Bombay HC: How the magistrate or Session judge should protect interest of victim if arrest of accused is declared illegal ?

 There is another important aspect in this matter. The offence is quite serious and therefore, it would not be proper if the victim suffers because of the lapse on the part of the investigating agency. A Division Bench of this Court in the case of Kavita Manikikar Vs. Central Bureau of Investigation & Anr. in Writ Petition No.1142 of 2018 vide the Order dated 10th May, 2018 had held the arrest of the Petitioner in that Petition as illegal but had further observed that the investigating agency was not precluded to arrest the Petitioner if the investigation so warranted, by following the due procedure of law. The relevant portion in paragraph 17 of the said Judgment is as follows:-

"17. In result, of the aforesaid discussion, the writ petition is

allowed in terms of prayer clause (a) and it is held that the

arrest of the Petitioner is illegal and contrary to the provisions

of Section 46(4) of the Code of Criminal Procedure. However,

the CBI is not precluded to arrest the petitioner if investigation

warrants so, by following the due procedure of law."

11) Therefore, to strike a balance, liberty needs to be given to the

investigating agency to re-arrest the detenu if they deem fit.

{Para 10}

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CRIMINAL APPELLATE JURISDICTION

CRIMINAL WRIT PETITION NO.4539 OF 2025

Dhanshala Prakash Vishwakarma  Vs. The State of Maharashtra & Ors. 

CORAM : SARANG V. KOTWAL &

SHYAM C. CHANDAK, JJ.

DATED : 7th OCTOBER, 2025.

Citation: 2025:BHC-AS:43397-DB

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Bombay HC: What consequences will follow if arrest of accused is declared illegal by court?

The precious guarantee of 'Life and Liberty' as enshrined in Art. 21 of Constitution of India available to a citizen of this Country can not be denied to a convict, an accused in custody and surely not to a suspect who is sought to be converted to an accused on investigation and then from an accused to a convict on trial. It is an obligation upon State to ensure that there is no infringement of indefeasible right of citizen to life and liberty, which he can not be deprived of without following the procedure established by law. The Code of Criminal Procedure which outlines the manner and to the extent to which a person can be denuded of his liberty, hence, needs a strict compliance. Any deviation from the prescribed procedure in the matter of arrest can therefore, be not countenanced and is liable to be declared as illegal. In such circumstances action of respondent No. 1 - CBI in arresting the petitioner at 22.00 hrs on 20.2.2018 is in violation and utter disregard to Section 46(4) of Code of Criminal Procedure and hence declared as illegal. Needless to say that all consequent actions more particularly that of CBI remand of the petitioner by order dated 21.2.2018 by learned Special Judge are of no legal consequences, null and void. {Para 17}

The officers of the respondent-CBI who are responsible for the flagrant violation of the said provisions are liable for the disciplinary proceedings. The competent authorities are at liberty to initiate such an action against the erring officers, so that officers from such a responsible agency shall deter from committing such an overt act of violation of the statutory provisions, which aim at ensuring an individual's life and liberty and depriving the same in accordance with the procedure prescribed by law.

18. In result, of the aforesaid discussion, the writ petition is allowed in terms of prayer clause (a) and it is held that the arrest of the petitioner is illegal and contrary to the provisions of Section 46(4) of the Code of Criminal Procedure. However, the CBI is not precluded to arrest the petitioner if investigation warrants so, by following the due procedure of law

The competent authorities are at liberty to initiate disciplinary proceedings against the erring officers, for flagrant violation of the statutory provisions.

The respondent No. 1 shall pay costs of Rs. 50,000/- to the petitioner within the period of eight weeks from date of this order. The respondent No. 1 is at liberty to recover the said cost from erring officer/s responsible for violations, as may be concluded after disciplinary proceedings.

 IN THE HIGH COURT OF BOMBAY

Writ Petition No. 1142/2018

Decided On: 10.05.2018

Kavita Manikikar Vs. Central Bureau of Investigation BS & FC and Ors.

