Guwahati: The Gauhati High Court, in a significant order dated June 2, stated the critical duty of magistrates to verify the status of an arrestee within 24 hours of arrest, even in cases of medical urgency preventing their physical production.
The court stipulated that magistrates must pass a formal remand order to judicial or police custody, either through a personal visit or via video conferencing, to legitimize continued detention.
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According to Live Law, Justice Mridul Kumar Kalita, presiding over the bench, held, “Section 187 of BNSS categorically states that subject to the condition of bail, the Magistrate may authorize his detention either in judicial or in police custody. Unless the Magistrate passes such an order, the initial arrest of the petitioner will become illegal beyond the period of 24 hours from the time of his arrest.”
The bench further elaborated, “In the instant case, where the arrestee is injured and requires urgent medical care, authorities might have to rush them to the hospital for urgent medical treatment instead of producing them before the Magistrate. However, in such cases also, the Magistrate may ascertain the arrestee’s condition through video conferencing or by personally visiting the arrestee whose arrest the Police have reported to him.”
The case originated from an FIR Dipti Timung filed, reporting a fraudulent withdrawal of INR 40,000 from her account after someone swapped her ATM card. Upon arrest, the accused attempted to escape, sustained injuries from a fall, and subsequently gained admission to Gauhati Medical College and Hospital (GMCH), Assam. The investigating officer duly reported this to the magistrate and sought permission for video conferencing production.
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However, the magistrate neither approved the video conferencing nor personally visited the hospital. Instead, the magistrate allowed the accused’s production only after his release from the hospital, crucially failing to issue any formal order regarding the status of his remand (police or judicial custody) during the hospitalization period.
Advocate S Mitra, representing the petitioner, argued that the continued custody became illegal because authorities did not produce the accused before the magistrate within 24 hours, violating Article 22(2) of the Constitution and Section 187(2) of the BNSS, 2023.
He contended that the absence of a remand order beyond the prescribed period rendered the continued custody unlawful.
Additional Public Prosecutor RJ Baruah, representing the State, argued that the delay was justified by the accused’s injuries and need for immediate medical attention.
The High Court observed that the accused remained hospitalized for 45 days without any valid remand or bail order, despite the investigation progressing. The court opined that the magistrate erred significantly by not passing any interim order concerning the accused’s production or status. Consequently, the bench declared the magistrate’s order for production after hospital release invalid.
The court remarked, “Such an order, without clarifying the petitioner’s status as either in custody or a free person, violates the provisions contained in Section 57 of the BNSS as well as Article 22(2) of the Constitution of India, especially when police reported the petitioner’s arrest to the Magistrate and stated reasons for not producing him.”
While acknowledging the importance of medical exceptions, the bench underscored that magistrates retain the responsibility to verify the arrestee’s status and pass a formal remand order, even if the arrestee remains in the hospital.
Accordingly, the court granted bail to the accused, noting, “Without any remand order beyond 24 hours from the time of his arrest, his arrest becomes invalid after 24 hours in custody.”
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