Failure of an arresting officer to inform an accused of their right to bail in a bailable offence, as mandated by Section 47(2) of the BNSS, constitutes illegal detention and a violation of Article 21, entitling the victim to public law compensation.

ORDER

1. The present petition under Article 226 of the Constitution of India has been filed by the petitioner seeking issuance of an appropriate writ declaring the action of respondent No.4 in illegally arresting and detaining the petitioner in connection with Crime No.52/2025 registered at Police Station Kailaras, District Morena, for offences punishable under Sections 308(7) and 3(5) of the Bharatiya Nyaya Sanhita. The petitioner has further prayed for grant of compensation of Rs.5,00,000/- on account of illegal detention besides initiation of departmental proceedings against the erring police officer.

2. Learned counsel appearing for the petitioner submitted that the entire action of respondent No.4 is wholly arbitrary, illegal and contrary to the mandate of the Bharatiya Nagarik Suraksha Sanhita, 2023 as well as the constitutional guarantee of personal liberty under Article 21 of the Constitution of India. It is submitted that the petitioner is serving as a Police Constable and came to be implicated during investigation merely on the basis of the disclosure statement of a co-accused. Thereafter, respondent No.4 arrested the petitioner on 12.02.2025 in connection with Crime No.52/2025 for offences punishable under Sections 308(7) and 3(5) of the Bharatiya Nyaya Sanhita. Learned counsel submits that even assuming the allegations contained in the FIR to be correct, the offence under Section 308(7) BNS is specifically shown as a bailable offence under the First Schedule of the Bharatiya Nagarik Suraksha Sanhita. Therefore, the police officer had no authority to keep the petitioner behind bars after his arrest. It is argued that Section 47(2) of the Bharatiya Nagarik Suraksha Sanhita casts a mandatory obligation upon the arresting officer to inform an accused arrested in a bailable offence that he is entitled to be released on bail and that he may arrange for bail. The statutory provision nowhere contemplates that the accused must first be remanded to judicial custody or kept in police lock- up until being produced before the Magistrate. Rather, the legislative intent is to secure immediate restoration of liberty subject only to execution of the requisite bond. Learned counsel further submits that in the facts of the present case, the petitioner was repeatedly requesting the respondent No.4 that the alleged offence was bailable and that he was prepared to furnish the necessary bail bond. Despite such request, respondent No.4 neither released the petitioner nor informed him about his statutory right. Instead, the petitioner was illegally detained inside the police station for more than twenty-four hours and was produced before the learned Magistrate only on the following day. It is further submitted that the learned Magistrate, while enlarging the petitioner on bail on 13.02.2025, also sought an explanation from the SHO as to under what authority the petitioner had been arrested and detained in a bailable offence. Despite such judicial direction, no satisfactory explanation was furnished by the concerned police officer. Learned counsel submits that once the illegal detention is established, violation of Article 21 automatically follows. The right to personal liberty is one of the most cherished fundamental rights and any deprivation thereof except in accordance with procedure established by law gives rise to a constitutional remedy of public law compensation. Learned counsel further placing reliance upon the judgments of the Hon'ble Supreme Cou