Detention Beyond 24 Hours Without Magistrate’s Sanction Vitiates Arrest: Orissa High Court Grants Bail in POCSO Case Citing Violation of Fundamental Rights

“Personal Liberty Is a Priceless Treasure… It Cannot Be Withheld Without Recourse to Law” – In a landmark decision with constitutional overtones, the Orissa High Court allowed bail to a man accused of rape and penetrative sexual assault under the POCSO Act, holding that his detention beyond 24 hours without judicial authorization amounted to a gross violation of Article 22(2) of the Constitution.

Citing binding constitutional and statutory mandates, the Court ruled that the arrest and subsequent police custody were vitiated due to the illegal detention of the accused without being produced before a magistrate within 24 hours, as required under Section 58 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS).

“This Court… believes that the personal liberty of a person is not only a priceless treasure but also a fundamental right,” observed Justice Satapathy, holding that detaining an accused in custody without judicial approval cannot be condoned under any circumstance.

Custody Since 18th August Without Magistrate’s Order: Court Terms Police Action Unlawful

The case arose from Chauliaganj PS Case No. 436 of 2025, relating to alleged offences under Sections 64(1)/351(3) of the Bharatiya Nyaya Sanhita, 2023 (BNS) read with Section 4 of the POCSO Act. The prosecution claimed that the petitioner, Subash Nayak, had committed rape and penetrative sexual assault. However, the defence focused on a critical procedural lapse by the Investigating Officer (IO): the failure to produce the accused before a magistrate within 24 hours of custody.

The Court recounted the timeline of events in detail. The petitioner was medically examined on 18th August 2025, clearly indicating he was in police custody on that date. However, the notice under Section 179 of the BNSS was only issued on 19th August 2025, calling him to appear on 20th August. The IO’s own records, including medical requisition and doctor’s report, revealed the petitioner’s custody since 18th August, but he was produced in court only on 20th August.

This, the Court held, “unambiguously goes to show that the petitioner was with the IO since 18.08.2025, but he was only forwarded to the Court on 20.08.2025,” and concluded that the detention was clearly beyond the 24-hour constitutional and statutory limit.

“Fundamental Right Under Article 22(2) Was Violated” – Court Applies Supreme Court Precedent

Relying on Article 22(2) of the Constitution, which mandates that no person shall be detained beyond 24 hours without a magistrate’s order, the Court made clear that “once a thing has been prescribed by law to be done in a particular way, it must be done in that way and not in any other way.”

The High Court placed strong reliance on the Supreme Court’s recent decision in Director of Enforcement v. Subash Sharma, 2025 SCC OnLine SC 240, where the apex court held:

“Once a Court, while dealing with a bail application, finds that the fundamental rights of the accused under Articles 21 and 22 of the Constitution of India have been violated while arresting the accused or after arresting him, it is the duty of the Court dealing with the bail application to release the accused on bail. The reason is that the arrest in such cases stands vitiated.”

Citing this ratio, the Orissa High Court observed: “A conspectus of materials placed on record clearly demonstrates a case in which the accused-petitioner has been detained in custody beyond twenty-four hours but without any authority… which enures to the benefit of the petitioner for his release on bail.”

BNSS Section 58 Is Not Mere Procedure, It Is Constitutional Compliance

The Court underscored that Section 58 of the BNSS, which mirrors the safeguards under Article 22(2), is not a technicality, but a core constitutional obligation binding upon the police and investigative agencies. The judge highlighted that power to arrest is not power to detain arbitrarily and that procedural safeguards are an inseparable part of personal liberty.

“It is also not in dispute that the power to arrest a person is one thing and arresting such person depriving his personal liberty is another thing,” the Court clarified.

In a strong message to law enforcement, Justice Satapathy stressed: “The right of the accused flows from Article 22(2) of the Constitution of India… and cannot be withheld without recourse to the law.”

Bail Granted Solely on Ground of Illegal Detention

Having established the violation of the constitutional mandate, the Court allowed the bail application under Section 483 of the BNSS, solely on the ground of illegal detention.

“In view of the above facts… this Court is of the considered view that the petitioner’s fundamental right being violated, he is entitled to be released on bail,” ruled the Court.

Accordingly, the petitioner was directed to be released on bail on furnishing a bond of ₹50,000 with one solvent surety, to the satisfaction of the trial court.

The bail application was disposed of with the caution that the trial court may impose any further terms and conditions as deemed fit.

A Constitutional Reminder: Liberty Cannot Be a Casualty of Procedure

This judgment is a significant reaffirmation of the constitutional safeguards enshrined under Articles 21 and 22 of the Constitution. It reinforces the position that even in serious criminal cases, including those under the POCSO Act, procedural violations that impinge on fundamental rights cannot be overlooked.

By holding that illegal custody alone is sufficient to grant bail, the Orissa High Court joins a growing jurisprudential trend that ensures state power does not trample individual liberty, even in cases with grave accusations.

Date of Decision: 23 December 2025