Detention Of Accused In Custody Without Producing Him Before Nearest Magistrate Within 24 Hours As Required U/S.58 Of BNSS Is Completely Illegal: Bombay High Court
|The Petition before the Bombay High Court was filed for the issuance of a direction to declare the arrest of the Petitioner as illegal and order his release in connection with a case registered with the Economic Offences Wing.
While terming the arrest of an accused person as illegal in a case registered with the Economic Offences Wing, the Bombay High Court has held that the act of the Immigration Officers to accost the accused or detain him was an act of arrest and the same infringed the fundamental right under Article 22(2) of the Constitution as the accused was not produced before the nearest Magistrate within stipulated time of 24 hours as required under section 58 of the BNSS.
The Petition before the High Court was filed for the issuance of a direction to declare the arrest of the Petitioner illegal and order the immediate release of the Petitioner in connection with a case registered with the Economic Offences Wing.
The Division Bench of Justice Gauri Godse & Justice Somasekhar Sundaresan said, “...we are of the view that there is breach of requirements under section 48 of the BNSS and the detention of the petitioner in custody without producing him before the nearest Magistrate within stipulated time of 24 hours is completely illegal and it infringes the fundamental rights under Article 22(2) of the Constitution of India. Therefore, the petitioner’s arrest gets vitiated on completing 24 hours in custody from 1730 hours on 17th May 2025. Since there is a violation of Article 22 (2) of the Constitution of India, the petitioner’s fundamental right to liberty guaranteed under Article 21 has also been violated.”
Senior Advocate Ravi Prakash represented the Petitioner while APP S. V. Gavand represented the Respondents.
Factual Background
The dispute in this case was between the petitioner and his brother, as well as his father. The first informant is the petitioner’s elder brother. An FIR was registered on the oral complaint of the petitioner’s brother. The allegation in the FIR was regarding a memorandum of understanding (MOU) and the money that was to be distributed pursuant to the terms and conditions agreed between the parties to the MOU. A Look Out Circular (LOC) was issued at the instance of the Deputy Commissioner of Police, and the complaint was transferred to the Economic Offences Wing (EOW).
The FIR was registered for the alleged offences punishable under Sections 316 (5), 318 (4) of Bharatiya Nyaya Sanhita, 2023 (BNS). When the petitioner was scheduled to travel from Delhi to Muscat, the immigration authorities apprehended him, and he was detained in the office of the immigration authorities. The petitioner's custody was handed over to the EOW officers, and he was remanded to police custody.
Reasoning
The Bench noted that the act of the Immigration Officers to accost the petitioner or detain him on May 17, 2025 at 1730 hours was the act of arrest and therefore period of 24 hours as contemplated under Section 58 of BNSS and Article 22(2) of the Constitution of India begun on May 17, 2025 at 1730 hours. The petitioner was produced before the Magistrate on May 18, 2025, at 2245 hours, which exceeded 24 hours from the arrest. “Hence, there is a violation of the petitioner’s right guaranteed under Article 21 of the Constitution of India for noncompliance with Section 58 of the BNSS and Article 22(2) of the Constitution of India”, it said.
Making a reference to the WhatsApp chats between the family members, the Bench noted that the same supported the contentions raised on behalf of the petitioner that the intention to keep the petitioner in custody was to recover the amount that was sought to be settled in the mediation between the family members. The Bench also found substance in the second ground raised on behalf of the petitioner that the grounds of arrest were not supplied as contemplated under Section 48 of the BNSS.
Thus, holding the arrest as illegal for non-compliance with the provisions of law, the Bench ordered the release of the petitioner.
Cause Title: Hemang Jadavji Shah v. State of Maharashtra & Ors. (Neutral Citation: 2025:BHC-AS:22305-DB)
Appearance:
Petitioner: Senior Advocate Ravi Prakash, Advocates Munaf Virjee, Aditya Dewan, Vikram Sutaria, Debopriyo Moulik, Zain Shroff, Sagar Shetty, Hrituraj Singh Rajput, AMK Law
Respondent: APP S. V. Gavand, Advocate Anand Bagade
Intervener: Senior Advocate Amit Desai, Nikhil S. Kamble, Archishmati Chandramore