manoj Kumar Gupta Vs. State of U.P. & Anr.
331
irregularity, if any, in the detention of the
applicant beyond 24 hours of his arrest Or
the remand order passed by the remand
Magistrate after expiry of a period of 24
hours from the date and time of arrest of
applicant will not wipe out the right of the
applicant as guaranteed by Article 22(1) of
the Constitution and the applicant, is
entitled to default bail.

28. All the issues are interlinked and
intertwined and therefore incapable of
being dealt with, in isolation of each other.
Accordingly, they are taken up together.

29. The Court takes notice of the fact
that upon the rival submissions being urged
before this Court regarding the actual date,
time and place of arrest of applicant, this
Court in order to ascertain the factual
position regarding the day, date, time and
place of arrest of applicant, passed the
order dated 17.01.2023 which has already
been quoted herein above. Pursuant to
above
order
dated
17.01.2023,
the
Commissioner
of
Police,
Police
Commissionerate,
Kanpur
Nagar
constituted a three member team i.e. SIT.
The said SIT team has examined the
documents and also verified the documents
relied upon by the learned senior counsel
for applicant in support of his contention
that applicant was arrested on 01.07.2020
at
Chindwara,
Madhya
Pradesh
by
conducting
a
fact
finding
enquiry.
Thereafter, the SIT submitted its report
dated 03.02.2023. Aforesaid report has
been brought on record as Annexure-1 to
the affidavit of compliance filed by the
Commissioner
of
Police,
Police
Commissionerate, Kanpur before this Court
through the learned A.G.A. The said report
clearly goes to show that the accusedapplicant was arrested at Chhindwara,
Madhya Pradesh on 01.07.2020 and was
thereafter produced by the UP police before
the remand Magistrate, at Kanpur Nagar on
03.07.2020. Accused-applicant was handed
in the Supurdagi of U.P. Police also. Thus
the stand of the State before this Court is
that
the
applicant
was
arrested
on
01.07.2020 at Chindwara, Madhya Pradesh
but was produced before the remand
Magistrate at Kanpur Nagar on 03.07.2020
i.e. after expiry of a period of 24 hours
from the date and time of his arrest.

30. The right of an accused to be
produced before the remand Magistrate
within 24 hours of his arrest is a
fundamental right of the accused by virtue
of Article 22 (1) of the Constitution of
India. The said Article has been enshrined
for protecting the life and liberty of
citizens. It is like a safeguard against the
might of the State. It manifests the
principle of Rule of law. For ready
reference, Article 22 (1) of the Constitution
of India is reproduced herein-under:

" Article 22(1)

(1) 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 practitioner of his
choice.

31. The scope of Article 22(1) of the
Constitution of India and the nature and
scope of the right which flows in favour of
a detenue by reason of the said Article
came to be examined by the Supreme Court
in the case of Madhu Limaye (Supra).
The Apex Court examined the said question
in the light of the provisions of the
Constitution the Code i.e. (Cr.P.C.) and the
submissions urged before it. The Court
ultimately
delineated
its
views
in
332 INDIAN LAW REPORTS ALLAHABAD SERIES
paragraphs 11 and 14 of the report, which
read as under:

"11 Article 22(1)embodies a rule
which has always been regarded as vital
and
fundamental
for
safeguarding
personal liberty in all legal systems where
the rule of law prevails. For example, the
6th amendment to the Constitution of the
United States of America contains similar
provisions and so does Article XXXIV of
the Japanese Constitution of 1946. In
England whenever an arrest is made
without a warrant, the arrested person has
a right to be informed not only that he is
being arrested but also of the reasons or
grounds for the arrest. The House of
Lords in Christie & Another v. Leachinsky
((1947) 1 All EER 567) went into the
origin and development of this rule. In the
words of Viscount Simon if a policeman
who entertained a reasonable suspicion
that X had committed a felony were at
liberty to arrest him and march him off to
a police station without giving any
explanation of why he was doing this, the
prima facie right of personal liberty would
be gravely infringed. Viscount Simon laid
down several propositions which were not
meant to be exhaustive. For our purposes
we may refer to the first and the third :

"1. If a policeman arrests without
warrant upon reasonable suspicion of
felony, or of other crime of a sort which
does not require a warrant, he must in
ordinary circumstances inform the person
arrested of the true ground of arrest. He is
not entitled to keep the reason to himself
or to give a reason which is not the true
reason. In other words, a citizen is entitled
to know on what charge or on suspicion of
what crime he is seized.

