Bombay HC Rules Custody Illegal for Late Production Before Magistrate, Orders Release

The Bombay High Court has declared an arrest illegal after finding that the detention of the accused breached the 24 hour constitutional limit for producing an arrested person before a magistrate. 

Holding the custody to be in violation of Article 22(2) of the Constitution of India and Section 58 of the Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023, the Court directed the immediate release of the accused on a personal bond of Rs. 50,000 with sureties and affirmed that the investigating agency may re-arrest him if warranted in law.

The Division Bench of Justice Sarang V. Kotwal and Justice Shyam C. Chandak delivered the order while hearing a criminal writ petition challenging the legality of the detention. The Bench allowed the plea, holding that the individual had been kept in custody beyond the permissible limit without being presented before a magistrate. The Court observed that such detention violated the express constitutional and statutory protections designed to safeguard personal liberty. While ordering release, it clarified that this direction was not in the nature of a bail order under Section 483 of the BNSS and that the investigating agency need not seek cancellation of bail if it decided to re-arrest the accused after following due procedure of law.

The case arose from an incident that led to the registration of a first information report at Sakinaka Police Station under Sections 64(2)(k) and 351(2) of the BNSS on April 20, 2025.

The complaint was lodged by a woman with speech and hearing impairment, alleging that she had been sexually assaulted by her supervisor at a housing society where she worked in housekeeping. The investigation concluded with the filing of a charge sheet before the Additional Sessions Judge, Dindoshi, Mumbai.

According to the pleadings and affidavits placed before the Court, the victim had reached the police station late at night on April 19, 2025, accompanied by her husband, to lodge the complaint. The accused was summoned by the police and brought to the station at 12:38 a.m. on April 20, 2025. The first information report was officially registered at 7:13 a.m. the same day, and the accused was shown as arrested at 11:20 p.m. on April 20, 2025. He was eventually produced before the Judicial Magistrate First Class, 66th Court, Andheri, at 12:45 p.m. on April 21, 2025.

The Court noted that from the time the accused was brought to the police station in the early hours of April 20, he was not a free man and remained under police custody. It held that he ought to have been produced before the nearest magistrate within twenty-four hours of that time.

Even if the timeline were to be calculated from the moment the FIR was registered at 7:13 a.m., the production before the magistrate at 12:45 p.m. on April 21 still exceeded the limit prescribed by law. The Bench observed that the violation was evident on the record and could not be justified by the explanation offered by the police.

Referring to Article 22(2) of the Constitution and Section 58 of the BNSS, the Court reiterated that no person arrested without a warrant may be detained in custody for more than twenty-four hours, excluding travel time, unless authorised by a magistrate. It held that any breach of this rule renders the detention unlawful, irrespective of the nature of the alleged offence.

While granting relief, the Bench took note of the seriousness of the charges, which involved sexual assault, and clarified that the rights of the victim must not be undermined because of procedural lapses committed by the investigating agency.

The Court placed reliance on Kavita Manikikar v. Central Bureau of Investigation (2018), where a similar principle was applied; the arrest was held illegal, but the investigating authority was allowed to re-arrest the accused after complying with the legal procedure.

In this context, the High Court directed that the accused be released on a personal bond of Rs. 50,000 with one or two sureties in the like amount. The investigating agency, it said, would be free to take him into custody again if the circumstances warranted, without having to obtain an order for cancellation of bail.

The Court thus balanced the protection of personal liberty with the State's duty to ensure justice in serious criminal cases.

The petition was disposed of with these directions, reaffirming the constitutional protection against unlawful detention and emphasizing the judiciary’s continuing vigilance in enforcing procedural safeguards that protect citizens from arbitrary custody.

Appearances: Mr. Shirish Desai, Mr. Harsh Agarwal, Advs. for the Petitioner, Ms. Dhanalaxmi Krishnaiyar, APP for the Respondent/State, Mr. Vijaykumar Wagh, API, Sakinaka Police Station, Mumbai

Case title: Dhanshala Prakash Vishwakarma v. State of Maharashtra

Bench: Justice Sarang V. Kotwal and Justice Shyam C. Chandak

Date: October 7, 2025