Bombay High Court
Mimit Ajit Bhuta vs State Of Maharashtra on 10 March, 2026
Author: N. J. Jamadar
Bench: N. J. Jamadar
2026:BHC-AS:11780
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Santosh
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
WRIT PETITION NO. 5552 OF 2025
Mimit Ajit Bhuta ...Petitioner
Versus
The State of Maharashtra through DC CID ...Respondent
WITH
WRIT PETITION NO. 5553 OF 2025
Anil Ramesh Parerao ...Petitioner
Versus
The State of Maharashtra through DCB CID ...Respondent
Mr. Pranav Badheka, Senior Advocate, a/w Bhomesh Bellam, Isha
Singh and Neel Paralikar, for the Petitioner in WP/5552/2025.
Mr. Rutvij Solanki, a/w Atharva Utekar, for the Petitioner in
WP/5553/2025.
Mr. P. P. Malshe, APP for the State.
CORAM: N. J. JAMADAR, J.
Reserved On: 29th JANUARY, 2026
Pronounced On: 10th MARCH, 2026
JUDGMENT:
–
1. Rule. Rule made returnable forthwith and, with the consent of the
learned Counsel for the parties, heard finally.
2. By these petitions under Articles 226 and 227 of the Constitution
of India and Section 528 of the Bharatiya Nagarik Suraksha Sanhita,
2023, (“BNSS, 2023”), the petitioners assail the legality and validity of
their arrest, remand and further detention on the grounds of non-
compliance of the provisions contained in Section 35(1), 35(3) and
Section 48 of the BNSS, 2023 and the violation of the fundamental
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rights of the petitioners guaranteed under Articles 21 and 22 of the
Constitution of India.
3. The background facts necessary for the determination of these
petitions can be stated as under:
3.1 There was a financial transaction between Mimit Bhuta (A3), the
petitioner in Criminal WP/5552/2025 and Mr. Puthe Sing (the first
informant). Disputes arose in connection with the said transaction.
3.2 On 10th October, 2025, the first informant lodged report with
Chembur Police Station with the allegations that he became
acquainted with Mimit Bhuta (A3), through one Mohammed Khalil.
During the period 2017 to 2018 he had advanced a sum of
Rs.1,25,00,000/- to Mimit Bhuta (A3). After initial repayment of small
amounts, Mimit Bhuta (A3) avoided to repay the amount alongwith
agreed profit thereon.
3.3 On 23rd August, 2024, the first informant was called at Hotel
Maharana, Chembur, for a meeting in connection with the said
transaction. The first informant was informed that Ravi @ Akash Bora
@ D.K. Rao (A1) a dreaded gangster would also attend the said
meeting.
3.4 While the first informant and Mohammed Khalil were discussing
the matter with Mimit Bhuta (A3), one person known as Tambi slapped
the first informant. The other persons, who were present, threatened
the first informant and Mohammed Khalil by exhorting that they shall
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not speak in a loud tone in front of D. K. Rao (A1), “bhai ke samne kum
awaj mein baat karne ka”. D. K. Rao (A1) also threatened the first
informant and witness Mohammed Khalil to forget the interest
component on the said amount lest they may pay with their life.
“muddal ka paisa milega baki rakkam bhool jane ki, jyada paise ka
awaj kiya to samj jana, paisa jan se pyara nahi hota.”
3.5 The first informant initially filed a compliant on 12 th August, 2025.
Enquiry was conducted by CIU-DCB-CID, Mumbai. As enquiry
revealed commission of cognizable offences, on 10 October 2025, vide
C.R.No.596 of 2025, FIR came to be registered at Chembur Police
Station against Ravi @ Akash Bora @ D. K. Rao (A1), Mimit Bhuta
(A3) and Anil Parerao (A2), the petitioner in WP/5553/2025, Tambi and
their associates for the offences punishable under Sections 308(4),
61(2) and 3(5) of the BNSS, 2023. The investigation came to be
transferred to DCB CID and crime was re-registered at CR No.92/2025.
3.6 Ravi @ Akash Bora @ D. K. Rao (A1) was arrested on 10 th
October, 2025. The petitioners were also arrested between 11.15 to
11.30 pm. on 10th October, 2025. The petitioners were produced
before the learned Magistrate on 11th October, 2025. After initial police
custody remand, the petitioners have been remanded to judicial
custody.