2. X X X X

3. The requirement that the person
arrested should be informed of the reason
why he is seized naturally does not exist if
the circumstances are such that he must
know the general nature of the alleged
offence for which he is detained."

Lord Simonds gave an illustration of
the circumstances where the accused must
know why he is being arrested.

"There is no need to explain the
reasons of arrest if the arrested man is
caught red-handed and the crime is patent
to high Heaven."

The two requirements of clause (1)
ofArticle 22are meant to afford the earliest
opportunity to the arrested person to
remove any mistake, misapprehension or
misunderstanding in the minds of the
arresting authority and, also, to know
exactly what the accusation against him is
so that he can exercise the second right,
namely, of consulting a legal practitioner
of his choice and to be defended by him.
Clause (2) ofArticle 22provides the next
and most material safeguard that the
arrested person must be produced before a
Magistrate within 24 hours of such arrest
so
that
an
independent
authority
exercising judicial powers may without
delay
apply
is
mind
to
his
case.
TheCriminal
Procedure
Codecontains
analogous
provisions
inSection
60and340but
out
Constitution-makers
were anxious to make these safeguards an
integral part of fundamental rights. This
is what Dr. B. R. Ambedkar said while
moving for insertion ofArticle 15-A (as
numbered in the Draft Bill of the
Constitution)which
corresponded
to
presentArticle 22 :

"Article 15-Amerely lifts from the
provisionsof
the
Criminal
Procedure
Codetwo
of
the
most
fundamental
principles which every civilised country
follows as principles of international
justice. It is quite true that these two
provisions contained in clause (1) and
4 All. Manoj Gupta @ Manoj Kumar Gupta Vs. State of U.P. & Anr.
333
clause (2) are already to be found inthe
Criminal Procedure Codeand thereby
probably it might be said that we are really
not making any very fundamental change.
But we are, as I contend, making a
fundamental change because what we are
doing by the introduction ofArticle 15-Ais
to put a limitation upon the authority both
of Parliament as well as of the Provincial
Legislature not to abrogate the two
provisions,
because
they
are
now
introduced in our Constitution itself."

"14.Once it is shown that the arrests
made by the police officers were illegal, it
was necessary for the State to establish that
at the stage of remand the Magistrate
directed detention in jail custody after
applying his mind to all relevant matters.
This the State has failed to do. The remand
orders are patently routine and appear to
have been made mechanically. All that Mr.
Chagla has said is that if the arrested
persons wanted to challenge their legality
the High Court should have been moved
under appropriate provisionsof the Criminal
Procedure Code. But it must be remembered
that Madhu Limaye and others have, by
moving this court underArt. 32of the
Constitution, complained of detention or
confinement in jail without compliance with
the constitutional and legal provisions. If
their detention in custody could not
continue after their arrest because of the
violation ofArt. 22(1)of the Constitution they
were entitled to be released forthwith. The
orders of remand are not such as would
cure the constitutional infirmities. This
disposes of the third contention of Madhu
Limaye."

32. The same issue came up for
consideration again before the Supreme
Court in Manoj (supra), weherein Court
concluded in paragraph 9 of the report, as
follows:-

"Here the prayer for bail is opposed
on the ground that detention is without
such authorisation. Can the benefit of bail
be denied on such a ground?Section
167(1)of the Code is relevant in this
context as it enjoins on the police officer
concerned a legal obligation to forward
the arrested accused to the nearest
magistrate. That sub-section reads thus.

"Whenever any person is arrested
and detained in custody, and it appears
that the investigation cannot be completed
within the period of twenty-four hours
fixed bysection 57, and there are grounds
for believing that the accusation or
information is well-founded, the officer in
charge of the police station or the police
officer making the investigation, if he is
not below the rank of subb-inspector, shall
forthwith transmit to the nearest judicial
Magistrate a copy of the entries in the
diary hereinafter prescribed relating to the
case, and shall at the same time forward
the accused to such Magistrate." .

