High Court

Legal Reasoning

10 Cri. WP NO. 907 OF 2025IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADCRIMINAL WRIT PETITION NO. 907 OF 2025Santosh Baburao JadhavVERSUSThe State Of Maharashtra and Others…•Mr. Y. S. Choudhari, Advocate for the Petitioner•Ms. P. R. Bharaswadkar, APP for Respondent Nos. 1 to 3 – State…CORAM :SMT. VIBHA KANKANWADI AND HITEN S. VENEGAVKAR, JJ.DATED :SEPTEMBER 22, 2025ORDER : ( PER HITEN S. VENEGAVKAR, J.)1.The petitioner before this Court has filed the present CriminalWrit Petition seeking declaration that his arrest in connection withCrime No. 339 of 2024, registered with Mirajgaon Police Station, Tal.Karjat, Dist. Ahmednagar, is illegal and contrary to the provisions oflaw. The grievance urged is that the mandatory safeguards underArticle 22(1) of the Constitution of India and Section 47 and 48 ofBhartiya Nagarik Suraksha Sanhita, 2023 (in short, ‘BNSS’), were notcomplied with by the investigating agency at the time of effecting hisarrest. The petitioner, therefore, seeks appropriate directions fromthis Court to declare the arrest null and void and to set aside allconsequential proceedings. Jhs/1/10 10 Cri. WP NO. 907 OF 20252.The learned Assistant Public Prosecutor, appearing for theState, has opposed the petition and filed a detailed reply, placingbefore the Court a comprehensive list of events pertaining to thepetitioner's arrest and subsequent judicial custody. It is submitted thatthe petitioner was already under lawful arrest and in custody inconnection with another crime bearing No. 805 of 2024, registered atKarjat Police Station. During the subsistence of that custody, anotheroffense being Crime No. 339 of 2024, came to be registered withMirajgaon Police Station. 3.Since the petitioner was already in judicial custody inconnection with the earlier offence, the police, following dueprocedure of law, moved an application before the learned AdditionalSessions Judge seeking a transfer warrant to secure the petitioner'spresence in the present case. The application was made on01.01.2025, and another communication to that effect was made on04.01.2025, which was duly forwarded by the learned AdditionalSessions Judge to the Judicial Magistrate First Class on 06.01.2025.Upon consideration of the said application, the Judicial MagistrateFirst Class, by order dated 14.01.2025, issued the transfer warrant,and the same was executed on the very day upon the petitioner. Thepetitioner thus came to be arrested in Crime No. 339 of 2024, not byJhs/2/10 10 Cri. WP NO. 907 OF 2025an independent act of arrest, but by virtue of a judicially sanctionedtransfer warrant while he was already under detention in anothercase. 4.It is further submitted by the learned Prosecutor that at thetime of execution of the transfer warrant and arrest of the petitioner,all procedural safeguards, as contemplated by the HonorableSupreme Court and statutory provisions, were scrupulously followed.The petitioner was informed of the reasons for his arrest and thegrounds on which the police sought to take him into custody in thepresent case. 5.The Human Rights Arrest Register maintained at the concernedpolice station was produced before this Court for perusal, whichrecords the petitioner's signature acknowledging receipt of the noticeand communication of the grounds of arrest. The police alsoinformed one of the close relatives of the petitioner regarding hisarrest and the reasons thereof, in consonance with the guidelines laiddown in D.K. Basu Vs. State of West Bengal; (1997) 1 SCC 416. 6.The learned Prosecutor has further pointed out that, before thepetitioner was taken into custody, notices under Section 47 and 48 ofthe BNSS were duly served, setting out in detail the grounds ofJhs/3/10 10 Cri. WP NO. 907 OF 2025arrest. The said notice enumerates its specific reasons, namely:i.the petitioner's alleged involvement in the abatement ofsuicide of a minor girl;ii.the possibility of creating terror and harassment amonglocal residents;iii.apprehension that the petitioner may influence orpressurize witnesses;iv.the petitioner's non-cooperation with the investigation;v.the necessity of obtaining his fingerprints andconducting further forensic analysis;vi.the pendency of in-depth investigation into the offense;vii.the possibility of his absconding if not detained; andviii.the need to restrain his continued criminal activities. 7.Although the notice inadvertently mentions Section 35 of theBNS due to a typographical error, the same was explained to thepetitioner and his signature was obtained on the notice under Section48 of the BNSS. The learned Prosecutor submits that such clericalerror does not affect the substantive legality of the procedurefollowed. 8.The record further shows that, after his arrest pursuant to thetransfer warrant, the petitioner was produced before the CompetentCourt on 15.01.2025. The Court, upon being satisfied with thegrounds of arrest and the necessity of custodial interrogation, grantedJhs/4/10 10 Cri. WP NO. 907 OF 2025police custody remand. Thereafter, the petitioner was remanded tojudicial custody from time to time by Competent Courts. The charge-sheet in the present case came to be filed on 27.02.2025, and atevery stage of remand and bail proceedings, the petitioner wasrepresented by counsel. 9.It is significant to note that on none of these occasions did thepetitioner raise any grievance or allegation regarding illegal arrest,non-communication of arrest grounds, or violation of hisconstitutional rights. Even in the bail application filed by thepetitioner after submission of the charge-sheet, no such ground wasraised. The learned Prosecutor, therefore, contends that, having failedto object before the Competent Courts earlier and having participatedin the proceedings without demur, the petitioner cannot now bepermitted to turn around and challenge the legality of his arrest atthis belated stage. It is submitted that the custody of the petitioner,having been repeatedly and validly regularized by judicial orders, anytechnical irregularity, if at all in initial stage of the arrest, standscured.10.We have carefully heard the learned counsel appearing for thepetitioner as well as the learned Assistant Public Prosecutor for theState. We have also examined the documents placed on