Bombay High Court
Bapu S/O Kishtayya Kummari vs The State Of Maharashtra Thr Pso Ps ... on 17 November, 2025
2025:BHC-NAG:12266
1
ba1188.2025.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
CRIMINAL APPLICATION (BA) NO.1188/2025
(Bapu S/o Kishtayya Kummari Vs. The State of Maharashtra, through Police Station Officer Police Station Bamani,
Tahsil Sironcha, District Gadchiroli)
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Office Notes, Office Memoranda of Coram, Court's or Judge's orders
appearances, Court's orders of directions
and Registrar's orders
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Mr. Madhur A. Deo, Advocate for the applicant.
Mr. A.M. Kadukar, A.P.P. for the non-applicant/State.
CORAM: MRS.VRUSHALI V. JOSHI, J.
DATE OF RESERVING THE ORDER: 12.11.2025.
DATE OF PRONOUNCING THE ORDER: 17.11.2025.
The applicant is arrested in Crime No.27/2024 for the offence
punishable under Sections 101(1) and 126(2) of the Bharatiya Nyaya
Sanhita, Section 3(2) of the Maharashtra Prevention and Eradication
of Human Sacrifice and other Inhuman, Evil and Aghori Practices and
Black Magic Act.
2. It is alleged that the applicant has committed the murder of one
Rukmabai alleging that she is doing some jadutona or black-magic.
The eye witness is there. Roshakka Alloori has seen the incident. She
has given the report and the crime is registered.
3. The applicant is coming before this Court on the ground that
the applicant was not produced before the Magistrate within 24 hours
from his arrest.
4. The learned Advocate for the applicant has stated that though it
is the settled principle of law and as per the provisions of Section 57
of the Code of Criminal Procedure and Article 22(2) of the
Constitution of India, it is mandatory to produce the person before
the Magistrate who is arrested and detained in police custody within
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24 hours of his arrest or detention and failure to produce an arrested
person before the Magistrate within 24 hours can make the detention
illegal. As per the case of the applicant, he was taken in custody
before 1.30 p.m. on 27.11.2024 but his movement was curtailed even
before 1.30 p.m. on 27.11.2024. The arrest is shown at 2 p.m. on
27.11.2024. The applicant was brought to the police station at 1.30
p.m. after conducting his medical examination. It is clear that the
applicant was in custody of the non-applicant before 1.30 p.m. His
arrest is shown at 2 p.m. He was produced before the Magistrate at
1.45 p.m. on 28.11.2024.
5. It is urged by the learned Advocate for the applicant that it is
well settled law that the time taken for medical examination of the
accused cannot be excluded for the purpose of computing 24 hours
i.e. the time limit within which the accused has to be produced before
the nearest Magistrate. It is, thus, clear that the applicant was
produced before the Magistrate after 24 hours which is in gross
violation of the constitutional and the statutory rights of the
applicant. The arrest of the applicant is thus illegal and the remand
orders passed by the Magistrate are illegal. The applicant, therefore,
deserves to be released on bail on this ground only.
6. The applicant has relied on the judgment of the Hon'ble Apex
Court in support of his claim that 24 hours period starts when the
police restrains the movement of the applicant/accused. He has relied
on the judgment in the case of Vihaan Kumar V/s. State of Haryana
and another reported in (2025) 5 SCC 799 wherein it is observed that
no person can be deprived of his liberty except in accordance with the
procedure established by law. The procedure established by law also
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includes what is provided in Article 22(1) and 22(2) of the
Constitution. Therefore, when a person is arrested without a warrant
and the grounds of arrest are not informed as soon as he is arrested,
or after the arrest, it will amount to violation of his fundamental
rights guaranteed under Article 21 as well in a given case if the
mandate of Article 22 is not followed while arresting a person it also
violates the fundamental rights guaranteed to him under Article 21
and his arrest will be rendered illegal. He has also relied on the
judgment of this Court in case of Devi Das Raghu Nanth Naik V/s.
State reported in 1987 SCC OnLine Bom 277. Reliance is also placed
on the judgment of the Hon'ble Apex Court in the case of Gautam
Navlakha V/s. National Investigation Agency reported in (2022) 13
SCC 542. In the recent judgment of the Hon'ble Apex Court in the
case of Arshnoor Kaur and another V/s. Union of India and others
reported in 2025 SCC Online 1668 the Hon'ble Apex Court has
observed that there is no waiver of fundamental rights.
"69. It is settled law that it is not open to the
Respondent-Union of India to contend that a person is not
entitled to enforce his/her Fundamental Rights, in
particular his/her Right to Equality, because he/she has
waived it. It is always open to an aggrieved person to
challenge any policy or notification or statutory provision
by filing a writ petition under Article 226 or under Article
32 on the grounds that it violates his/her Fundamental
Rights. ....."
7. He has also placed reliance on the judgment of the Hon'ble
Apex Court in Civil Appeal No.13806/2024 (Ram Autar Singh Yadav
V/s. The State of Uttar Pradesh and others) wherein in para 22
following observations are made.
