Bombay High Court Declares Arrest Illegal, Orders Immediate Release of Petitioner.


30 May 2025 Civil Appeals >> Civil & Consumer Law  

The Bombay High Court on May 30, 2025, in Hemang Jadavji Shah v/s The State of Maharashtra, Through the Ld. Public Prosecutor & Others., declared the arrest of a petitioner in an economic offense case as illegal and unnecessary, ordering his immediate release. The court found significant violations of legal procedures, including the mandatory requirement to produce an arrested person before a magistrate within 24 hours and the proper intimation of arrest grounds.

The case involves a dispute between the petitioner, his elder brother (the first informant), and their father, stemming from a Memorandum of Understanding (MOU) dated August 15, 2024, concerning money distribution. An FIR (CR No. 116 of 2025) was registered with Malabar Hill Police Station at 2:14 AM on May 14, 2025, and subsequently transferred to the Economic Offences Wing (EOW), Mumbai. The FIR alleged offenses under Sections 316(5) and 318(4) of the Bharatiya Nyaya Sanhita, 2023 (BNS).

 

 

A Look Out Circular (LOC) was issued against the petitioner on May 14, 2025, leading to his apprehension by immigration authorities at IGI airport in Delhi at 5:30 PM on May 17, 2025, as he was scheduled to travel to Muscat. EOW officers took custody of the petitioner at 4:30 AM on May 18, 2025, at Delhi airport, and he was brought to Mumbai, reaching the EOW office around 10:30 AM. Despite this, the arrest memo recorded the arrest time as 7:30 PM on May 18, 2025, and he was produced before the learned Magistrate at 10:45 PM on May 18, 2025.

The petitioner challenged his arrest on two primary grounds:

  1. Violation of the 24-hour production rule: The petitioner argued he was detained by immigration authorities at 5:30 PM on May 17, 2025, and produced before the Magistrate at 10:45 PM on May 18, 2025, exceeding the 24-hour limit mandated by Section 58 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) and Article 22(2) of the Constitution of India. The court agreed, stating that the detention by immigration officers, as requested by the investigating agency, constituted the act of arrest, making the subsequent production beyond 24 hours illegal.
  2. Non-compliance with informing grounds of arrest: The petitioner contended that while he was informed of the grounds of arrest, his relatives, friends, or nominated persons were not, as required by Section 48 of the BNSS. The investigating agency's claim that the grounds were intimated to the petitioner's father and lawyer was found "surprising and shocking" by the court, especially given that the father was the complainant against the petitioner. No material was produced to show the petitioner had nominated them for this purpose.

The High Court also expressed concern over the "unholy haste" shown by the police and EOW officers in registering the FIR post-midnight and immediately issuing the LOC, considering the nature of the dispute. It noted that the dispute appeared to be a civil matter that was being settled through mediation, and WhatsApp chats indicated an intention to keep the petitioner in custody to recover money.

In its order, the High Court granted the petitioner's prayer for declaring the arrest illegal and unnecessary, ordering his immediate release. The court clarified that its observations and conclusions were strictly limited to the illegality of the arrest and would not influence the trial or affect the merits of the case. The court also directed the preservation of CCTV footage and entry registers of the EOW office for two weeks to allow the petitioner to pursue further remedies regarding allegations of extortion during his custody.


BHARATIYA NYAYA SANHITA, 2023