3.7 The petitioners have filed these petitions assailing the arrest,
remand and detention on account of the alleged breach of the
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constitutional safe-guard and statutory requirements. First and
foremost, the arrest of the petitioners was wholly unwarranted and
illegal as none of the offences with which the petitioners were initially
charged entailed punishment exceeding seven years. It was,
therefore, necessary for the Investigating Officer to give a notice to the
petitioners under Section 35(3) of the BNSS, 2023. In the light of the
delay in lodging the FIR, when the incident had occurred on 23 rd
August, 2024, there was no necessity of arrest. Secondly, the
purported reasons, which were furnished to the petitioners
demonstrated clear non-application of mind. Those reasons furnished
to the petitioners do not constitute, “reasons” which would justify the
arrest under sub-clauses (a) to (e) of sub-clause (b)(ii) of sub-section
(1) of Section 35. At any rate, the element of necessity of arrest is
conspicuous by its absence. Thirdly, the purported reasons are general
in nature and appear to be copy paste of the template of sub-clauses
(a) to (e) of Section 35(1)(b)(ii). Fourthly, there was infraction of the
mandate contained in Section 48 of BNSS, 2023, in two ways. One,
the intimation of arrest given to the relatives did not disclose the place
where the petitioners were being detained. Two, the grounds of arrest
were not communicated to the friends/relatives of the petitioners.
Cumulatively, the fundamental rights of the petitioners have been
grossly violated.
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3.8 The petitioners contends all these grounds were urged before
the learned Magistrate at the time of the remand. However, the learned
Magistrate unjustifiably discarded those grounds.
It would be contextually relevant to note that during the pendency of
the petition, the Competent Authority has granted prior approval under
Section 23(1) of the Maharashtra Control of Organized Crime Act, 1999
(“MCOCA, 1999”) and the provisions of MCOCA, 1999 have been
invoked against the petitioners and the co-accused. The petitioners
were produced before the Special Court, MCOCA, on 18 th November,
2025 and orders of remand and detention have been passed by the
Special Court, MCOCA. The petitioners assert since the initial arrest
and detention of the petitioners was not in consonance with law, all
subsequent and consequential proceedings would fall through. The
petitioners have, thus, assailed the further orders of remand and
detention as well.
3.9 An affidavit-in-reply is filed on behalf of the respondent State. It is
contended that the arrest of the petitioners was in complete adherence
to the statutory provisions. The petitioners were promptly informed the
grounds of their arrest. The Investigating Officer has satisfied himself
and recorded the reasons which spelled out the necessity of arrest.
Intimation of arrest was given to the relatives of the accused. They
were produced before the learned Magistrate in conformity with the
constitutional and statutory mandate. The petitioners were effectively
represented before the learned Magistrate by their Advocates. Thus,
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the petitioners have not suffered any prejudice. Since the petitioners
had hired the services of a dreaded gangsters (A1) the arrest of the
petitioners was absolutely necessary for proper investigation, prevent
further harm to the first informant and the witnesses and also to
prevent the accused from tampering with the evidence.
4. In the wake of the aforesaid facts and pleadings, I have heard
Mr. Pranav Badheka, the learned Senior Advocate for the petitioner in
WP/5552/2025, Mr. Rutvij Solanki, the learned Counsel for the
petitioner in WP/5553/2025 and Mr. P. P. Malshe, the learned APP for
the State, at some length. The learned Counsel took the Court through
the material on record.
5. Mr. Badheka, the learned Senior Advocate for the petitioner,
would urge that, the the facts of the case would hardly justify the arrest
of the petitioner. The incident, in question, has allegedly occurred on
23rd August, 2024. After almost one year, a written complaint was
allegedly filed by the first informant on 12 th August, 2025. FIR came to
be registered two months later for the offences which did not entail
punishment exceeding seven years. In such circumstances, it was
incumbent upon the Investigating Officer to give notice to the petitioner
under Section 35(3) of the BNSS, 2023. By no stretch of imagination,
could it be said that immediate arrest of the petitioners was warranted.
The breach of the mandate contained in Section 35(3) of the BNSS,
2023, thus, vitiated the action of arrest. To this end, a very strong
reliance was placed by Mr. Badheka on the decisions in the cases of
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Arnesh Kumar vs. State of Bihar and anr.1 and Satyendra Kumar
Antil vs. CBI2.