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"22. ..... Law is well-settled that there is no loss of a
fundamental right for non-exercise thereof and also that
there cannot be waiver of a fundamental right. ....."
8. The applicant has submitted that in the case of The State of
Punjab V/s. Ajaib Singh and another reported in AIR 1953 SC 10, the
observations made about delay are in different aspect. Reliance is
placed on the judgment of the Hon'ble Apex Court in the case of
Commissioner of Central Excise, Bangalore V/s. Srikumar Agencies
and others reported in (2009) 1 SCC 469, in support of his argument
that each judgment does not create a statute.
"5. .....
15. ..... Courts should not place reliance on decisions
without discussing as to how the factual situation fits in
with the fact situation of the decision on which reliance is
placed. Observations of courts are neither to be read as
Euclid's theorems nor as provisions of the statute and that
too taken out of their context. These observations must be
read in the context in which they appear to have been
stated. Judgments of courts are not to be construed as
statutes. To interpret words, phrases and provisions of a
statute, it may become necessary for Judges to embark
into lengthy discussions but the discussion is meant to
explain and not to define. Judges interpret statutes, they
do not interpret judgments. They interpret words of
statutes; their words are not to be interpreted as statutes.
In London Graving Dock Co. Ltd. v. Horton (AC at p. 761)
Lord Macdermott observed: (All ER p. 14 C-D) ......"
9. He has also placed reliance on the judgment of the Hon'ble
Apex Court in the case of Career Institute Educational Society V/s.
Om Shree Thakurji Educational Society reported in 2023 SCC OnLine
SC 586 wherein observations about distinction between the obiter
dicta and ratio decidendi are made.
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"6. The distinction between obiter dicta and ratio
decidendi in a judgment, as a proposition of law, has been
examined by several judgments of this Court, but we
would like to refer to two, namely, State of Gujarat vs.
Utility Users' Welfare Association and Jayant Verma vs.
Union of India.
7. The first judgment in State of Gujarat (supra)
applies, what is called, "the inversion test" to identify what
is ratio decidendi in a judgment. To test whether a
particular proposition of law is to be treated as the ratio
decidendi of the case, the proposition is to be inversed, i.e.
to remove from the text of the judgment as if it did not
exist. If the conclusion of the case would still have been
the same even without examining the proposition, then it
cannot be regarded as the ratio decidendi of the case.
8. In Jayant Verma (supra), this Court has referred to
an earlier decision of this Court in Dalbir Singh vs. State of
Punjab to state that it is not the findings of material facts,
direct and inferential, but the statements of the principles
of law applicable to the legal problems disclosed by the
facts, which is the vital element in the decision and
operates as a precedent. Even the conclusion does not
operate as a precedent, albeit operates as res judicata.
Thus, it is not everything said by a Judge when giving
judgment that constitutes a precedent. The only thing in a
Judge's decision binding as a legal precedent is the
principle upon which the case is decided and, for this
reason, it is important to analyse a decision and isolate
from it the obiter dicta."
10. He has also relied on the judgment in the case of Saad and
another V/s. State of Maharashtra through its Chief Secretary and
others reported in 2025 SCC Online Bom. 2856 in which this Court
has granted bail considering the delay in producing the
applicant/accused to the nearest Magistrate beyond 24 hours
considering that there is violation of the constitutional rights of the
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petitioner under Article 21 of the Constitution of India and statutory
rights under Section 58 of the B.N.S.S. He has also relied on the
judgment of this Court in Writ Petition No.54/2025 (Hanumant
Jagganath Nazirkar V/s. The State of Maharashtra) wherein this
Court has observed about arrest and the pre-arrest medical
examination theory, the legal and constitutional rights of arrested
person of producing before the Magistrate within 24 hours cannot be
violated, such action on the part of the Police Officer is likely to lead
unscrupulous tendencies where after a person arrested he is not
produced before the Magistrate till hospital authorities declare him
fit. This will give a wrong signal to the society and to the public at
large. The pre-arrest medical examination theory can be a fraught
with mischief and highly deplorable.
"20. "Arrest" consists in the actual touching of a person's
body with a view to his restraint. The words may, however,
amount to an "arrest" if they are calculated to bring to a
person's notice that he is under compulsion and he,
thereafter, submits to such compulsion. An authority is said
to arrest another person if it prevents the latter from freely
making their movements and moving according to their
will. To constitute an arrest, it is necessary that the officers
should assume custody and control over the person, either
by force or with his consent. "Arrest" is when one is taken
and restrained from their liberty. Even if a person is
touched with a view to detaining, it would amount to an
arrest."
11. Reliance is also placed on the judgment of this Court in the
case of Ugochukwu Soloman Ubabuko V/s. Union of India and
another reported in 2021 1 SCC Online Bom 3572.
