Bombay High Court
Dhanshala Prakash Vishwakarma vs The State Of Maharashtra And Ors on 7 October, 2025
Author: Sarang V. Kotwal
Bench: Sarang V. Kotwal
2025:BHC-AS:43397-DB
WAKLE
MANOJ
JANARDHAN
Manoj 6-WP-4539-2025.doc
Digitally signed by
WAKLE MANOJ
JANARDHAN
Date: 2025.10.08
18:58:21 +0530 IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL WRIT PETITION NO.4539 OF 2025
Dhanshala Prakash Vishwakarma ...Petitioner
Vs.
The State of Maharashtra & Ors. ...Respondents
------
Mr. Shirish Desai a/w Mr. Harsh Agarwal for the Petitioner.
Ms. Dhanalaxmi Krishnaiyar, APP for the Respondent/State.
Mr. Vijaykumar Wagh, API, Sakinaka Police Station, Mumbai present.
------
CORAM : SARANG V. KOTWAL &
SHYAM C. CHANDAK, JJ.
DATED : 7th OCTOBER, 2025
P.C. :-
1) The Petition is filed for declaration that the arrest of the
Petitioner's husband (hereinafter referred to as the detenu) as illegal and in
gross violation of Article 22 of the Constitution of India.
2) Heard Mr. Desai, learned Counsel for the Petitioner and Ms.
Krishnaiyar, learned APP for the Respondent/State.
3) The subject matter arises from the F.I.R. registered vide C.R.
No.288 of 2025 registered at Sakinaka Police Station on 20th April, 2025
under Sections 64(2)(k) and 351(2) of Bharatiya Nyaya Sanhita, 2023. In
this case the investigation is over and the charge-sheet is filed. The case is
pending before the Additional Sessions Judge, Dindoshi, Mumbai. At this
belated stage, this Application is filed mainly with the contention that the
detenu was produced beyond the stipulated period of twenty-four hours
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before the learned Magistrate for his first remand. Article 22 (2)of the
Constitution of India laid down thus:-
"Every person who is arrested and detained in custody shall be
produced before the nearest magistrate within a period of twenty-
four hours of such arrest excluding the time necessary for the
journey from the place of arrest to the court of the magistrate and
no such person shall be detained in custody beyond the said
period without the authority of a magistrate."
Section 58 of BNSS reads thus:-
"Person arrested not to be detained more than twenty-four hours.-
No police officer shall detain in custody a person arrested without
warrant for a longer period than under all the circumstances of
the case is reasonable, and such period shall not, in the absence of
a special order of a Magistrate under section 187, exceed twenty-
four hours exclusive of the time necessary for the journey from
the place of arrest to the Magistrate's Court, whether having
jurisdiction or not."
4) The main contention of the learned Counsel for the Petitioner
is that there is violation of these important provisions and therefore his
arrest was illegal.
5) Before addressing the issue whether he was produced beyond
twenty-four hours, it is necessary to refer to the allegations in brief. The
F.I.R. is lodged by the first informant the victim herself. She was deaf and
dumb. She could communicate only in sign language. The F.I.R. mentions
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that she was working at one society at Sakinaka, Mumbai in the department
of housekeeping. She had got that job with the help of her sister-in-law. On
19th April, 2025 both of them had gone to that society for their work. The
detenu was the Supervisor in that society. After 1:00 p.m. the informant had
lunch. The detenu told her to do the cleaning work in the parking area.
When she went there the detenu followed her. He took her to a secluded
spot and committed rape on her. She tried to tell her sister-in-law about the
incident but her sister-in-law could not understand what she was trying to
tell. Both of them returned home. At about 6:30 p.m. her husband returned
home. She communicated with him and told him the entire incident. Her
husband asked her sister-in-law to question the detenu. She called him but
he did not respond. The informant's husband then contacted the person
who had given them job. He advised them to approach the police station.
Therefore, the informant went to Sakinaka Police Station and lodged the
F.I.R. The investigation was carried out and the charge-sheet was filed.
6) The allegations in the F.I.R. are referred to in this Order to
place the background of this case on record. We are not commenting on the
merits and quality of material collected during the investigation. The short
point which we are required to consider in this Petition is whether there
was violation of Article 22 (2) of the Constitution of India and Section 58 of
the BNSS. We have to consider whether the detenu was produced before
the learned Magistrate beyond 24 hours from his arrest.
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7) Some facts are reflected in the Affidavit-in-Reply. The proforma
of the F.I.R. shows that the F.I.R. was registered at 7:13 a.m. on 20 th April,
2025. The information was received at the police station on 20 th April, 2025
at 12:45 a.m. The Affidavit-in-Reply filed by Shri. Wagh, the Assistant Police
Inspector attached to Sakinaka Police Station gives certain dates and time.