6. Secondly, Mr. Badheka would urge, the prosecution has
singularly failed to establish the necessity of arrest. The conditions
which would justify the arrest under sub-clauses (a) to (e) of Section
35(1)(b)(ii) of BNSS, 2023 have been copiously reproduced as the
grounds of arrest. The underlying facts that would sustain the
formation of opinion envisaged by those sub-clauses are completely
absent. Mere reproduction of the template of aforesaid sub-clauses (a)
to (e) can never be the satisfactory compliance of the statutory
mandate. It was further urged that, the checklist containing the
purported reasons is almost identical for A2 and A3 and, thus, betrays
a complete non-application of mind as the reasons for arrest ought to
be individual qua each of the accused. To buttress this submission ,
Mr. Badheka placed a strong reliance on a Division Bench judgment of
this Court in the case of Chandrashekhar Bhimsen Naik vs. State of
Maharashtra and ors.3. Reliance was also placed on a decision of
another Division Bench judgment of this Court in the case of Chanda
Deepak Kochar vs. Central Bureau of Investigation4.
7. Mr. Badheka would submit that the provisions contained in
Section 48 of the BNSS, 2023 were also observed in breach. Grounds
1 2014 (8) SCC 273
2 (2022) 10 SC 51.
3 WP/5764/2025, decided on 3rd December, 2025.
4 2023 Online Bom 72.
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of arrest were not communicated to the relatives of the petitioner. A
mere intimation of arrest that too without disclosing the place where the
petitioners were detained was given to the relatives. It was submitted
that in view of the decision of the Supreme Court in the case of Vihaan
Kumar vs. State of Harayana5, it was incumbent upon the
Investigating Officer to also communicate the grounds of arrest to the
relatives of the accused. Banking upon the judgment in the case of
Ahmed Mansoor and ors. vs. The State rep. By Assistant
Commissioner of Police and Anr.6, Mr. Badheka would urge that the
law laid down in Vihaan Kumar (supra) has been approved in
subsequent decisions.
8. In opposition to this, Mr. Malshe, the learned APP, countered the
submissions on behalf of the petitioners. It was urged that none of the
grounds sought to be canvassed on behalf of the petitioners rendered
the arrest, remand and detention of the petitioner illegal. Mr. Malshe
submitted with tenacity that, the arrest of the petitioners, in the context
of the grave indictment against the petitioners, was in conformity with
the statutory requirements. The grounds of arrest were immediately
furnished to the petitioners. Intimation was given to their relatives. The
mere fact that few of the grounds of arrest are similar does not imply
that the Investigating Officer has not recorded satisfaction about the
necessity of arrest.
5 2025 SCC OnLine SC 269.
6 Cri.Appeal/4505/2025 (SLP (Cri.)/198/2025), dtd.14/10/2025.
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9. Mr. Malshe laid emphasis on the fact that from the perusal of the
material on record, an inference cannot be drawn that the petitioners
suffered any prejudice. In the absence of demonstrable prejudice, the
petitioners cannot be permitted to draw mileage of technicalities. Mr.
Malshe placed a very strong reliance on the judgment of the Supreme
Court in the case of State of Karnataka vs. Sri Darshan Etc.7
Reliance was also placed on the judgment of the Supreme Court in the
case of Mihir Rajesh Shah vs. State of Maharashtra and another8
10. Moreover in view of the invocation of the provisions contained in
MCOCA, 1999, at this stage, the grounds sought to be urged on behalf
of the petitioners cannot be countenanced, submitted Mr. Malshe.
11. To begin with, it may be apposite to consider the ground of non-
compliance of the provisions contained in Section 35(3) of the BNSS,
2023. There could be no duality of opinion that arrest has grave
consequences. There is a significant distinction between the power to
arrest and necessity of arrest. The fact that, under the statute, the
Police Officer has power to arrest does not necessarily imply that the
arrest must be effected in every case. The constitutional guarantee of
personal liberty has been construed in a dynamic manner to strike at
unjustified arrest and detention. The decisions in the cases of Joginder
Kumar vs. State of U.P. and others9, Anresh Kumar (supra)
7 2025 SCC OnLine SC 1702.
8 Cri.Appeal/2195/2025 decided on 6/11/2025.
9 (1994) 4 SCC 260.
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emphasies the value of cherished personal liberty and cast a duty on
the investigating agency as well as the magistracy to guard against
unwarranted and unjustified arrest.
12. In the case of Arnesh Kumar (supra), the Supreme Court
emphasised the consequences which entail an arrest of a person in the
following words:
“5. Arrest brings humiliation, curtails freedom and cast scars
forever. Law makers know it so also the police. There is a battle
between the law makers and the police and it seems that police
has not learnt its lesson; the lesson implicit and embodied in the
Cr.PC. It has not come out of its colonial image despite six
decades of independence, it is largely considered as a tool of
harassment, oppression and surely not considered a friend of
public. The need for caution in exercising the drastic power of
arrest has been emphasized time and again by Courts but has
not yielded desired result. Power to arrest greatly contributes to
its arrogance so also the failure of the Magistracy to check it.
