Driving an arrested man some 400 kilometres to the police station investigating the case, without first producing him before a Magistrate near the place of arrest, violates Article 22(2) of the Constitution even if he reaches a court within 24 hours, the Bombay High Court has held, ordering his release while leaving the door open for a lawful re-arrest.
Mumbai: The Bombay High Court has allowed a habeas corpus petition by a man arrested at Barshi in Solapur district and taken to Kashigaon Police Station in Mira-Bhayander, holding that the investigating agency was duty-bound to produce him before the nearest Magistrate at Barshi and that his production before a Magistrate at Mira Road within 24 hours did not cure the violation [Petitioner v. State of Maharashtra and Another].
A Division Bench of Justice Sarang V. Kotwal and Justice Ranjitsinha Raja Bhonsale directed his release on bail on a personal bond of Rs 50,000, and permitted re-arrest only if absolutely necessary and in accordance with the Supreme Court’s guidelines.
Background of the case
An FIR was registered at Kashigaon Police Station on June 30, 2026 under several provisions of the Bharatiya Nyaya Sanhita, 2023, including Sections 69 and 115(2). The informant alleged that the petitioner had established physical relations with her, at times with consent and at times by force, on a false promise of marriage, and also alleged theft of her ornaments, threats and assault. These allegations are yet to be tested.
On August 21, 2026, a police team from Kashigaon took the petitioner into custody at Barshi with the help of the local police, served the notice of arrest grounds and informed a relative. A station diary entry at Barshi recorded his departure at 6:14 PM. He reached Kashigaon at 4:50 AM on August 22, when the arrest form was prepared. As the Magistrate at Mira Road was attending a judicial workshop that afternoon, he was eventually produced at about 7:40 PM on August 22, and the Magistrate, finding production within 24 hours, remanded him to police custody.
What the parties argued
Counsel for the petitioner argued that no transit remand was obtained and that he was not produced before any Magistrate at or near Barshi before being taken about 380 to 400 km away, in breach of Article 22(2) and Sections 58 and 187 of the Bharatiya Nagarik Suraksha Sanhita, 2023. He relied on the Division Bench ruling in Vachhalabai v. State of Maharashtra, 2019 SCC OnLine Bom 2937. The State, relying on the investigating officer’s affidavit, maintained that he was produced within 24 hours of arrest and that no provision had been violated.
Nearest Magistrate, not merely within 24 hours
The Bench relied on Vachhalabai, where a Division Bench had held that the 24-hour period under Article 22(2) is tied to the term “nearest magistrate”, which cannot be read as the Magistrate having jurisdiction over the offence, and that once an accused is taken out of the jurisdiction of the nearest Magistrate, the detention becomes unauthorised and is not regularised by later production before the jurisdictional court within 24 hours. That view was followed in Shakoor Ahmed Jamaluddin Sayed v. State of Maharashtra in May 2025. Applying it, the Court held:
“Thus, it is clear that the Investigating Agency was duty bound to produce the Petitioner before the ‘nearest Magistrate’ at Barshi, from where he was arrested. The contention that he was produced within 24 hours by itself is not sufficient. The arrested person has to be produced before the nearest Magistrate as per the requirement of the above provisions.”
Release with liberty to re-arrest
Finding a clear violation, the Court held that the petitioner deserved relief. On the State’s request, given the seriousness of the allegations, that re-arrest be permitted, the Court referred to the Supreme Court’s September 21, 2026 ruling in Jaskaran Jeet Singh Deol v. State of Punjab and to the approach in Shakoor Ahmed, where re-arrest was allowed only if absolutely necessary and after reasonable notice.
The petitioner was directed to be released on a personal bond of Rs 50,000 with one or two sureties, on conditions that he cooperate with the investigation, not tamper with evidence or contact witnesses, report to Kashigaon Police Station once a fortnight until the chargesheet is filed and on the first Sunday of every month thereafter, and deposit his passport, if any. The Court made clear that any re-arrest, if absolutely necessary, must follow the law and the guidelines in Jaskaran Jeet Singh Deol.
Case Title: Petitioner v. State of Maharashtra and Another
Case Number: Criminal Writ Petition No. 4598 of 2026
Bench: Justice Sarang V. Kotwal and Justice Ranjitsinha Raja Bhonsale, Bombay High Court
Date of Judgment: September 23, 2026
Appearance: Priyal Sarda with Shubham Sane and Seema Dighe for the petitioner; M.M. Deshmukh, APP for the State