Police can't simply re-arrest accused released from illegal detention: Delhi HC

New Delhi, The Delhi High Court has held that an accused, once released on grounds of illegal detention, cannot be simply re-arrested and the investigating agency must seek approval from the court concerned as well as his superior authority before the second arrest.

A bench of Justices Navin Chawla and Arun Bhardwaj passed the ruling while directing the forthwith release of a POCSO accused after finding his re-arrest in the case illegal for allegedly failing to comply with the prescribed procedure.

The petitioner-accused was first taken into custody by the police on July 20.

Upon his production before the magisterial court, he was, however, directed to be released as the grounds of arrest supplied to him neither had the date or time when they were handed over to him nor did they contain any details of the alleged incident.

The petitioner was then re-arrested on August 21, and the sessions court remanded him to two days' police custody after rejecting his plea challenging the arrest.

The petitioner's counsel challenged his re-arrest before the high court, contending that it was illegal, in violation of the prescribed procedure and his fundamental rights under Article 22 of the Constitution of India.

Granting relief to the petitioner, the court noted that before making a re-arrest, the investigating officer has to forward a report and seek permission of his superior authority and also file an application seeking permission of the court concerned while stating the necessity for custodial interrogation.

"In view of the fact that the above procedure was not followed by the respondent before re-arresting the petitioner and he was re-arrested only on the fact that offences under the Protection of Children from Sexual Offences Act, 2012 had been further added in the FIR against him, the re-arrest of the petitioner cannot be justified and is found to be illegal and in violation of his fundamental rights," the court concluded in the order passed on September 25.

"The petitioner is, therefore, directed to be forthwith released from the custody," it ordered.

The court said that the Supreme Court has prescribed the procedure to be followed by an investigating officer in cases of re-arrest of an accused who is earlier released from the custody for breach of Article 22 of the Constitution.

Quoting the top court's decision, the bench noted that in cases of violation of his fundamental rights under Article 22, an accused is not enlarged on bail but released from illegal and unconstitutional detention, and the prescribed procedure has to be followed before making a second arrest.

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