33. On the above premise, Mr. Anoop
Trivedi, the learned Senior counsel submits
that it is now a proved fact that the
applicant was arrested on 01.07.2020 at
Chindwara, Madhya Pradesh but was
produced before the remand Magistrate at
Kanpur Nagar on 03.07.2020 i.e. after
expiry of a period of 24 hours which is in
clear derogation of Section 57 Cr.P.C. As a
result, the right of the applicant as
guaranteed under Article 22(1) of the
Constitution
of
India
stood
clearly
infringed. The detention of the applicant
after expiry of a period of 24 hours from
the date and time of his arrest is, therefore,
clearly illegal The order of remand dated
03.07.2020
passed
by
the
remand
Magistrate at Kanpur Nagar, whereby
applicant was sent to judicial remand will
not wipe out the illegality in the detention
334 INDIAN LAW REPORTS ALLAHABAD SERIES
of the applicant beyond 24 hours from the
time of his arrest and therefore, applicant is
clearly entitled to default bail.

34. Learned A.G.A for State and Mr.
Rakesh Dubey, the learned counsel for first
informant have opposed this application.
They have reiterated their submissions as
already noted above. It is again urged that
applicant is a named accused and involved
in a heinous offence punishable under
Section 302 I.P.C. Criminality committed
by applicant is a crime against society.
Applicant has been avoiding the process of
the Court. Applicant could be arrested only
on 01.07.2020 i.e. after 11 days from the
date of the FIR and was produced before
the remand Magistrate on 03.07.2020.
However with the passing of the order of
remand by the remand Magistrate on
03.07.2020, whereby applicant was sent to
judicial remand the irregularity, if any, in
the detention of applicant beyond 24 hours
from the time of his arrest gets wiped out
and the procedural defect shall stand cured.
In view of above and coupled with the fact
that the charge sheet was submitted against
applicant before expiry of 90 days from the
date subsequent to the date on which
applicant was remanded to judicial custody,
no ground exists to enlarge the applicant on
bail by default. As such, no interference is
warranted
by
this
Court
in
present
applications

35. Having heard, the learned Senior
counsel for applicant, the learned A.G.A.
for State, Mr. Rakesh Dubey, the learned
counsel for first informant-opposite party 2
and upon perusal of record, the position
that has emerged is that applicant is a
named accused in Case Crime No. 425 of
2020 (State Vs. Mohd. Asim @ Pappu
Smart) under Sections 147, 148, 149, 302,
34, 307, 120-B I.P.C. and Section 7
Criminal Law (Amendment) Act, Police
Station Chakeri, District-Kanpur Nagar.
The FIR regarding same was lodged on
23.08.2018. Applicant has been avoiding
the process of Court. He did not surrender
before the Court, but was arrested by the
U.P. Police at Chindwara, Madhya Pradesh
on 01.07.2020. The police report dated
30.09.2020 under Section 173(2) Cr.P.C.
(charge-sheet) has been submitted against
applicant on 01.10.2020 As such, on date,
the applicant is a named/charge sheeted
accused.

36. However, as noted above, the applicant
was arrested on 01.07.2020 at Chindwara,
Madhya Pradesh by U.P. Police. No transit
remand was obtained by the U.P. Police
from
the
concerned
Magistrate
at
Chindwara. Applicant was handed in the
Supurdagi of U.P. Police. He was produced
before the remand Magistrate at Kanpur
Nagar on 03.07.2020 i.e. much after the
expiry of 24 hours from the date and time
of his arrest. As such, the detention of
applicant by police after expiry of a period
of 24 hours from the time of his arrest is
manifestly illegal. The order of remand
dated 03.07.2020 passed by the remand
Magistrate will not wipe out the aforesaid
illegality. Therefore, the fact which has
been strenuously urged before this Court on
behalf of first informant that the charge
sheet dated 30.09.2020 has been submitted
against applicant within 90 days from the
date subsequent to the order of remand i.e.
03.07.2020 is wholly misconceived and is
of no help to the state or the opposite party
2. In the aforesaid circumstance, the law
laid down by Supreme Court in Madhu
Limaye and others Vs. State of Bihar
AIR 1969 Supreme Court 1014 and
Manoj Vs. State of Madhya Pradesh
1999 (3) SCC 715. is clearly applicable to
the present case.
4 All. Manoj Gupta @ Manoj Kumar Gupta Vs. State of U.P. & Anr.
335