Hon'ble Judges/Coram:

S.J. Kathawalla and Bharati H. Dangre, JJ.

Author: Bharati H. Dangre, J.

Citation: 2018 SCC ONLINE BOM 1095,MANU/MH/1098/2018.

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Bombay HC: What order the Magistrate or Session Judge should pass if arrest of accused is found in contravention of provisions of BNSS?

ORDER

1. The arrest of the petitioner in connection with C.R. No.532/2024 of Tembhurni police station is declared to be illegal.

2. The petitioner-Payal Hariom Verma is directed to be released on bail on her executing P.R. Bond in the sum of Rs.30,000/- with one or two sureties in the like amount in connection with C.R. No.532/2024 of Tembhurni police station.

3. The investigating agency is not precluded from arresting the petitioner, if the investigation warrants so, by following the due procedure of law.

IN THE HIGH COURT OF BOMBAY

Writ Petition (st) No. 23969 of 2024

Decided On: 09.01.2025

Payal Hariom Verma Vs. The State of Maharashtra and Ors.

Hon'ble Judges/Coram:

Sarang V. Kotwal and S.M. Modak, JJ.

Author: Sarang V. Kotwal, J.

Citation:  MANU/MH/0177/2025,2025:BHC-AS:1576-DB

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Constitutional Compliance Checklist for Magistrate Courts and Session Courts when Accused is Brought before them for Remand

MANDATORY CONSTITUTIONAL VERIFICATION CHECKLIST

IMMEDIATE ACTIONS (Before Considering Remand)

1. Article 22(1) Compliance Verification

- [ ] Verify if grounds of arrest were communicated to the accused

  - [ ] Check if grounds were provided in writing (not just orally)

  - [ ] Confirm grounds were provided "forthwith" (immediately) after arrest

  - [ ] Ensure grounds were communicated in language understood by accused

- [ ] Examine the arrest memo and related documents

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Illegal Arrest and Violation of Personal Liberty: Bombay High Court Orders Compensation and Inquiry, Upholding Individual Rights Against Arbitrary Police Actions"

 Thus, it is clearly evident that the police failed to comply with the provisions of the Cr. PC as well as the directions of the Apex Court in Arnesh Kumar (Supra), rendering the petitioner's arrest illegal. We find in the peculiar facts, that not only the police but even the learned Magistrate before whom the matter appeared had without any application of mind granted one day's police custody of the petitioner. It is the duty of every Magistrate, when an accused is produced before him/her, to ensure that the provisions of law have been duly complied with and whether police custody in those given facts, is warranted. We are afraid, that even the learned Magistrate failed in his duty to consider whether the arrest of the petitioner was justified having regard to the nature of allegations and Sections with which the petitioner was charged. The Magistrate failed to comply with the directions issued by the Apex Court in Arnesh Kumar (Supra). As per the direction, even the Magistrate concerned, shall be liable for departmental action by the appropriate High Court, for authorising detention without recording reasons. All that the Magistrate in his order dated 29th January 2020 granting one day's Police Custody Remand has observed, 'Perused remand application, FIR and case diary. The names of accused are reflected in FIR. The investigation is in progress. I am satisfied for the reasons mentioned in remand appln that presence of accused are required for further progress in investigation. Hence, all the accused are remanded to police custody till 30.01.2020.' Magistrates are not mute spectators, but are Courts of first instance, before whom the accused are produced. It is there bounden duty to uphold the law and protect the liberty of an individual from arbitrary arrest. In the present case, the petitioner had paid all his dues including the compounding charges and as such the petitioner's arrest was unwarranted and as such arbitrary. The aforesaid action of the police, resulted in mental agony to the petitioner since he was required to stay in police custody for one day despite having paid all dues of Adani Electricity including compounding charges. {Para 21}

