S.58 BNSS | Bail Must Be Granted To Accused If Not Produced Before Magistrate Within 24 Hrs Of Arrest: Orissa High Court

The Orissa High Court has reiterated that failure on the part of police/investigation agency to produce an accused before Magistrate within 24 hours of arrest shall vitiate the arrest itself, as it violates the safeguards enshrined under Article 22(2) of the Constitution and Section 58 of the Bharatiya Nagarik Suraksha Sanhita (BNSS).

While enlarging two accused persons on bail, the Bench of Justice Gourishankar Satapathy also held that such omission enures to the benefit of the accused, who must be released forthwith on bail. In the words of the Court –

“For the purpose of criminal case, the Petitioners being not produced beyond 24 hours, their detention can be considered illegal for violation of provision of Article 22(2) of the Constitution of India r/w Sec. 58 of BNSS and, therefore, the arrest of the Petitioners are violative of the Constitutional mandate.”

To put briefly, the petitioners were accused of spraying toxic materials and taking away certain ornaments from two lady passengers of an auto-rickshaw upon they lost consciousness. An FIR was lodged against the duo for alleged commission of offences under Sections 317(2) (receiving/retaining stolen property), 309(6) (causing hurt during robbery), 111 (organised crime) and 123 (causing hurt by means of poisons etc to commit offence) of the Bharatiya Nyaya Sanhita (BNS).

Advocate Sailaza Nandan Das appearing for one of the petitioners vehemently sought bail on the ground that the accused-petitioners were produced before the Magistrate after the highest statutory permissible limit of police detention period, i.e. 24 hours elapsed, which according to him violated the mandates under Sections 58 and 187 of the BNSS. Advocate SK Bhanjadeo appearing for the second petitioner also adopted the same line of arguments.

Justice Satapathy perused the affidavit filed by the IIC, Purushottampur police station from which it appeared that the petitioners were taken into custody by Buguda Police at 05:00 AM on 16.01.2025, but they were produced in the Court on 17.01.2025 at about 08:00 AM by Purushottampur Police, even though they were taken into custody by Purushottampur Police on 17.01.2025 at about 00:20 AM.

“One of the important aspects as emerged in this case is that the copy of arrest memo of the Petitioner Jilapi @ Basanta Sahu produced in this case containing the signature of IIC does not contain the time of arrest as such place in the column in the printed form meant for time of arrest remains blank, whereas the time of the arrest in the printed arrest memo of the co accused Jaga @ Jaganath Mohapatra, has been filled up in hand by writing 08:00am in pen. These documents go a long way to say about the illegal detention of the Petitioners in custody beyond 24 hours,” the Judge further added.

The Court also underlined that in case of need for custodial detention, the police should have obtained due authorization from the concerned Magistrate.

“Personal liberty of a person is not only sacrosanct, but also his fundamental right and such personal liberty of a person cannot be curtailed except according to the procedure established by law,” it observed.

Reliance was placed upon a recent Supreme Court ruling in Directorate of Enforcement v. Subhash Sharma, 2025 LiveLaw (SC) 137 which held that once a Court finds the fundamental rights of the accused under Articles 21 and 22 of the Constitution having 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.

Resultantly, the Court was of the opinion that since the arrest and detention of the petitioners were done in violation of their fundamental rights, their further detention in custody is not warranted. Thus, it allowed the bail petitions.

Case Title: Jati @ Susanta Rout & Anr. v. State of Odisha

Case No: BLAPL Nos. 5527 & 6993 of 2025

Date of Judgment: August 06, 2025

Counsel for the Petitioners: Mr. Sailaza Nandan Das, Advocate; Mr. Sanjib Kumar Bhanjadeo, Advocate

Counsel for the State: Mr. M.K. Mohanty, Addl. Public Prosecutor

Citation: 2025 LiveLaw (Ori) 103

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