BOMBAY| 3RD JUNE 2025
KEY HIGHLIGHTS
Bombay High Court rules the detention of Hemang Jadavji Shah by Immigration Officers amounted to an illegal arrest.
Court held that failure to produce him before a Magistrate within 24 hours violates Article 22(2) of the Constitution and Section 58 of the Bharatiya Nagarik Suraksha Sanhita (BNSS).
Petitioner was ultimately released by order of the Division Bench.
BENCH & LEGAL REPRESENTATION
Bench: Justice Gauri Godse and Justice Somasekhar Sundaresan
Petitioner’s Counsel: Senior Advocate Ravi Prakash with Advocates Munaf Virjee, Aditya Dewan, Vikram Sutaria, Debopriyo Moulik, Zain Shroff, Sagar Shetty, Hrituraj Singh Rajput (AMK Law)
Respondents: APP S. V. Gavand, Advocate Anand Bagade
Intervener: Senior Advocate Amit Desai with Nikhil S. Kamble and Archishmati Chandramore
FACTUAL BACKGROUND
The case arose out of a familial dispute involving the petitioner, his brother (the complainant), and their father. The FIR stemmed from disagreements over a Memorandum of Understanding (MoU) and the distribution of money under its terms.
Following the oral complaint, a Look Out Circular (LOC) was issued at the behest of the Deputy Commissioner of Police. The matter was transferred to the Economic Offences Wing (EOW).
While attempting to travel from Delhi to Muscat, the petitioner was apprehended by immigration authorities and subsequently handed over to the EOW. He was later remanded to police custody.
The FIR was registered under Sections 316(5) and 318(4) of the Bharatiya Nyaya Sanhita (BNS), 2023.
HIGH COURT’S FINDINGS
The Bombay High Court categorically ruled the arrest as illegal due to violation of constitutional and procedural safeguards.
“…we are of the view that there is breach of requirements under section 48 of the BNSS and the detention of the petitioner in custody without producing him before the nearest Magistrate within stipulated time of 24 hours is completely illegal and it infringes the fundamental rights under Article 22(2) of the Constitution of India. Therefore, the petitioner’s arrest gets vitiated on completing 24 hours in custody from 1730 hours on 17th May 2025. 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.”
The Bench determined that the petitioner was detained on May 17, 2025, at 17:30 hours by immigration officers. However, he was only produced before a Magistrate at 22:45 hours on May 18, which exceeded the 24-hour limit under Section 58 of the BNSS and Article 22(2) of the Constitution.
“Hence, there is a violation of the petitioner’s right guaranteed under Article 21 of the Constitution of India for noncompliance with Section 58 of the BNSS and Article 22(2) of the Constitution of India.”
GROUNDS OF ARREST NOT SUPPLIED
The Court also noted that grounds of arrest were not supplied to the petitioner, as required under Section 48 of the BNSS, further rendering the arrest illegal.
WhatsApp Chats and Malicious Intent
Referring to WhatsApp messages exchanged among family members, the Court observed:
The intention behind the detention appeared to be “to recover the amount that was sought to be settled in the mediation between the family members.”
This further supported the argument of mala fide intent behind the arrest and detention.
COURT’S ORDER
The High Court ordered the immediate release of the petitioner, declaring the arrest and custody illegal due to multiple legal violations.
