[S.187 BNSS] Status Of Hospitalised Arrestee Cannot Remain Unknown, Magistrate Must Verify Through Visit Or VC: Gauhati High Court

The Gauhati High Court, in an order dated June 2, emphasized that in cases where an arrestee is not produced before the magistrate within 24 hours of arrest due to medical urgency, the magistrate must verify the status of such arrestee. The court remarked that even in such cases the magistrate has to, either through a personal visit or video conferencing, verify the status of the arrestee by passing a remand order to judicial or police custody. 

The bench of Justice Mridul Kumar Kalita held, "Section 187 of BNSS categorically states that subject to condition of bail, the Magistrate may authorize his detention either in judicial or in police custody. Unless, such an order is passed, the initial arrest of the petitioner beyond the period of 24 hours from the time of his arrest, would become illegal". 

The bench further remarked, "in the instant case where the arrestee is injured and requires urgent medical care so that instead of producing such an arrestee before the Magistrate, he might have to be rushed to the hospital for providing urgent medical treatment. However, in such cases also the Magistrate may ascertain the condition of the arrestee through video conferencing or personally visiting such arrestee whose arrest has been reported to him by the Police". 

The case stemmed from an FIR filed by one Dipti Timung, who claimed that when she was withdrawing money from the ATM, two persons swapped her ATM card and fraudulently withdrew INR 40,000 from her account. When the police arrested the accused, he tried to escape which resulted in him sustaining injuries after falling from a hillside. Thus, he was admitted to Gauhati Medical College and Hospital (GMCH). The investigating officer, therefore, forwarded the report to the magistrate and sought permission to produce the accused through video conferencing. 

However, the magistrate neither approved production via video conferencing nor personally visited the hospital to verify the accused's condition. The magistrate allowed the production of the accused after his release from the hospital. The magistrate also did not pass any formal order regarding the status of the remand of the accused, as to whether he was remanded to police custody or judicial custody. 

The petitioner, represented by Advocate S Mitra, contended that the arrest had become illegal as the accused was not produced before the magistrate within 24 hours, violating the requirement under Article 22(2) of the Constitution and Section 187(2) of the BNSS, 2023. It was argued that the absence of a remand order beyond a prescribed period rendered the continued custody unlawful. 

The State, represented by Additional Public Prosecutor RJ Baruah, asserted that the delay was justified as the accused was injured and needed immediate medical attention. 

The court noted that the investigation had progressed, while the accused was hospitalized for 45 days without any remand or bail order. The court opined that the magistrate had erred in not passing any interim order regarding the production of the accused. The bench, thus, held that theorder passed by the magistrate for the production of the accused after his release from the hospital is not valid. 

The court remarked, "Such an order without clarifying the status of the petitioner, as to whether he is in custody or a free person, when the arrest of the petitioner was reported to the said Magistrate stating the reasons for not producing him before such Magistrate, is in violation of the provisions contained in Section 57 of the BNSS as well as Article 22(2) of the Constitution of India". 

While emphasizing the importance of such medical exceptions, the bench highlighted that the magistrate still has to verify the status of the arrestee, either through a personal visit or through video conferencing. Thereafter, the magistrate should pass a formal order of remand to judicial or police custody, even if the arrestee continues to remain in hospital. 

Accordingly, the court granted bail to the accused noting that, "In absence of any order of remand beyond the period of 24 hours from the time of his arrest, his arrest gets vitiated on completion of 24 hours in custody". 

For Petitioner: Advocates S Mitra, R Rameez and AK Boro

For Respondent: Additional Public Prosecutor RJ Baruah

Case Title: Bittu Kumar v State of Assam (Bail Appln./1662/2025)

Click here to read the order