In paragraph 6 of the said Affidavit-in-Reply, it is mentioned that the
informant came to Sakinaka Police Station on 19 th April, 2025 at around
23:30 hrs. The inquiries were made by the investigating agency in presence
of her husband. After that, the detenu was called to Sakinaka Police Station
by sending a team of police officers. The detenu was brought to Sakinaka
Police Station at 0.38 hrs., on 20th April, 2025. This particular fact is not
disputed in the Affidavit-in-Reply itself. According to the investigating
agency the detenu was not co-operating with the investigation. The police
officers required the services of a translator and with the help of that
translator, the statement was recorded, the F.I.R. was lodged and the
investigation commenced. After that the victim was sent for Medical
Examination. The Applicant was asked to produce his identification
documents. In the meantime, the Spot Panchanama was conducted. Clothes
of the detenu were seized between 9:45 p.m. to 10:50 p.m. on 20 th April,
2025 in the presence of panchas. The Petitioner was shown arrested on 20 th
April, 2025 at 11:20 p.m. and he was produced before the learned Judicial
Magistrate, First Class, 66th Court, Andheri, Mumbai at 12:45 p.m. on 21 st
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April, 2025. He was remanded to police custody till 24th April, 2025.
8) This time line clearly shows that the detenu was in the police
station from 0:38 hrs. on 20th April, 2025 and he was actually shown
arrested at 23:20 hrs. on 20th April, 2025. The F.I.R. was lodged at 7:13 hrs.
on 20th April, 2025. It is quite clear from this fact that from midnight of 20 th
April, 2025 the detenu was in the police station. He was not a free man. He
was not allowed to leave the police station. Therefore, the learned Counsel
for the Petitioner is right in submitting that the detenu ought to have been
produced before the nearest Magistrate before 0:38 hrs. on 21 st April, 2025.
Even by giving a little concession till registration of F.I.R. we find that the
F.I.R. was registered at 7:13 a.m. in the morning. Even then the detenu
ought to have been produced before the nearest Magistrate before 7:13
a.m. on 21st April, 2025. It is an admitted fact that he was produced for the
first time before the Judicial Magistrate First Class, 66 th Court, Andheri,
Mumbai on 21st April, 2025 at 12:45 p.m. Thus looking from any angle, all
these time lines show that the Petitioner was produced beyond the
stipulated period of twenty-four hours. before the learned Magistrate and
therefore, there was violation of Article 22(2) of the Constitution of India
and Section 58 of the BNSS. In this view of the matter, it will have to be
held that his detention on 20th April, 2025 from 0:38 hrs. was illegal. With
the result, the Petitioner will have to be released as is prayed in prayer
Clause (c) of this Petition.
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9) The trial is still pending before the Additional Sessions Judge,
Dindoshi at Mumbai and therefore, the detenu will have to execute a bond
which will lend assurance that he would attend the Trial Court and would
not abscond. Therefore, before his release, he will have to execute the
necessary bail bond as directed in this Order.
10) There is another important aspect in this matter. The offence is
quite serious and therefore, it would not be proper if the victim suffers
because of the lapse on the part of the investigating agency. A Division
Bench of this Court in the case of Kavita Manikikar Vs. Central Bureau of
Investigation & Anr. in Writ Petition No.1142 of 2018 vide the Order dated
10th May, 2018 had held the arrest of the Petitioner in that Petition as illegal
but had further observed that the investigating agency was not precluded to
arrest the Petitioner if the investigation so warranted, by following the due
procedure of law. The relevant portion in paragraph 17 of the said
Judgment is as follows:-
"17. In result, of the aforesaid discussion, the writ petition is
allowed in terms of prayer clause (a) and it is held that the
arrest of the Petitioner is illegal and contrary to the provisions
of Section 46(4) of the Code of Criminal Procedure. However,
the CBI is not precluded to arrest the petitioner if investigation
warrants so, by following the due procedure of law."
11) Therefore, to strike a balance, liberty needs to be given to the
investigating agency to re-arrest the detenu if they deem fit. The
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investigating agency may have regard to the fact that the investigation is
over and there are no antecedents against him. Since the detenu is being
released because of violation of the provisions, this is not a bail Order
under Section 483 of BNSS and therefore it would not be necessary for the
investigating agency to seek Order for cancellation of bail if they decide to
re-arrest the detenu. Hence, the following Order:-
:: ORDER :
:
(i) The Petitioner's husband Pareg alias Prakash Bahadur Manjite
Vishwakarma is directed to be released on bail in connection
with C.R. No.288 of 2025 registered at Sakinaka Police Station
on 20th April, 2025 under Sections 64(2)(k) and 351(2) of
Bharatiya Nyaya Sanhita, 2023, on his executing P.R. Bond in
the sum of Rs.50,000/- with one or two sureties in the like
amount.
(ii) The investigating agency is at liberty to re-arrest the detenu if
they so desire by following due process of law.
(iii) It shall not be necessary for the investigating agency to seek an
Order for cancellation of bail.
(iv) With these observations the Petition is disposed of.
(SHYAM C. CHANDAK, J.) (SARANG V. KOTWAL, J.)
