30 May 2025 Criminal Appeals & Suspension of Sentence >> Criminal Law  

In a significant ruling of Hemang Jadavji Shah v/s The State of Maharashtra, Through the Ld. Public Prosecutor & Others, the High Court recently declared the arrest of a petitioner illegal, highlighting crucial violations of constitutional safeguards related to detention and police procedure. The judgment underscores the mandatory requirements for timely production before a magistrate and proper notification of grounds of arrest, reaffirming the fundamental rights of an individual.

The Genesis of the Dispute:

The case stems from a family dispute concerning a Memorandum of Understanding (MOU) signed on August 15, 2024, involving money distribution. On May 14, 2025, at approximately 2:14 AM, an FIR (C.R. No. 116/2025) was registered by the petitioner's elder brother with the Malabar Hill Police Station, Mumbai, alleging offenses under Sections 316(5) and 318(4) of the Bharatiya Nyaya Sanhita, 2023 (BNS). Surprisingly, a Look Out Circular (LOC) was issued on the same day. The case was subsequently transferred to the Economic Offences Wing (EOW), Mumbai.

The petitioner, who was scheduled to travel from Delhi to Muscat on May 17, 2025, was apprehended by immigration authorities at IGI Airport, Delhi, at 5:30 PM, pursuant to the LOC. EOW officers arrived post-midnight on May 18, 2025, and took custody of the petitioner at 4:30 AM. He was then brought to Mumbai, reaching the EOW office around 10:30 AM, and formally arrested at 7:30 PM on May 18, 2025. He was produced before the learned Magistrate at 10:45 PM on May 18, 2025, and subsequently remanded to police and then judicial custody.

Petitioner's Challenge to the Arrest:

The petitioner sought immediate release, contending his arrest was illegal on multiple grounds:

• Violation of 24-Hour Rule: The primary argument was that he was detained by immigration authorities at 5:30 PM on May 17, 2025, but only produced before a Magistrate at 10:45 PM on May 18, 2025. This period, exceeding 24 hours, was alleged to violate Section 58 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS), and Article 22(2) of the Constitution of India.
• Non-Disclosure of Grounds of Arrest: It was argued that while the petitioner was informed of the grounds of arrest, his relatives, friends, or nominated persons were not, in contravention of Section 48 of the BNSS.
• Malicious Intent and Coercion: The petitioner alleged that the dispute was civil in nature and was being used to threaten and pressure him into settling the matter. He highlighted the late-night FIR registration, the immediate LOC, and WhatsApp chats suggesting an attempt to extort money during his police custody.

Arguments from the State and First Informant:

The investigating agency argued that the 24-hour period for production should commence from 4:30 AM on May 18, 2025, when the petitioner was officially handed over to the EOW by immigration. They contended that, even by this calculation, the production at 10:45 PM on May 18, 2025, was within the 24-hour limit. They also claimed the petitioner's father was informed of the grounds of arrest.

The first informant's counsel added that immigration officers are not police officers, and therefore, detention by them should not count towards the 24-hour clock for police custody. They also pointed out that the petitioner had consented to the remand orders and had a bail application pending.

High Court's Decisive Findings:

The High Court meticulously examined the submissions and evidence, reaching the following conclusions:

• Commencement of Detention: The Court held that the detention of the petitioner by immigration officers at 5:30 PM on May 17, 2025, constituted an 'arrest' for the purpose of Section 58 of BNSS and Article 22(2) of the Constitution. The Court noted that the LOC itself directed "detain and handover to local Police Station," indicating an intention to take him into custody. Since he was produced before the Magistrate at 10:45 PM on May 18, 2025, the detention clearly exceeded 24 hours, rendering the arrest illegal and infringing upon the petitioner's fundamental rights under Article 21 and 22(2) of the Constitution.
• Compliance with Section 48 BNSS: The Court found no material on record to suggest that the petitioner's nominated relatives or friends were informed of the grounds of arrest. The investigating agency's claim that the father was informed was deemed insufficient, especially given that the father himself was the complainant against the petitioner.
• Unusual Haste: The Court observed the "unholy haste" shown by the police in registering the FIR at 2:14 AM and immediately issuing the LOC, considering the nature of the dispute. It also noted the WhatsApp chat evidence which lent credence to the petitioner's claim that the intention behind the custody was to recover the amount sought in the mediation.

The Court's Order:

Based on its findings, the High Court unequivocally declared the petitioner's arrest illegal and unnecessary. It ordered his immediate release in connection with the FIR. The Court refrained from commenting on the quashing of remand orders and the request for an independent investigation into alleged collusion, while clarifying that the petitioner is at liberty to pursue appropriate legal remedies for the latter. The Court also directed the preservation of CCTV footage and entry registers of the EOW office for a period of two weeks.

This judgment serves as a vital reminder to law enforcement agencies about the strict adherence to legal procedures in arrests and detentions, reinforcing the judiciary's role in safeguarding individual liberty and ensuring due process under the law.

  Section 316, BHARATIYA NYAYA SANHITA - 2023  

  Section 318, BHARATIYA NYAYA SANHITA - 2023  

  BHARATIYA NYAYA SANHITA, 2023