[Cites 5, Cited by 0]
Orissa High Court
Subash Nayak vs State Of Odisha & Anr. ... Opposite ... on 23 December, 2025
Author: G. Satapathy
Bench: G. Satapathy
IN THE HIGH COURT OF ORISSA AT CUTTACK
BLAPL No.9270 of 2025
(In the matter of application under Section 483 BNSS)
Subash Nayak ... Petitioner
-versus-
State of Odisha & Anr. ... Opposite Parties
For Petitioner : Mr. R.K. Routray, Advocate
For Opposite Party : Mr. C. Mohanty, Addl. PP
CORAM:
JUSTICE G. SATAPATHY
DATE OF HEARING & JUDGMENT:23.12.2025 (ORAL)
G. Satapathy, J.
1. This is a bail application U/S.483 of the
BNSS by the petitioner for grant of bail in connection
with Chauliaganj PS Case No. 436 of 2025
corresponding to Spl. GR Case No.130 of 2025 pending
in the Court of learned Addl. District & Sessions Judge-
cum-Special Court under POCSO Act, Cuttack for
commission of offences punishable U/Ss. 64(1)/351(3)
of BNS r/w Sec.4 of POCSO Act, on the main allegation
of committing rape and penetrative sexual assault upon
the victim.
2. Heard Mr. Rakesh Kumar Routray, learned
counsel for the petitioner and Mr. C. Mohanty, learned
Addl. Public Prosecutor in the matter and perused the
record including the written instruction as produced.
3. The petitioner in addition to other grounds has
taken the plea for grant of bail to him for his detention
in custody beyond twenty four hours. On the last date,
this Court by taking into consideration the submission
as advanced for the petitioner has sought for
instruction from the concerned IO regarding detention
of the petitioner beyond twenty four hours in custody
through learned Addl. Public Prosecutor who in course
of the day has produced the written instruction,
wherein the IO has stated that the case was registered
on the basis of the report submitted by the complainant
on 17.08.2025 and the petitioner was issued with a
notice U/S.179 of BNSS only on 19.08.2025 asking the
petitioner to appear before Chauliaganj Police Station
on 20.08.2025 at 11.00AM, but surprisingly, the
petitioner was medically examined on 18.08.2025
which is evident from the certified copy of the
requisition issued by the IO together with the medical
examination report of the petitioner furnished by
concerned doctor who had prepared such report on
19.08.2025 at about 10.30AM. The aforesaid
documents as produced would unambiguously go to
show that the petitioner was with the IO since
18.08.2025, but he was only forwarded to the Court on
20.08.2025 and thereby, the petitioner was found to
have been detained by the IO beyond twenty four
hours.
4. It is not in dispute that Sec.58 of BNSS
makes it an mandatory for a person arrested not to be
detained more than twenty four hours and such right of
the accused flows from Article 22(2) of the Constitution
of India wherein it is laid down that every person who
is arrested and detained in custody shall be produced
before a nearer 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
the Magistrate. Additionally, once a thing has been
prescribed by law to be done in a particular way, it
must be done in that way and not in any other way. It
is also not in dispute that the power to arrest a person
is one thing and arresting such person depriving his
personal liberty is another thing. This Court, however,
believes that the personal liberty of a person is not only
priceless treasure, but also the fundamental right of
such person and such right cannot be withheld without
recourse to the law. Time and again, it has been held
by a plethora of decisions that a person arrested should
not be detained in custody beyond twenty four hours
without authorization of the competent magistrate.
What would be the consequence, if a person arrested is
detained beyond twenty four hours has been well
answered by the Apex Court in the decision in Director
of Enforcement Vrs. Subash Sharma; 2025 SCC On
Line SC 240 wherein in a somewhat similar situation,
the Apex Court at Paragraph-8 has held as under:-
"8. Once a Court, while dealing with a bail
application, finds that the fundamental rights of
the accused under Articles21 and 22 of the
Constitution of India have 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. The reason is that the arrest in such
cases stands vitiated. It is the duty of every
Court to uphold the fundamental rights
guaranteed under Articles 21 and 22 of the
Constitution."
5. On a conspectus materials placed on
record clearly demonstrates a case in which the
accused-petitioner has been detained in custody
beyond twenty four hours, but without any authority
and therefore, fundamental right of the petitioner as
guaranteed under Article 22(2) of the Constitution of
India has been violated which enures to the benefit of
the petitioner for his release on bail. In view of the
above facts, and taking into consideration the fact of
detention of the petitioner beyond twenty four hours,
this Court is of the considered view that the petitioner's
fundamental being violated, he is entitled to be
released on bail.
6. Hence, the bail application of the petitioner
stands allowed and the petitioner is allowed to go on
bail on furnishing bail bonds of Rs.50,000/- (Rupees
Fifty Thousand) only with one solvent surety for the like
amount to the satisfaction of the learned Court in seisin
of the case on such terms and conditions as deem fit
and proper by it.
7. Accordingly, the BLAPL stands disposed of.
(G. Satapathy)
Judge
Orissa High Court, Cuttack,
Dated the 23rd day of December, 2025/Jayakrushna
Location: High Court of Orissa, Cuttack
