Police Cannot Detain Accused In Bailable Offence Without Informing Him Of Bail Right: MP High Court

The Gwalior Bench of the Madhya Pradesh High Court has held that arresting and detaining a person for a bailable offence, without informing him of his right to seek bail, is illegal and a violation of his fundamental right to personal liberty.

Justice Milind Ramesh Phadke directed the state to pay Rs 5 lakh in compensation to a police constable who was kept in custody for over 24 hours despite the offence against him being bailable in law.

The petitioner, Rahul Ataria, a police constable, had approached the High Court under Article 226 of the Constitution after he was arrested on February 12, 2025 in connection with a case registered at Kailaras police station in Morena district. He was booked under Sections 308(7) and 3(5) of the Bharatiya Nyaya Sanhita (corresponding to Sections 388 and 34 of IPC) on the basis of a disclosure made by a co-accused during investigation. The petitioner had also sought departmental action against the officer responsible for his detention.

His counsel, Advocate Ankur Maheshwari, argued that Section 308(7) BNS (corresponding to Section 388 IPC) is listed as a bailable offence under the First Schedule of the Bharatiya Nagarik Suraksha Sanhita, and that the arresting officer was therefore bound to inform the petitioner of his right to be released on bail, as mandated by Section 47(2) BNSS (Section 50 CrPC). It was submitted that despite the petitioner repeatedly offering to furnish a bail bond, the police neither released him nor informed him of this right, and instead kept him in custody for more than a day before producing him before a magistrate.

The plea also pointed out that the magistrate, while granting bail on February 13, 2025, had itself sought an explanation from the Station House Officer as to why the petitioner was arrested and detained despite the offence being bailable. No satisfactory response was placed on record by the police even at that stage.

Appearing for the state, Advocate Sohit Mishra, for the Advocate General, opposed the petition, arguing that the arrest was made in the course of a genuine investigation and that the officer concerned had believed custodial questioning was necessary. It was contended that any lapse in procedure was, at best, an administrative matter that could be examined internally through a departmental inquiry rather than by way of a writ petition.

The Court disagreed with this submission. It observed that producing an accused before a magistrate within 24 hours satisfies only the outer constitutional safeguard under Article 22, and cannot by itself cure a separate statutory violation where the offence is bailable. "Where the offence itself is bailable, the investigating officer cannot ignore the legislative command requiring release of the accused on furnishing the requisite bail bond," the Court said.

Justice Phadke noted that the magistrate's own query to the police about the legality of the arrest supported the petitioner's case that statutory safeguards had been ignored. The Court held that the police had failed to follow the mandatory procedure for arrests in bailable offences, and that this amounted to a "clear infringement of Article 21" of the Constitution.

Taking into account the nature of the violation and the period of unlawful detention, the Court ruled that the ends of justice would be served by awarding compensation under the constitutional remedy of public law damages. It declared the arrest and continued detention illegal, and directed the state to pay Rs 5 lakh to the petitioner within eight weeks.

The Court, however, left it open for the state government to recover this amount from the officer found responsible, provided a proper departmental inquiry is conducted and the officer is given a fair hearing before any such recovery is ordered. No order as to costs.

The ruling is a reminder that the tag "bailable offence" is not a mere formality on paper, and that police officers are legally bound to inform arrested persons of their right to bail rather than leaving them to languish in custody until produced before a court.

Case Title: Rahul Ataria vs. The State of Madhya Pradesh and Others

Date of Order: July 28, 2026

Bench: Justice Milind Ramesh Phadke