Not only this, the power of arrest is one of the lucrative sources
of police corruption. The attitude to arrest first and then proceed
with the rest is despicable. It has become a handy tool to the
police officers who lack sensitivity or act with oblique motive.”
13. The Supreme Court observed that its endeavour in the said
judgment was to ensure that Police Officers do not arrest the accused
unnecessarily and Magistrate do not authorize detention casually and
mechanically. In order to ensure the scrupulous compliance of the
mandate contained in Sections 41 and 41A of the Code of Criminal
Procedure, 1973 (“the Code”) the Supreme Court issued directions.
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14. In the case of Satyendra Kumar Antil (supra) the Supreme
Court again reiterated the principles enunciated in the case of Arnesh
Kumar (supra). It was, inter alia, observed that the provisions
contained in Sections 41 and 41A of the Code are facets of right to life
and personal liberty guaranteed under Article 21 of the Constitution.
The observations of the Supreme Court in paragraphs 24, 25, 26, 28,
29 and 100 read as under:
“24. This provision mandates the police officer to record his
reasons in writing while making the arrest. Thus, a police
officer is duty-bound to record the reasons for arrest in
writing, Similarly, the police officer shall record reasons when
he/she chooses not to arrest. There is no requirement of the
aforesaid procedure when the offence alleged is more than
seven years, among other reasons.
25. The consequence of non-compliance with Section 41
shall certainly enure to the benefit of the person suspected of
the offence. Resultantly, while considering the application for
enlargement on bail, courts will have to satisfy themselves on
the due compliance of this provision. Any non-compliance
would entitle the accused to a grant of bail.
26. Section 41A deals with the procedure for appearance
before the police officer who is required to issue a notice to
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, and arrest is not required under Section
41(1). Section 41B deals with the procedure of arrest along
with mandatory duty on the part of the officer.
…….
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28. We only reiterate that the directions aforesaid ought to be
complied with in letter and spirit by the investigating and
prosecuting agencies, while the view expressed by us on the
non-compliance of Section 41 and the consequences that
flow from it has to be kept in mind by the Court, which is
expected to be reflected in the orders.
……..
100. In conclusion, we would like to issue certain directions.
These directions are meant for the investigating agencies and also
for the courts. Accordingly, we deem it appropriate to issue the
following directions, which maybe subject to State amendments.:
100.1…………
100.2 The investigating agencies and their officers are duty-bound
to comply with the mandate of Section 41 and 41A of the Code and
the directions issued by this Court in Arnesh Kumar (supra). Any
dereliction on their part has to be brought to the notice of the higher
authorities by the court followed by appropriate action.
100.3 The courts will have to satisfy themselves on the compliance
of Section 41 and 41A of the Code. Any non-compliance would
entitle the accused for grant of bail.” (emphasis supplied)
15. The aforesaid enunciation of law makes it abundantly clear that,
arrest is not mandatory. If the Investigating Officer is satisfied that a
person has committed a cognizable offence punishable with an
imprisonment for a term which may be less than seven years or which
may extend to seven years, he can resort to arrest the accused only
when there is a reason to believe that such person has committed an
offence and there is necessity for an arrest. The conditions or
justification of the necessity for the arrest are stipulated in sub-clauses
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(a) to (e) of Section 35(1)(b)(ii). I shall advert to that aspect of the
matter a little later.
16. At this stage, it has to be seen, whether the arrest of the
petitioners without issuing a notice under Section 35(3) of the BNSS,
2023 was warranted. As noted above, the incident had allegedly
occurred on 23rd August, 2024. The written complaint about the said
incident was lodged after almost one year of the alleged occurrence.
Preliminary enquiry was stated to be conducted for over two months.
Yet, under few hours of the registration of the FIR on 10th October,
2025, the petitioners were straightaway arrested. The major offence
with which the petitioners were then charged was that of putting the
first informant and the witness in the fear of life or of grievous hurt in
order to the committing of extortion, which entailed punishment which
may extend to seven years. The element of delay in reporting the
matter to police and the time that was consumed in the purported
enquiry after the complaint was lodged by the first informant, leads to
an inexorable inference that neither gravity of the offence nor the
exigency of the situation was such that, the immediate arrest of the
petitioners, without complying with the mandate contained in Section
35(3) of BNSS, 2023, was warranted.
