[ Court Doc ]   Criminal Appeals & Suspension of Sentence >> Criminal Law  

In a significant ruling, the High Court has declared the arrest of a petitioner on May 18, 2025, illegal and ordered his immediate release. The decision hinged on the investigating agency's failure to comply with the mandatory requirement of producing the arrested person before a magistrate within 24 hours, as stipulated by Section 58 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) and Article 22(2) of the Constitution of India. The Court also found a violation of Section 48 of the BNSS, which mandates informing the grounds of arrest to a nominated person.

The case involved a dispute between the petitioner, his brother (the first informant), and their father, stemming from a Memorandum of Understanding (MOU) dated August 15, 2024, concerning the distribution of money.

Factual Background:

• An FIR (C.R. No. 116/2025) was registered against the petitioner on May 14, 2025, at 02:14 hours by Malabar Hill Police Station, Mumbai, for alleged offenses under Sections 316(5) and 318(4) of the Bharatiya Nyaya Sanhita, 2023 (BNS). The complaint was subsequently transferred to the Economic Offences Wing (EOW).
• A Look Out Circular (LOC) was issued against the petitioner on May 14, 2025.
• On May 17, 2025, at 17:30 hours, the petitioner was apprehended by immigration authorities at IGI Airport, Delhi, pursuant to the LOC, while attempting to travel to Muscat.
• EOW officers reached the airport on May 18, 2025, post-midnight, and took custody of the petitioner at 04:30 hours.
• The petitioner was brought to Mumbai and produced before a magistrate on May 18, 2025, at 22:45 hours, where he was remanded to police custody.
• Subsequent remand extensions were granted on May 21, 2025, and May 26, 2025, eventually leading to judicial custody until June 6, 2025.

Arguments Presented:

Learned senior counsel for the petitioner argued that the arrest was illegal on two primary grounds:

1. Violation of 24-hour production rule: The petitioner was detained by immigration authorities on May 17, 2025, at 17:30 hours, but produced before the magistrate only at 22:45 hours on May 18, 2025, exceeding the 24-hour limit mandated by law.
2. Non-compliance with Section 48 BNSS: While the petitioner was informed of the grounds of arrest, his relatives, friends, or any other nominated person were not, a requirement under Section 48 of the BNSS. The investigating agency's claim of informing the petitioner's father was deemed insufficient, especially given that the father was also a complainant against the petitioner.

The petitioner's counsel further contended that the dispute was civil in nature, with ongoing mediation talks, and the FIR was registered with "unholy haste" to coerce the petitioner into a settlement. They also pointed out that the FIR was not uploaded on the website, unlike other FIRs lodged around the same time.

The learned APP, representing the investigating agency, argued that the 24-hour period should commence from 04:30 hours on May 18, 2025, when EOW officers took custody of the petitioner from immigration. They asserted that, even by this calculation, the petitioner was produced within 24 hours. They also claimed the petitioner's father was informed of the grounds of arrest.

Learned senior counsel for the first informant argued that immigration officers are not police officers, and therefore, their initial detention of the petitioner should not be considered "arrest" under Section 58 of the BNSS. They also highlighted that the petitioner had not challenged the remand orders at the time and that his bail application was pending.

Court's Observations and Ruling:

The Court meticulously examined the evidence, particularly paragraph 12 of the investigating agency's affidavit, which clearly stated that the petitioner was "accosted by the immigration department, Delhi on 17/05/2025 at 1730 hours." The Court emphasized that the LOC request itself stated the action to be taken as "detain and handover to local Police Station," indicating an intention to take the petitioner into custody.

The Court unequivocally held that the act of the Immigration Officers accosting or detaining the petitioner on May 17, 2025, at 17:30 hours, constituted the arrest. Consequently, the 24-hour period for production before a magistrate began at that time. Since the petitioner was produced at 22:45 hours on May 18, 2025, the Court found a clear violation of Section 58 of the BNSS and Article 22(2) of the Constitution of India, infringing the petitioner's fundamental right to liberty under Article 21.

Regarding the second ground, the Court found no material to support the investigating agency's claim that the grounds of arrest were sufficiently conveyed to a nominated person. The Court deemed the argument of informing the petitioner's father "surprising and shocking," given his role as a complainant.

The Court also noted the "unholy haste" in registering the FIR at an odd hour and issuing the LOC on the same day, especially considering the nature of the dispute. While refraining from detailed comments on the officers' conduct, the Court observed that the intention behind the custody seemed to be to recover the amount sought in the mediation.

Conclusion:

Based on the evident non-compliance with statutory provisions, the High Court declared the petitioner's arrest illegal and ordered his immediate release. The Court clarified that its observations were restricted to the illegality of the arrest and would not influence the merits of the ongoing case. The Court also directed the preservation of CCTV footage and entry registers to allow the petitioner to pursue further remedies.

Section 48, BHARATIYA NAGARIK SURAKSHA SANHITA - 2023  

Section 58, BHARATIYA NAGARIK SURAKSHA SANHITA - 2023  

Section 316, BHARATIYA NAGARIK SURAKSHA SANHITA - 2023  

Section 318, BHARATIYA NAGARIK SURAKSHA SANHITA - 2023  

BHARATIYA NAGARIK SURAKSHA SANHITA, 2023