A conviction for contempt under Section 385 of BNSS must adhere to procedural requirements outlined in Section 391, and failure to do so invalidates the conviction.

JUDGMENT :

S.M. MODAK, J.

Heard learned Advocate for the Petitioner and learned APP.

2. Initially there was a prayer for declaring the arrest as illegal. Office was asked to verify the assignment. The Petitioner has deleted that prayer. So prayer which remains is to set aside the judgment dated 7^th July 2025. Hence, I entertain the petition.

3. There is one more reason for entertaining the petition as grievance is made about the power usurped by the learned Magistrate by imposing conviction under Section 385 of Bhartiya Nagarik Suraksha Sanhita, 2023 (for short ‘ BNSS ’). Generally, against the conviction the Appeal under Section 415 of BNSS is maintainable. On the basis of observations in case of Harish Arora and ors. v/s.Dy. Registrar of Co-operative Societies in Writ Petition No.3433/2025, I have entertained the petition by way of an exceptional circumstance. When there is violation of fundamental right, the writ petition can be entertained without relegating the party to avail of statutory remedies.

4. On hearing learned Advocate for the Petitioner, I am impressed by only one ground. For convicting the Contemnor for an offence committed during proceeding under Section 385 of BNSS , the procedure laid down under Section 391 of BNSS needs to be followed. The learned Judge instead of referring the case to the jurisdictional Magistrate, himself convicted the Petitioner.

5. The act of contempt was committed by the Petitioner when he was produced before Court of 6^th Joint CJJD and JMFC, Court No.1 on 7^th July 2025. He was arrested in C.R. No.210/2025 registered at Bundgarden Police Station for an offence under Section 324 (3) of BNS and under Section 4(25) of the ARMS ACT and under Section 37(3) r/w 135 of the MAHARASHTRA POLICE ACT . When the learned Judge has enquired about the ill treatment, instead of answering about the same, the Petitioner had uttered certain words thereby derogating the authority of the Judge. Learned judge took the cognizance of contempt. The words are:-

6. For this act he was convicted under Section 384 and 385 of BNSS . Sentence imposed is Rs.1000/- fine and S.I. for 7 days. The learned Advocate for the Petitioner is having a grievance about this sentence. According to him when Petitioner has accepted his guilt and prayed for pardon, the learned Judge ought not to have convicted him. This argument is not acceptable for the reason the learned Judge has explained the manner in which the authority of the Court is derogated.

7. The punishment under Section 385 of the BNSS can be imposed when the Court feels the Contemnor cannot be sufficiently dealt with under Section 384 of BNSS . However, in such an eventuality there is a restraint on exercise of power. Instead of he convicting the contemnor, he has to send him to jurisdictional Magistrate as per Section 391 of BNSS . This is not done. For Section 385 of BNSS there is a separate punishment for 7 days simple imprisonment. This cannot be sustained in the eyes of law. It needs to be set aside. For this purpose only I have entertained this petition.

8. The third ground which is raised is the learned Judge has committed illegality in postponing prayer for grant of police custody. According to learned APP it was justified. Mr. Dedhia relied upon the observations in the case of S Rajanikanth v/s. C. Thirumagal , 2012 2 RCR (Cri) 241 According to him, the cognizance has to be taken on the same day. Even Section 384 also mandates the Court to take cognizance of the offence before rising of the Court. That procedure is properly followed and even opportunity of hearing was given.

9. If the Petitioner is convicted it was not proper for the learned Magistr