17. This propels me to the pivotal question, whether in the facts of
the case at hand, the grounds of arrest communicated to the
Petitioners, and the reasons for arrest recorded by the IO, justify the
arrest. The relevant part of Section 35(1) which authorises a Police
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Officer to arrest a person without an order from a Magistrate and
without a warrant, reads as under :
“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-
(a)who commits, in the presence of a police officer, a
cognizable offence; or
(b)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 punishable with imprisonment for a term which
may be less than seven years or which may extend to
seven years whether with or without fine, if the following
conditions are satisfied, namely :-
(i) the police officer has reason to believe on the
basis of such complaint, information or suspicion that such
person has committed the said offence;
(ii) the police officer is satisfied that such arrest is
necessary –
(a) to prevent such person from committing any
further offence; or
(b) for proper investigation of the offence; or
(c) to prevent such person from causing the
evidence of the offence to disappear or tampering with
such evidence in any manner; or
(d) to prevent such person from making any
inducement, threat or promise to any person acquainted
with the facts of the case so as to dissuade him from
disclosing such facts to the Court or to the police officer; or
(e) as unless such person is arrested, his presence
in the Court whenever required cannot be ensured,
and the police officer shall record while making such
arrest, his reasons in writing:
Provided that a police officer shall, in all cases where
the arrest of a person is not required under the provisions
of this sub-section, record the reasons in writing for not
making the arrest; or
……………”
18. Before examining the issue of sufficiency of the reasons for
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arrest, to sustain the legality of arrest, the constitutional perspective
which finds the statutory framework in the form of the provisions of the
BNSS 2023 (the Code of Criminal Procedure, 1973), deserves to be
kept in view. The guarantee of right to life and personal liberty
enshrined under Article 21 has received a wide and encompassing
connotation. One of the facets of the personal liberty is procedural
safeguards from the abuse of the power by the instrumentality of the
State and judicial scrutiny of the State action, where the personal
liberty is sought to be deprived under the mandate of law. The right to
be informed of the grounds of arrest, thus, flows from the overarching
guarantee of right to life and personal liberty.
19. Under Article 22(1), no person who is arrested shall be detained
in custody without being informed, as soon as may be, of the grounds
of such arrest nor shall he be denied the right to consult, and to be
defended by, a legal practitioner of his choice. Article 22 further fortifies
the guarantee of personal liberty by casting positive obligations to
furnish the grounds of arrest.
20. The aforesaid constitutional safeguards find resonance in the
legislative prescription. Section 47 of the BNSS, 2023 (Section 50 of
CrPC, 1973), thus, casts duty on the police officer or other person
arresting any person without warrant to forthwith communicate the
arrestee the grounds of arrest. Section 48 of BNSS 2023 (Section 50-
A of CrPC, 1973) enlarges the scope of the right by enjoining the
person who effects the arrest to inform the grounds of arrest to the
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relative, friend, or such other person, as may be disclosed or
nominated by the arrestee.
21. The obligation to communicate the grounds of arrest has a
salutary purpose. It is not conceived of as a mere formality of
communicating some grounds of arrest howsoever irrelevant, flimsy or
unsustainable those grounds may be. Those grounds ought to reflect
sufficient material or information to equip the accused to effectively
defend himself.
22. The purpose of informing to the arrested person the grounds of
his arrest is salutary and sacrosanct, in as much as this information
would be only effective means for the arrested person to consult his
advocate, oppose the police custody remand and to seek bail (Prabir
Purkayastha v/s. State (NCT of Delhi)10.
23. In the case of Mihir Rajesh Shah V/s. State of Maharashtra
and Anr.11, the Supreme Court after adverting to the previous
pronouncements, exposited in clear and explicit terms that the legal
position which emerges is that, the constitutional mandate provided in
Article 22(1) of the Constitution, is not a mere procedural formality, but
the constitutional safeguard in the form of fundamental rights. The
intent and purpose of the constitutional mandate is to prepare the
arrested person to defend himself. The grounds of arrest must be
provided to the arrestee in such a manner that sufficient knowledge of
facts constituting grounds is imparted and communicated to the
10 (2024) 8 SCC 254
11 Cri. Appeal No.2195 of 2025 dt. 6 Nov. 2025
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arrested person effectively in a language which he/she understands.
The mode of communication ought to be such that it must achieve the
intended purpose of the constitutional safeguard.
24. In the light of the aforesaid position in law, reverting to the facts
of the case at hand, it is necessary to note the grounds of arrest which
were communicated to the Petitioners and the reasons for arrest which
were recorded in the checklist furnished to the Magistrate. Qua Mimit
Ajit Bhuta (A3), the following reasons for arrest were recorded :
“(1) the accused has committed cognizable and non-
bailable offences;
(2) to prevent the accused from commission of similar
offence in future;
(3) to prevent the accused from causing
disappearance of evidence and tampering with the
evidence;
(4) the accused with a view to cause wrongful loss to
the first informant entered into a criminal conspiracy
with the gangster to commit criminal intimidation;
Intensive investigation was, thus, required.
