Therefore, even by giving concession to the police as per their averment in paragraph-9 they left Akola at 10:00a.m. on 27.05.2025, from that point onwards, definitely, the Petitioner was in their custody. Therefore, it can be said that he was arrested from that point onwards. In that view of the matter, it was necessary for the police officers to have produced the Petitioner before 10:00a.m. on 28.05.2025 before the nearest Magistrate. That was not done. He was brought to Yerwada police station and was produced before the learned Magistrate, Pune on 28.05.2025 at 4:20p.m.; which was clearly beyond 24 hours. Thus, the period of 24 hours is exceeded. The Petitioner was not even produced before the nearest Magistrate as is mandated under the Article 22(2) of the Constitution of India. This is the first gross violation committed by the investigating agency.
In this case, no such written reasons are brought to our notice. Therefore, the Police officer has not recorded any reasons for the Petitioner’s arrest, though, he had appeared before the police station and had given his statement. Thus, we find there is violation of mandate U/s.35(5) of BNSS, as well.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL WRIT PETITION NO. 4283 OF 2025
Vicky @ Vikky Vilas Kamble Vs The State of Maharashtra
CORAM : SARANG V. KOTWAL &
SHYAM C. CHANDAK, JJ.
DATE : 25 SEPTEMBER 2025
JUDGMENT : (PER SARANG V. KOTWAL, J.)
1. Rule. Rule is made returnable forthwith with consent of
the parties.
2. This petition is filed for release of the Petitioner in
connection with C.R.No.92 of 2025 registered at Yerwada police
station, Pune, because, according to the Petitioner, there was
violation of Article 22(2) of the Constitution of India. According to
the Petitioner, he was not produced before the nearest Magistrate
within a period of 24 hours as was required under the said Article.
Consequently, there was violation of Section 58 of the Bharatiya
Nagarik Suraksha Sanhita, 2023 (for short ‘BNSS’), as he was not
produced before the nearest Magistrate within 24 hours of his
arrest. The second ground for filing this petition was that, there
was violation of Section 35(3) and Section 35(5) of the BNSS.
3. Heard Mr. Mayuresh Ingale, learned counsel for the
Petitioner and Ms. Supriya Kak, learned APP for the State.
4. Before referring to the legal issues raised by the learned
counsel for the Petitioner, it is necessary to mention the allegations
in the F.I.R. The Affidavit in reply filed by the Police Inspector
(Crimes), Yerwada police station, Pune, mentions those facts in
paragraph-5. The F.I.R. was registered at Yerwada police station
based on the detailed complaint of one Rajeev Agrawal. On
26.11.2024, he had received a WhatsApp message and he was
encouraged to invest various amounts in a number of schemes for
profit. One application INDKKR was used for investment and for
withdrawal of the money. Initially, the informant received some
money, but subsequently, he could not withdraw any amount. He
contacted the Administrator of the WhatsApp group. He was asked
to deposit additional 20% amount to enable him to withdraw the
amount which he had earned. Subsequently, his access to the
account was blocked and he realised that he was defrauded for the
amount of Rs.47,43,000/-. On these allegations, he lodged the
F.I.R. During the course of the investigation, it was revealed that,
in this connection, the amount of Rs.3,80,000/- was transferred to
the account of the present Petitioner by way of RTGS. Therefore,
according to the investigating agency, the Petitioner was involved
in commission of the offence. He was given a Notice U/s.35 of the
BNSS. From this point onwards, there is a dispute in the
submissions made by the learned counsel for the Petitioner and the
learned APP.
5. According to the Petitioner, he appeared before the
investigating officer in Yerwada police station on 25.04.2025 and
co-operated with the investigation. The I.O. recorded the
Petitioner’s statement and then he was allowed to go. He went
back to Akola. On 27.05.2025, the police team of Yerwada police
station went to Akola and took the Petitioner in custody at
8:45a.m. According to the Petitioner, this amounted to his arrest at
8:45a.m. on 27.05.2025. The petition mentions that, there is a
CCTV footage of his residence showing his arrest. After his arrest,
he was produced before the J.M.F.C., Court No.5, Pune, on
29.05.2025 at 4:20p.m.; that would be after 56 hours from his
arrest. Therefore, according to the Petitioner, there was clear
violation of Article 22 of the Constitution of India and Section 58
of the BNSS. According to him, this was the first violation.
