Detention Beyond 24 Hours Without Magistrate’s Sanction Is Not Just Illegal—It Is Unconstitutional: Bombay High Court Orders Immediate Release of Businessman Held in Family Dispute

“You Can’t Inform the Complainant and Call It Compliance”: Arrest Quashed for Violating Section 48 of BNSS and Article 22 of Constitution - In a stern condemnation of procedural violations and misuse of police power in the guise of criminal investigation, the Bombay High Court declaring the arrest of Hemang Jadavji Shah as illegal. The Court held that custodial detention beyond 24 hours without judicial sanction, and failure to inform a nominated person about the grounds of arrest, are grave breaches of Articles 21 and 22(2) of the Constitution of India, as well as Sections 58 and 48 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS).

The vacation bench of Justice Gauri Godse and Justice Somasekhar Sundaresan did not merely quash the arrest—they rebuked the "unholy haste" of the police in registering the FIR and launching coercive action over what appeared to be a familial civil dispute.

The Court directed Shah's immediate release, observing: “The act of the Immigration Officers to accost the petitioner or detain him on 17th May 2025 at 17:30 hours is the act of arrest… and therefore, the period of 24 hours as contemplated under Section 58 of BNSS and Article 22(2) of the Constitution shall begin at that point.”

Court Calls Out Violation of 24-Hour Rule: “Liberty Cannot Be Lost to Lethargy or Litigation Gamesmanship”

The petitioner was detained at Delhi Airport at 5:30 p.m. on 17 May 2025, and was not produced before the Magistrate until 10:45 p.m. on 18 May 2025. The investigating agency attempted to argue that the arrest formally occurred at 7:30 p.m. on 18 May, but their own affidavit disclosed that the custody had begun when the immigration department intercepted Shah.

The Court was unsparing in rejecting this: “Though the petitioner is shown to have been arrested in the arrest memo on 18th May 2025 at 19:30 hours, the material on record does not support the date and time as mentioned… The detention in custody without producing him before the nearest Magistrate within 24 hours is completely illegal.”

Referring to the Supreme Court’s rulings in Subhash Sharma and Vihaan Kumar, and the Bombay High Court’s own decision in Kaushik Thakkar, the Court held that the constitutional right under Article 22(2) is inviolable, and once breached, the arrest stands vitiated.

“Since there is a violation of Article 22 (2) of the Constitution of India, the petitioner’s fundamental right to liberty guaranteed under Article 21 has also been violated.”

“You Can’t Just Tell the Father—Especially When He’s the Complainant”: Section 48 of BNSS Violated

The police claimed they had complied with Section 48 of the BNSS, which mandates that a nominated person be informed of the arrest, by informing Shah’s father and his lawyer. The father, however, was the complainant in the case.

The Court termed this justification “shocking” and rejected it outright: “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.”

It concluded that “there is no material to show that the petitioner nominated either his father or his lawyer for communication as per law”, and therefore the statutory requirement was not met.

Familial Dispute Used as Criminal Leverage: “Unholy Haste and WhatsApp Evidence Suggest Custody Was a Coercive Tool”

Though the Court refrained from commenting on the trial’s merits, it took judicial notice of WhatsApp chats between family members and the midnight timing of the FIR to raise questions about the true purpose of the arrest.

“We did not find any such tearing hurry to initiate action to take the petitioner into custody with such zeal and enthusiasm,” the Court remarked, in reference to the FIR being filed at 2:14 a.m. and an LOC being issued the same day.

The chats produced by the petitioner suggested his custody was being used as a tool to pressure him into a financial settlement within the family, including instructions to his wife to carry a cheque book to EOW officers.

Court Issues Stern Mandate: Arrest Quashed, Release Ordered, But Trial to Proceed on Merits

The Court allowed the petition in full under prayer (b), declaring the arrest illegal and directing immediate release. However, it made clear that:

“Our observations and the conclusions drawn in this judgment are solely restricted to the illegal arrest of the petitioner and shall not affect the trial or the merits of the case.”

The CCTV footage and entry register of the EOW Unit were ordered to be preserved for two weeks, to allow the petitioner to pursue further legal remedies, including possible action for custodial misconduct.

This ruling is a landmark restatement of constitutional due process under the new BNSS, emphasizing that mere procedural compliance in form does not substitute for substantive adherence in law. The Bombay High Court has made it abundantly clear that arrest is not a tool for coercion, and detention must follow constitutional and statutory guardrails without exception.

“You may draft an arrest memo post-facto, but the clock of constitutional liberty starts ticking the moment a person is deprived of their freedom.”

Date of Decision: 30 May 2025