(5) The wanted accused were yet to be traced,
and, thus, information about the wanted accused was
to be collected from the accused. To investigate how
the accused came in contact with the gangster Ravi
@ D.K.Rao (A1) and through whom.
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(6) To conduct proper investigation of the offence.
25. Qua Anil (A2), the aforesaid reasons for arrest were reproduced
verbatim.
26. In the grounds of arrest furnished to both the Petitioners with
reference to the involvement of the gangster and the Petitioners in the
alleged conspiracy and their presence at the place of the incident in
question, it was added that the accused could not offer satisfactory
explanation. Common grounds of arrest were furnished to both the
Petitioners.
27. In the light of the above, a two-pronged submission was
canvassed on behalf of the Petitioners. First, the reasons for arrest are
general in nature and mere reiteration of the template of sub-clauses
(a) to (e) of Section 35(1)(b)(ii). Second, recording of verbatim grounds
of arrest and reasons for arrest qua Mimit (A3) and Anil (A2) reflects
complete non-application of mind. The element of individuality of the
necessity of arrest, which ought to be evincible from the grounds of
arrest, is completely lost.
28. Mr. Solanki, learned Counsel for Anil (A2) would submit that the
reasons for arrest qua Anil (A2) which are identical to that of Mimit (A3)
are wholly irrelevant. Inviting attention of the Court to the FIR, Mr.
Solanki would urge that, when the report was lodged, Anil (A2) was
neither the accused nor even a suspect. Anil (A2) had admittedly no
financial transactions with the first informant. The only role attributed to
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Anil (A3) is that he is an associate of Mimit (A3) and on the instructions
of Ravi @ D.K.Rao (A1), Anil (A2) had written the amount and names
on a chit.
29. Mr. Malshe, learned APP, made a valiant effort to support the
legality of the arrest on the basis of the aforesaid reasons for arrest
and the grounds of arrest furnished to the Petitioners.
30. The constitutional safeguards and the statutory mandate
contained in the provisions of BNSS 2023 would be rendered illusory if
the communication of the very conditions which are mentioned in sub-
clauses (a) to (e) of Section 35(1)(b)(ii) is construed to be sufficient
compliance. Mere reproduction of the statutory language without
communicating as to how those reasons were borne out from the facts
and circumstances of the case in which the arrest is made, would not
be sufficient compliance of the mandate of law. If the afore-extracted
reasons are perused, it becomes abundantly clear that reason Nos.1 to
3 and 6 are mere reproduction of the text of the statutory provisions.
On what basis and in what circumstances and for which reasons the
Investigating officer found the arrest of the Petitioners necessary is not
spelled out by the aforesaid checklist.
31. So far as the reason No.4, this Court finds substance in the
submission of Mr. Solanki that, from the material on record, the ground
of causing wrongful loss to the first informant in a financial transaction
by entering into a criminal conspiracy, appears to be inapposite qua
Anil (A2). The attribution of identical reasons to justify the arrest of
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Mimit (A3) and Anil (A2) thus, prima facie, betrays non-application of
mind.
32. In the case of Chandrashekhar Bhimsen Naik (supra), on
which strong reliance was placed by Mr. Badheka, a Division Bench of
this Court emphasised that, the arrest being an individual act, the
ground of arrest as well as the reasons for arrest must reflect the
personal role attributed to the particular accused. The observations in
paragraphs 24 to 26 read as under :
“24. We have given a thoughtful consideration to the
aforesaid submission in light of the legal proposition
evolved by the Apex Court in Arnesh Kumar (supra) and
Satender Kumar Antil (supra) which has held that the Police
Officer before effecting arrest must mandatorily record
reasons in writing while making the arrest particularly when
the offence alleged is punishable with imprisonment of 7
years or less than 7 years and the consequence of non
compliance must ensure to the benefit of the person
suspected of the offence.
In a case like the present one when there are multiple
accused, it ought to have been ensured that the reasons of
arrest could be discerned qua each of the accused
individually by setting out them in specific and distinctly.
Arrest is an individualized act and the decision to arrest
cannot be based on the fact that multiple persons are
named together as arrest must be justified separately for
each accused. Since each of the accused is arrested
separately, the Investigating Officer must form independent
satisfaction qua each of the accused and it is imperative for
him to examine specific role of each accused, and the need
for arresting him. Furnishing common or identical reasons
for all accused as is sought to be attempted to be done in
the checklist furnished to the Magistrate cannot be
countenanced as the reasons for arrest cannot be copied,
repeated mechanically or stated in collective terms as each
accused require a distinct reason since the act of arrest of
each accused is distinct.
