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: Producing Arrested Person Within 24 Hours Not Enough; Must Be Before
Mumbai: The has delivered a significant ruling on the constitutional right of an arrested person, holding that merely producing an accused before a court within 24 hours of arrest is not sufficient—the person must be produced before the from the place of arrest. The Division Bench of Justice Sarang V. Kotwal and Justice Ranjitsinha Raja Bhonsale allowed a petition and ordered the release of Kalim Shaikh, a driver arrested in Barshi, Solapur, and taken nearly 400 kilometers to Mira-Bhayander without first being presented to a local magistrate.
Arrest Without : A 400-Kilometer Journey
The case arose from an FIR registered on , at in Mira-Bhayander under several provisions of the , including Sections 69, 89, 75, and 115(2). The informant alleged that Shaikh established physical relations with her, sometimes by force, on a false promise of marriage, along with theft of ornaments and threats.
On , a police team from Kashigaon apprehended Shaikh at Barshi with the help of local police. A station diary entry at Barshi recorded his departure at 6:14 p.m. Instead of taking him before a magistrate in Barshi, the team drove him to Kashigaon, arriving at 4:50 a.m. on August 22. The arrest form was prepared there. Because the magistrate at Mira Road was attending a judicial workshop, Shaikh was not produced until 7:40 p.m. that evening. The magistrate, finding production within 24 hours, remanded him to police custody.
Arguments: Violation of Article 22(2) vs. Timely Production
Shaikh's counsel, led by , argued that no was obtained at Barshi and that the petitioner was not produced before any magistrate near Barshi before being taken to Kashigaon, which was about 380–400 km away. This, they contended, breached and Sections 58 and 187 of the (BNSS). They relied on the Division Bench ruling in Vachhalabai v. State of Maharashtra (2019 SCC OnLine Bom 2937).
The State, represented by APP , argued that Shaikh was produced within 24 hours from arrest and therefore no violation occurred. The investigating officer's affidavit confirmed the timeline but maintained compliance.
Court's Analysis: "" Not a Mere Formality
The High Court rejected the State's argument, emphasizing that the constitutional mandate under Article 22(2) is not simply about the 24-hour window but about the location of the magistrate before whom the arrested person must be produced. Relying on Vachhalabai , the court noted that the 24-hour period is tied to the term "," which cannot be interpreted as the magistrate having jurisdiction over the offence.
The Division Bench in Vachhalabai had held that once an accused is taken out of the jurisdiction of the , the detention becomes unauthorized and is not regularized by later production before the jurisdictional court within 24 hours. The same principle was followed by another division bench in in .
Applying this to the present case, the court stated:
"Thus, it is clear that the Investigating Agency was duty bound to produce the Petitioner before the ' ' at Barshi, from where he was arrested. The contention that he was produced within 24 hours by itself is not sufficient. The arrested person has to be produced before the as per the requirement of the above provisions."
Key Observations
The court underscored the fundamental nature of the safeguard:
"If there is a material to infer that there was actual arrest, but after the arrest the accused was not taken before the and he was taken far away from that place for production before the concerned Magistrate, the moment the accused is taken out of the jurisdiction of , his detention becomes unauthorized and illegal."
Court's Decision: Release on Bail with Conditions
Finding a clear violation of Article 22(2) and the BNSS, the court ordered Shaikh's release on bail. He was directed to execute a of ₹50,000 with one or two . Conditions include cooperation with the investigation, no tampering with evidence, reporting to once a fortnight until chargesheet filing and on the first Sunday of every month thereafter, and depositing any passport.
On the State's request to permit re-arrest given the seriousness of allegations, the court referred to the 's recent ruling in (). The court clarified that re-arrest, if absolutely necessary, must follow legal procedures and the guidelines set out in that case.
The petition was disposed of, reinforcing the strict obligation on police to comply with constitutional and statutory safeguards at the time of arrest.
