Even conceding that the applicant was not told the reason s of the arrest as
required u/s 50(1) of the Crpc, his prosecution before the Magistrate was made
with an allegation of his involvement in a substantive case. Once the applicant
was produced in court,the provision s of section 167 Crpc would apply.
The section states that whenever any person is arrested and detained in Custody
and the investigation can not be completed within a period of 24 hrs ,he is to
be produced before the nearest judicial Magistrate with the relavent entries in
the Diary. After his arrest the applicant was produced before a Magistrate.
Section 167(2) Crpc requires when such a person has been produced before a
Magistrate,he may authorise the detection of the Accused in such custody as such
Magistrate may think fit.
U/s 437 Crpc , the Magistrate was also empowered to grant him bail instead of
sending him to custody. An order of Magistrate either directing remand of the
Accused in Custody or directing his release on bail may not be affected by any
initial defect in the making of arrest. Thus the present custody of the
petitioner, as being on bail under order of the Court may not be treated to be a
wrongful detention and although a suitable action may lie against the concerned
police officer for non compliance of Section 50(1) Crpc ,there may not be an
Order directing the petitioner to be set at liberty.
The effect of which would be to discharge him from his bail bonds. In this
connection a Full Bench of High Court in the case of Bal Mukund jais wal vs
Superintendent, District Jail, Varanasi as per Habeas Corpus Writ Pet No 9061 of
1994 ( reported in 1998 ALL LJ 1428 is relavent.
Thus order was passed by the Full Bench when matter was referred to it for
answering a particular question as follows:
Where an Accused person is in Custody on the basis of a valid remand order
passed u/s 209 Crpc or 309 Crpc by the Magistrate or by any other Competent
court then such person can not be set at liberty by issuing a writ of Habeas
Corpus solely on the ground that his initial detention was volatile of a
constitutional guarantee enshrined in Article 21 and 22 of the Constitution of