37. In view of the discussion made
above, the present application succeeds and
is liable to be allowed.

38. It is accordingly allowed.

39. The impugned order dated
01.10.2020 passed by Chief Metropolitan
Magistrate, Kanpur Nagar in Criminal
Case No. 15681 of 2020 (State Vs. Mohd.
Asif @ Pappu Smart and Others) under
Sections 147, 148, 149, 307, 302, 34,
120B IPC and Section 7 Criminal Law
Amendment Act, Police Station-Chakeri,
District-Kanpur Nagar, arising out of
Case Crime No. 425 of 2020 (State Vs.
Mohd. Asim @ Pappu Smart) under
Sections 147, 148, 149, 302, 34, 307,
120-B I.P.C. and Section 7 Criminal Law
(Amendment)
Act,
Police
Station
Chakeri, District-Kanpur Nagar is hereby
quashed.

40. The applicant shall be released
on bail in aforesaid case crime number on
his furnishing a personal bond and two
sureties each in the like amount to the
satisfaction of the court concerned with
the following conditions which are being
imposed in the interest of justice:-

(i) THE APPLICANT SHALL FILE
AN UNDERTAKING TO THE EFFECT
THAT HE/SHE SHALL NOT SEEK
ANY ADJOURNMENT ON THE DATE
FIXED FOR EVIDENCE WHEN THE
WITNESSES
ARE
PRESENT
IN
COURT. IN CASE OF DEFAULT OF
THIS CONDITION, IT SHALL BE
OPEN FOR THE TRIAL COURT TO
TREAT IT AS ABUSE OF LIBERTY OF
BAIL
AND
PASS
ORDERS
IN
ACCORDANCE WITH LAW.

(ii)
THE
APPLICANT
SHALL
REMAIN
PRESENT
BEFORE
THE
TRIAL
COURT
ON
EACH
DATE
FIXED, EITHER PERSONALLY OR
THROUGH HIS/HER COUNSEL. IN
CASE
OF
HIS/HER
ABSENCE,
WITHOUT SUFFICIENT CAUSE, THE
TRIAL
COURT
MAY
PROCEED
AGAINST HIM/HER UNDER SECTION
229-A IPC.

(iii) IN CASE, THE APPLICANT
MISUSES THE LIBERTY OF BAIL
DURING TRIAL AND IN ORDER TO
SECURE
HIS/HER
PRESENCE
PROCLAMATION UNDER SECTION
82 CR.P.C., MAY BE ISSUED AND IF
APPLICANT
FAILS
TO
APPEAR
BEFORE THE COURT ON THE DATE
FIXED IN SUCH PROCLAMATION,
THEN, THE TRIAL COURT SHALL
INITIATE PROCEEDINGS AGAINST
HIM/HER, IN ACCORDANCE WITH
LAW, UNDER SECTION 174-A IPC.

(iv)
THE APPLICANT
SHALL
REMAIN
PRESENT,
IN
PERSON,
BEFORE THE TRIAL COURT ON
DATES FIXED FOR (1) OPENING OF
THE
CASE,
(2)
FRAMING
OF
CHARGE AND (3) RECORDING OF
STATEMENT UNDER SECTION 313
CR.P.C. IF IN THE OPINION OF THE
TRIAL COURT ABSENCE OF THE
APPLICANT
IS
DELIBERATE
OR
WITHOUT
SUFFICIENT
CAUSE,
THEN IT SHALL BE OPEN FOR THE
TRIAL COURT TO TREAT SUCH
DEFAULT AS ABUSE OF LIBERTY OF
BAIL AND PROCEED AGAINST THE
HIM/HER IN ACCORDANCE WITH
LAW.

(v) THE TRIAL COURT MAY
MAKE
ALL
POSSIBLE
EFFORTS/ENDEAVOUR AND TRY TO
CONCLUDE THE TRIAL WITHIN A
PERIOD OF ONE YEAR AFTER THE
RELEASE OF THE APPLICANT.
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