22. In view of the aforesaid, we pass the following order:-

ORDER

(i) We direct the State Government to pay compensation of Rs.25,000/- (Rupees Twenty-Five Thousand) to the petitioner, within 6 weeks from today;

(ii) We direct the Commissioner of Police, Mumbai, to appoint an Officer not below the rank of Deputy Commissioner of Police, to conduct a departmental inquiry with respect to the arrest of the petitioner by the police officers of the R.C.F. Police Station, Chembur, Mumbai. The petitioner to be heard in the inquiry so conducted. The inquiry to be completed within 8 weeks from the date of receipt of this order;

(iii) The compensation so paid, to be recovered, after a full- fledged inquiry, from the salary of the person/persons found responsible for the illegal detention of the petitioner;

(iv) A copy of this order be sent to the learned Magistrate who granted police custody of the petitioner.

23. The Petition is allowed and is accordingly disposed of. Rule is made absolute in the aforesaid terms.

24. Petition to be listed on 19th December 2024, for recording compliance of clauses (i) to (iii) of para 22 of the aforesaid Judgment and Order.

25. A copy of this Judgment and Order be placed before the Administrative Committee of this Court headed by the Hon'ble the Chief Justice for taking appropriate steps against the Magistrate, having regard to para 11.8. of the judgment of the Apex Court in Arnesh Kumar (Supra).

 IN THE HIGH COURT OF BOMBAY

Criminal Writ Petition No. 3898 of 2023

Decided On: 01.10.2024

Alex Vs. The State of Maharashtra's and Ors.

Hon'ble Judges/Coram:

Revati Mohite Dere and Prithviraj K. Chavan, JJ.

Author: Revati Mohite Dere, J.

Citation: 2024:BHC-AS:39450-DB,MANU/MH/6240/2024.

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Bombay High Court Quashes Arrest for Breach of 24-Hour Rule and Failure to Inform Nominated Person

Background of the Case

In Hemang Jadavji Shah v. State of Maharashtra & Ors., Writ Petition No. 2989 of 2025, the Bombay High Court was called upon to decide the legality of the arrest and subsequent detention of the petitioner, Hemang Jadavji Shah, a businessman embroiled in a family dispute that escalated into criminal allegations. The case revolved around an FIR registered late at night based on a complaint by the petitioner's brother, involving alleged offences under the Bharatiya Nyaya Sanhita, 2023 (BNS), and a Look Out Circular (LOC) issued to prevent the petitioner from leaving India.

Sequence of Events

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Whether supplying ground of arrest to father of petitioner who had filed complaint against petitioner and was not nominated person is sufficient compliance of S 48 of BNSS?

We have perused the reports placed on record to examine the second ground, which was argued regarding the grounds of arrest not supplied as required under section 48 of BNSS. The material on record only indicates that the grounds of arrest were supplied to the petitioner. The contention raised on behalf of the investigating agency that the grounds of arrest were intimated to the petitioner's father and his lawyer is rather surprising and shocking, as there is no dispute that even the petitioner's father has filed a complaint against the present petitioner. Thus, we see no reasonable ground to support such an argument that the ground of arrest supplied to the petitioner's father would amount to sufficient compliance under section 48 of the BNSS, particularly when the petitioner's father has filed a complaint against the petitioner. No material produced on record indicates that the petitioner had ever nominated or disclosed his father's or his lawyer's name for supplying the grounds of arrest as contemplated under section 48 of the BNSS. Therefore, we find substance in the second ground raised on behalf of the petitioner that the grounds of arrest were not supplied as contemplated under section 48 of the BNSS. {Para 26}

 In the High Court of Bombay

Writ Petition No. 2989 of 2025

Hemang Jadavji Shah Vs State of Maharashtra 

(Before Gauri Godse and Somasekhar Sundaresan, JJ.)

Decided on May 30, 2025

Citation: 2025 SCC OnLine Bom 2145, 2025:BHC-AS:22305-DB

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