6. According to the learned counsel for the Petitioner, the
second violation was that, since he had answered the Notice
U/s.35 of the BNSS and had appeared before the police and had
co-operated with the investigation, the police officer could not
have arrested him in this connection.
7. Learned APP relied on the averments made in the
Affidavit-in-reply explaining the stand of the investigating agency.
Paragraph Nos.7 to 10 are important in this respect. According to
the investigating agency, in spite of service of notice U/s.35 of the
BNSS, the Petitioner did not respond in any manner. However,
after persuading the Petitioner telephonically on several occasions,
he remained present in Yerwada police station on 25.04.2025 and
pleaded ignorance about the transaction. He informed that, he had
permitted opening of his account for online gaming as he was
informed that, he would get Rs.30000/- by way of commission. He
had assured to co-operate with the investigation and to deposit the
amount of Rs.3,80,000/- before 29.04.2025. According to the
police, after that the Petitioner did not co-operate. The
investigation was getting affected and, therefore, it was necessary
to make detailed inquiry with the Petitioner. Therefore, a team of
the police officers went to Akola. It is mentioned in the Affidavit
that, the team went to Akola so that the Petitioner could be
brought to Yerwada police station for the purpose of inquiry. The
Petitioner allegedly disclosed the names of two more accused
namely Yuvraj and Mohd. Shahin. They were traced. The
averments made further are important. It is stated that, with
intimation to the local police station i.e. Civil Line police station,
Akola, as well as, to the relatives of all the three persons including
the Petitioner, all of them were taken to Yerwada police station,
Pune for the purpose of inquiry. A necessary station diary entry
was taken in the register of Civil Line police station, Akola. The
team left Akola around 10:00a.m. and reached Yerwada police
station at about 10:25p.m. on 27.05.2025. The inquiry was made
with all of them and at 1:00a.m. on 28.05.2025 all three of them
were allowed to go; but they were given notice to attend the police
station in the morning. According to the I.O., the Petitioner was
not arrested till then. But the inquiry conducted on the next day
showed that the Petitioner was not giving any truthful information.
He could not explain credit of Rs.3,80,000/- in his account.
Therefore, the Petitioner was arrested in that offence at 6:00p.m.
on 28.05.2025. The other requirements for the arrest as per the
procedure were followed. He was produced before the learned
J.M.F.C., Pune on 29.05.2025 at 4:20p.m. and then he was
remanded to police custody by the learned Magistrate on the first
occasion till 31.05.2025.
8. The Petitioner had made an application before the
learned Magistrate, Pune specifically on the ground that his arrest
was illegal and he was produced before the learned Magistrate
beyond 24 hours. That application was rejected by the learned
Magistrate on 31.05.2025. It was observed that, perusal of the
record, the remand papers, the F.I.R., the case diary and the arrest
panchanama, it appeared that the Petitioner was produced within
24 hours before the Court and, therefore, contention of the
Petitioner was rejected.
The learned Magistrate had not taken into account the
fact that the Petitioner was brought from Akola to Yerwada police
station. He mechanically referred to the arrest memo and other
documents to record the finding that the Petitioner was produced
within 24 hours of his arrest.
9. In this background, the Petitioner has approached this
Court. As mentioned earlier, the two main grounds raised by the
Petitioner are his production before the Court beyond 24 hours
after his arrest and though he had complied with the Notice
U/s.35 of the BNSS, he was wrongly arrested in violation of the
mandate of Section 35(5) of the BNSS.
10. Learned APP tried to contend that, since the Petitioner
did not co-operate with the investigation, the investigating agency
was permitted to arrest the petitioner as per the provision of
Section 35 of the BNSS. She further submitted that the Petitioner
was put under arrest as can be seen from the record on 28.05.2025
at 6:00p.m. and then he was produced before the learned
Magistrate on 29.05.2025 at 4:20p.m.; which would be within 24
hours and, therefore, there is no force in the submission of the
learned counsel for the Petitioner.
11. We have considered these submissions. We are unable to
accept the explanation offered by the learned APP. Though the
Petitioner was shown to be arrested on 28.05.2025 at 6:00p.m.,
the background of the case which is accepted in the Affidavit in
reply shows that the police team had gone to Akola on 27.05.2025
itself. The Affidavit in reply clearly states that the Petitioner and
two others were “brought” from Akola to Yerwada police station.