Necessity of arrest must be established accused-wise as
the Section 35 permit the Police Officer to arrest without
warrant on the basis of his belief or suspicion that the
person has committed offence and the satisfaction
contemplated under Section 35(1) b) (ii), (a) to (e) has to be
accused specific. The Investigating Officer must show why
arrest is necessary for each accused individually,
considering his flight risk, potential of his tampering with
evidence and of influencing witnesses and the need for his
custodial interrogation. Definitely all these parameters
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cannot be common to each of the accused and they must
be individualistic.
In any case arrest cannot be justified based on collective
conduct even if the offence is jointly committed, as the
grounds/ reasons of arrest cannot be common as the law
require reasons linked to the individual and not to the
group.
Arrest being an individual act, therefore, the grounds of
arrest as well as reasons of arrest, must reflect the personal
role attributed and personal necessity for effecting such
arrest and the Investigating Officer is expected to record
how an act of particular accused contribute to the offence
and why he/she shall not be left out and why the custody is
necessary.
Group based reasoning clearly reflect non application of
mind as when the Investigating Officer use template
reasons, formulating general grounds, for all it legally
amounts to a mechanical arrest which cannot be sustained.
An arrest would become illegal if individual grounds qua
each accused are missing and if the reasons do not
specifically explain why a particular accused is arrested, the
arrest shall be violative of the statutory requirement and the
safeguard.
25. The checklist which is forwarded to the
Magistrate, has merely used the template of reasons as set
out in Section 35(1) (b)(ii), but there is abject failure to
make the reasons specific qua the Petitioner who is
arrested and merely by using the template of clause (a) to
(e) by stating that it is necessary to prevent the person from
committing offence, for proper investigation of documents
or for preventing from causing disappearance of the
evidence of the offence or making any inducement, threat
cannot be used in from of template……..
26. The mandate of recording reasons by the
police officer so as to avoid arresting the accused
unnecessarily, also extend to the Magistrate, by providing
that he shall not authorize the detention casually and
mechanically. Since the accused arrested without warrant
by police enjoy the constitutional right under Article 22(2) of
the Constitution and Section 57 of the CrPC, to be
produced before the Magistrate without unnecessary delay
and in no circumstances beyond 24 hours excluding the
time of journey, the power of the Magistrate to authorize
detention is considered to be a solemn function, as it affects
the liberty and freedom of an individual and is expected to
be exercised with great care and caution.
Before the Magistrate authorizes a detention of an accused
in any form, he has to satisfy himself, that the arrest made
is legal and in accordance with the Constitutional and
statutory safeguards and the Magistrate before authorizing
the detention shall record his own satisfaction, may be in
brief but it must be reflected from his order.
It shall never be based upon the ipse dixit of the police
officer but the Magistrate must scrutinize the reasons for
each accused independently and as the police officer
cannot record common reasons for arrest, similarly, the
Magistrate cannot accept common remand note and must
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insist on distinct reasons for arrest qua each accused and
scrutinize them separately. A Magistrate who is expected to
look into the reasons, which are recorded by the police
officer while effecting arrest based on his individual
satisfaction that the arrest is necessary on any of the
parameter set out in Section 35 (i)(b)(ii) (a) to (c), the
Magistrate is duty bound to review those reasons, when a
person is produced for remand and he shall not
mechanically approve the police request for detention but
apply his mind and only on being satisfied that the reasons
recorded by the police officer are sufficient enough to detain
the accused, grant the custody.” (emphasis supplied)
33. In the case at hand, this Court is of the view that the arrest is
vitiated on three counts. Firstly, the grounds of arrest and the reasons
for arrest, are general in nature and mere reproduction of the
conditions envisaged by sub-clauses (a) to (e) of Section 35(1)(b)(ii) of
BNSS, 2023. Secondly, identical grounds of arrest and reasons for
arrest have been attributed to Mimit (A3) and Anil (A2), though there
roles in the alleged occurrence are completely dissimilar. Thirdly,
common and general grounds and reasons without any effort at co-
relating the grounds with the fact-situation qua accused individually,
betray non-application of mind.
34. The learned Magistrate while authorizing the detention of the
Petitioners does not seem to have applied his mind and satisfied
himself about the sufficiency of the reasons for arrest, as placed before
him in the form of checklist. It was simply recorded that the IO has
given reasons and grounds of arrest for his satisfaction that the arrest
of the accused was necessary. In fact, the learned Magistrate went on
to observe that the grounds of arrest were also communicated to the
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relatives of all the accused, which does not seem to be borne out by
the record.