record,Jhs/5/10 10 Cri. WP NO. 907 OF 2025including the FIR, transfer warrant, arrest memo and notices issuedunder Section 47 and 48 of the BNSS.11.The petitioner's counsel has relied upon the decision of theHon’ble Supreme Court in Vihaan Kumar Vs. State of Haryana andAnother; (2025) SCC Online SC 269, to contend that communicationof the grounds of arrest is a fundamental constitutional right underArticle 22(1) and a statutory right under Section 47 of the BNSS.He has submitted that non-compliance with this requirement rendersthe arrest illegal.12.On the other hand, the learned Prosecutor has relied upon thejudgment of the Hon’ble Supreme Court in State of Karnataka Vs. SriDarshan and Others (Criminal Appeal Nos. 3528-3534 of 2025),decided on 14.08.2025, to submit that a person who has beenregularly produced before Competent Court and who has neverraised the plea of non-communication of arrest grounds at any earlierstage cannot be allowed to challenge the arrest later on unlessprejudice is specifically shown.13.The question that arises for our consideration is whether, in thefacts and circumstances of the present case, the arrest of thepetitioner in Crime No. 339 of 2024 can be termed as illegal onaccount of alleged non-communication of the grounds of arrest.Jhs/6/10 10 Cri. WP NO. 907 OF 202514.There can be no doubt that the right of an arrested person tobe informed of the reasons for his arrest is both a constitutional andstatutory safeguard. Article 22(1) of the Constitution mandates thatno person who is arrested shall be detained without being informed,as soon as may be, of the grounds of such arrest. Section 47(1) ofBNSS reiterates this mandate by requiring every police officer makingan arrest to inform the person arrested of the full particulars of theoffense for which he is arrested or the other grounds for such arrest.Section 48 further obliges the police to notify a relative or friend ofthe arrested person about the arrest and the place of detention. Thesesafeguards are intended to ensure transparency, prevent arbitraryexercise of power, and uphold the dignity and liberty of theindividual. 15.However, as observed by the Honorable Supreme Court inVihaan Kumar (Supra), a mere technical lapse or omission informality will not automatically vitiate an arrest unless it is shownthat the omission has resulted in prejudice to the accused or hasrendered the arrest oppressive or mala fide. 16.In the present case, the record discloses that the petitioner'sarrest was not a fresh or sudden act of taking him into custody, butrather a judicially sanctioned transfer from one case to another,Jhs/7/10 10 Cri. WP NO. 907 OF 2025though the mechanism of a transfer warrant duly issued by acompetent Magistrate. The entire process was carried out under thesupervision of the Court, thereby ensuring judicial oversight. 17.The petitioner's signature appears on the arrest register and theHuman Rights Arrest Register, and the notices under Sections 47 and48 of BNSS bear all the necessary information. The contemporaneousrecord produced by the prosecution substantiates the fact that boththe petitioner and his close relatives were informed of the arrest andits reasons. The petitioner was thereafter produced before theMagistrate and subsequently before the Sessions Court, where hisremand was extended upon judicial scrutiny. 18.At no stage did the petitioner allege that he was unaware ofthe reasons for his arrest. In fact, even after filing of the charge-sheetand during the pendency of his bail application, he did not raise anysuch grievance. It is only after a considerable lapse of time and afterhis custody has been duly regularized by a series of judicial orders,that he has approached this Court by way of the present petition. 19.In our view, such belated invocation of the writ jurisdictioncannot be permitted, particularly when the record reveals substantialcompliance with the procedural requirements. The petitioner has notdemonstrated any prejudice caused to him by the alleged irregularityJhs/8/10 10 Cri. WP NO. 907 OF 2025in mentioning the wrong Sections in the notice. The error appears tobe purely clerical in nature and does not go to the root of the arrest.20. The purpose of Sections 47 and 48 is to ensure that personarrested understands the reason for his arrest and that his family orfriend is notified of the same. The petitioner's acknowledgment of thereceipt of notice, his production before the Court and the repeatedjudicial remand orders are clear indications that these requirementswere fulfilled in substance. 21.We are guided by the Hon'ble Supreme Court’s caution in Stateof Karnataka vs. Sri Darshan (Supra), wherein the Hon’ble SupremeCourt underscores that the Courts thus avoid trenching upon themerits of a case, they must keep the gravity of the accusation andsocietal interest in view and must not permit technical objections toeclipse the administration of criminal justice, the Supreme Court hascategorically held that when an accused person has beencontinuously under judicial custody pursuant to valid remand ordersand has not raised any objection regarding the legality of his arrest atthe earliest opportunity, the Court should be slow to entertain suchchallenges at a later stage, especially when no demonstrableprejudice has been shown. We find this reasoning fully applicable tothe facts of the present case. Jhs/9/10 10 Cri. WP NO. 907 OF 202522.In light of the above discussion, we are of the consideredopinion that the arrest of the petitioner in Crime No. 339 of 2024 wascarried out in due compliance with the law and cannot be said to beillegal or arbitrary. The petitioner has failed to show any violation ofhis constitutional rights or any prejudice suffered by him. 23.The judicial orders passed from time to time granting remandhave regularized his custody, and the same has never been challengedby the petitioner on the ground that the Courts have failed toconsider the ground of his illegal detention. No fault can be foundwith the actions of the investigating agency. The petition, therefore isdevoid of substance and is liable to be dismissed.24.The Criminal Writ Petition No. 907 of 2025 stands dismissed. 25.There shall be no order as to costs.( HITEN S. VENEGAVKAR, J. ) ( SMT. VIBHA KANKANWADI, J. )Jhs/10/10