(emphasis supplied). The Affidavit mentions that the relatives of
these three persons were informed when they were taken from
Akola, the local police station i.e. Civil Line police station, Akola
was informed and even the station diary entry was made. After
reaching Yerwada police station at about 10:25p.m. on
27.05.2025, they were interrogated till 1:00a.m. on 28.05.2025
and thereafter, though they were allowed to go; at that point of
time, they were asked to come in the morning. Again they were
interrogated. All this shows that the Petitioner was not a free man.
He was not allowed to go anywhere when he was taken from
Akola to Yerwada police station. According to the police, he was
taken from Akola at 10:00a.m. on 27.05.2025 and according to the
Petitioner, he was taken from Akola at about 8:45a.m. on
27.05.2025. Therefore, in any case, in the morning, the Petitioner
was under the control of the police. He was not a free man. He
was made to travel with the police from Akola to Yerwada police
station. The very fact that the relatives of the Petitioner were
informed, the local police station was informed and the station
diary entry was made to that effect shows that the police officers
attached to Yerwada police station were completely in control of
the Petitioner and, therefore, though the police are not labeling
this act as ‘arrest’, but it was nothing other than arrest of the
Petitioner. Therefore, even by giving concession to the police as per
their averment in paragraph-9 they left Akola at 10:00a.m. on
27.05.2025, from that point onwards, definitely, the Petitioner was
in their custody. Therefore, it can be said that he was arrested from
that point onwards. In that view of the matter, it was necessary for
the police officers to have produced the Petitioner before
10:00a.m. on 28.05.2025 before the nearest Magistrate. That was
not done. He was brought to Yerwada police station and was
produced before the learned Magistrate, Pune on 28.05.2025 at
4:20p.m.; which was clearly beyond 24 hours. Thus, the period of
24 hours is exceeded. The Petitioner was not even produced before
the nearest Magistrate as is mandated under the Article 22(2) of
the Constitution of India. This is the first gross violation committed
by the investigating agency.
12. Even the other contention raised by the learned counsel
for the Petitioner has sufficient force. Sections 35(3) and 35(5) of
the BNSS read thus:
“35. When police may arrest without warrant – (1) Any
police officer may without an order from a Magistrate
and without a warrant, arrest any person -
(2) xxxxx
(3) The police officer shall, in all cases where the
arrest of a person is not required under sub-section (1)
issue a notice directing the person against whom a
reasonable complaint has been made, or credible
information has been received, or a reasonable
suspicion exists that he has committed a cognizable
offence, to appear before him or at such other place as
may be specified in the notice.
(4) xxxxx
(5) Where such person complies and continues to
comply with the notice, he shall not be arrested in
respect of the offence referred to in the notice unless,
for reasons to be recorded, the police officer is of the
opinion that he ought to be arrested.”
13. From the Affidavit in reply itself it is clear that the
Petitioner had remained present in Yerwada police station on
25.04.2025. His statement was recorded. Though, the police are
claiming that after much persuasion and phone calls he had
appeared, but the fact remained that he did appear which was
pursuant to the notice issued U/s.35(3) of the BNSS. Therefore, it
is necessary to see whether there was violation of Section 35(5) of
the BNSS. The requirement under the said sub section is that, if a
person receiving notice complies and continues to comply with the
notice, he shall not be arrested in respect of the offence referred to
in the notice unless, for reasons to be recorded, the police officer is
of the opinion that he ought to be arrested. In this case, no such
written reasons are brought to our notice. Therefore, the Police
officer has not recorded any reasons for the Petitioner’s arrest,
though, he had appeared before the police station and had given
his statement. Thus, we find there is violation of mandate
U/s.35(5) of BNSS, as well. On both these counts, the petition
must succeed. The Petitioner deserves to be released forthwith.
14. Hence, the following order:
O R D E R
i) The Petitioner be released forthwith in
connection with C.R.No.92 of 2025 registered at
Yerwada police station, Pune, if not required in
any other case.
ii) Rule is made absolute in the aforesaid terms.
iii) The petition is disposed of.
(SHYAM C. CHANDAK, J.) (SARANG V. KOTWAL, J.)
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