35. The learned Magistrate, in the considered view of this Court, did
not review the justifiability of the reasons for arrest on the touchstone of
the constitutional safeguards and statutory prescriptions and the duty
cast on the Magistrate by the authoritative precedents.
36. The third count of infraction pressed into service on behalf of the
Petitioners that the grounds of arrest were not communicated to the
relatives of the Petitioners, is borne out by the intimation of arrest given
to the relatives of the Petitioners. It records that the Petitioners were
arrested on 10 October 2025, and, they would be produced before the
learned Magistrate on 11 October 2025. The grounds of arrest were
evidently not communicated to the relatives. Nor the prosecution
claims that such grounds were indeed communicated to the relatives.
37. In the case of Vihaan Kumar (supra), in the supplementing
judgment, Hon’ble Justice N. Kotiswar Singh, observed that the
requirement of communicating the grounds of arrest, to be purposeful,
is also required to be communicated to the friends, relatives or such
other persons of the accused as may be disclosed or nominated by the
arrested person for the purpose of giving such information as provided
under Section 50-A of the CrPC. The purpose of communicating the
grounds of arrest to the detenue, and in addition to his relatives as
mentioned above is not merely a formality but to enable the detained
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person to know the reasons for his arrest but also to provide the
necessary opportunity to him through his relatives, friends or
nominated persons to secure his release at the earliest possible
opportunity for actualising the fundamental right to liberty and life as
guaranteed under Article 21 of the Constitution. It was further
observed that the requirement of communicating the grounds of arrest
in writing is not only to the arrested person, but also to the friends,
relatives or such other person as may be disclosed or nominated by
the arrested person, so as to make the mandate of Article 22(1) of the
Constitution meaningful and effective failing which, such arrest may be
rendered illegal.
38. Reliance placed by Mr. Malshe on the judgment in the case of
State of Karnataka vs. Sri Darshan Etc. (supra), to drive home the
point that, in the absence of demonstrable prejudice, irregularity in this
regard, is the curable defect and cannot by itself warrant release on
bail, does not assists the case of the prosecution in the facts and
circumstances of the instant case.
39. As noted above, vitiation began with the failure to give notice
under Section 35(3) of BNSS 2023, especially in the light of the
inordinate delay in lodging the FIR. The infirmity continued in
furnishing the common and general grounds of arrest to the Petitioners.
Had it been a case of mere failure to furnish the grounds of arrest to
the relatives and friends, probably the element of absence of prejudice
to the Petitioners could have been urged by the prosecution.
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40. It would be contextually relevant to note that, in the case of
Ahmed Mansoor and ors. (supra), the Supreme Court clarified that,
in the case of State of Karnataka vs. Sri Darshan Etc. (supra), the
facts were different. It was dealing with the cancellation of bail where
chargesheet had been filed and the grounds of detention were served
immediately. The Supreme Court has, in fact, given its approval to the
decision in the case of Vihaan Kumar (supra).
41. The conspectus of aforesaid consideration is that, once the very
arrest and remand of the Petitioners is found to be illegal, the
subsequent orders of remand do not infuse legality into initial orders.
Resultantly, the Petitioners deserve to be set at liberty.
42. Hence, the following order :
ORDER
(i) The Writ Petitions stand allowed.
(ii) The arrest of the Petitioners dated 10 October 2025 and
order of remand dated 11 October 2025 are declared illegal.
(iii) Consequentially, all the subsequent orders of remand and
detention are also declared illegal.
(iv) The Petitioners are set at liberty if not required to be
detained in any other case, upon furnishing PR bond in the sum of
Rs.50,000/- each, with one or more sureties in the like amount to the
satisfaction of the learned Special Judge, MCOCA.
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(v) The Petitioners shall not contact the first informant, victim,
any of the relatives of the first informant in any manner and for any
purpose whatsoever and shall not tamper with the prosecution
evidence. The Petitioners shall not directly or indirectly make any
inducement, threat or promise to any person acquainted with the facts
of the case so as to dissuade him from disclosing the facts to Court or
any police officer.
(vi) The Petitioners shall regularly attend the proceedings
before the jurisdictional Court.
(vii) Rule made absolute to the aforesaid extent.
(viii) No costs.
[N. J. JAMADAR, J.]
Signed by: S.S.Phadke 26/26
Designation: PS To Honourable Judge
Date: 10/03/2026 21:58:22
