The court should release accused if he is not produced before court within 24 hours and there is violation of mandate U/s.35(5) of BNSS

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.)