12. Since one year the accused is in jail. Though this is his first bail
application before this Court, he has applied previously before the
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trial Court for bail. At that time, he has not raised this issue of
infringement of his fundamental right that he was not produced
before the Magistrate within 24 hours at the time of his remand. It is
at a much belated stage that he has raised this issue taking an
exception to the fact of late production from his arrest.
13. In this case, from perusal of station diary entry it reveals that
the accused was taken into custody at about 1.30 p.m. thereafter was
send for medical check up and on next day he was produced before
the Magistrate at 1.45 p.m. On arrest form arrest is shown at 2 p.m.
and thereafter Magistrate has observed in order that the accused is
produced before him within 24 hours and remanded the accused to
police custody.
14. The question arose whether he was produced within 24 hours.
According to the applicant, arrest time mentioned in arrest form is not
the correct time. It is actual time of arrest. However, time starts from
the period when he was taken in custody. The applicant was taken in
custody and when his movement was restrained is the time to be
considered for computing 24 hours. On perusal of station diary entry
it is seen that specific period is not mentioned but after his arrest he
was taken for medical examination, therefore, there is delay at the
most of 15 minutes.
15. The next question arises as to what is the effect of
non-production of the applicant before the Magistrate after his arrest
within 24 hours.
16. The learned Advocate for the applicant placed reliance on the
judgment in such cases where arrested accused were granted relief.
Arrest of the accused rendered completely illegal as a result of
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violation of Clause (2) of Article 22 of the Constitution. Therefore, his
arrest get vitiated.
17. It appears from the record that after one year the applicant has
raised this issue. It was not raised before the Sessions Court. He
approached this Court at a belated stage. It is observed by this Court
in case of Karan Ratan Rokade and others V/s. State of Maharashtra
and another reported in 2025 SCC OnLine 1535 as follows:-
"18. ..... This Court time and again has held that delay
defeats equity. Delay or latches is one of the factors which
should be born in mind by the High Court while exercising
discretionary powers under Article 226 of the Constitution
of India. In a given case, the High Court may refuse to
invoke its extraordinary powers if laxity on the part of the
applicant to assert his right has allowed the cause of action
to drift away and attempts are made subsequently to
rekindle the lapsed cause of action."
18. The learned Advocate for the applicant has argued that there is
no limitation in case of bail. Above observations are made in case of a
petition under writ jurisdiction, therefore, it is not proper to apply the
same in this application for bail. He has relied on the judgment in
support of his argument that every judgment does not create a
statute. In the present case there is no justification as to why this
issue was never raised for considerable period between 27.11.2024 up
to 14.10.2025 when this application is filed. The applicant was
represented through an Advocate right from his remand.
19. It needs to be verified in case in hand whether the applicant
was produced before the Magistrate after 24 hours. The question is
how to count the said period. On perusal of station diary it is seen
that at about 1.30 p.m. the applicant was taken in custody and sent
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for medical examination. Memorandum panchanama was drawn at
5.30 p.m. and on next day at 11.30 he was taken from police station
for being produced before the Magistrate. Distance from the police
station to Court is about 20 to 22 kilometers. It took half an hour to
reach the Court and he was produced before the Magistrate at 1.45
p.m. as Court was busy. If we consider the period of his arrest from
taking in custody there is hardly 15 minutes delay. A short delay in
producing the accused is a procedural issue which is unlikely to lead
the whole case being dismissed. In the case of Ajaib Singh (supra) it
is observed by the Hon'ble Supreme Court that "arrest" means taking
a person into custody under the authority of law, and the moment a
person's liberty is restrained by the police, he is deemed to be in
custody, even if the form arrest is shown later. The Court emphasized
that constitutional and procedural safeguards under Article 22(2) of
the Constitution and Section 57 CrPC being from the time of actual
apprehension. However, in serious offences like murder under
Section 302 IPC, a minor delay of 15-20 minutes in producing the
accused before a Magistrate would not automatically render the
detention illegal, provided it was not deliberate or mala fide. The
Courts must balance personal liberty with societal interest, especially
where direct and credible evidence links the accused to a grave
offence."
20. In this case there is no deliberate delay. On the contrary, the
applicant was taken to Magistrate within 24 hours i.e. at 12 noon to
be produced before the Magistrate at 1.45 p.m. Thus there is delay of
hardly about 15 to 20 minutes which is not deliberate. The argument
is that it is not applicable to the accused. Observations are made in
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case of habeas corpus and effect is totally different. The law is settled
by the Hon'ble Apex Court. After considering the gravity of offence,
especially when there is an eye witness and this issue is raised at a
belated stage and when there is a doubt about whether he was
produced beyond period of 24 hours of his arrest, no case is made out
to grant bail to the applicant on this ground. The application is
rejected.
(MRS.VRUSHALI V.JOSHI, J.)
Tambaskar.
Signed by: MR. N.V. TAMBASKAR
Designation: PS To Honourable Judge
Date: 18/11/2025 13:27:42
