Orissa High Court
Mustakim Khan And Another vs State Of Odisha And Others .... Opposite ... on 13 October, 2025
Author: R.K. Pattanaik
Bench: R.K. Pattanaik
IN THE HIGH COURT OF ORISSA AT CUTTACK
CRLREV No.706 of 2025
Mustakim Khan and another .... Petitioners
Mr. S.K. Das, Advocate
-Versus-
State of Odisha and others .... Opposite Parties
Mr. P.K. Ray, AGA
CORAM:
MR. JUSTICE R.K. PATTANAIK
ORDER
13.10.2025
Order No.
01. 1. Heard learned counsel for the respective parties.
2. Instant revision is filed by the petitioners challenging
the impugned order as at Annexure-3 of the learned S.D.J.M.,
Berhampur passed in connection with MC No.316 of 2025
under Section(s) 57 read with 58 BNSS, whereby, an
application thereunder as per Annexure-2 received from
petitioner No.2 on account of illegal detention of petitioner
No.1, hence, for orders was rejected on the grounds inter alia
that such decision is legally untenable and hence, liable to be
interfere with and set aside followed by consequential
directions issued in that regard.
3. Learned counsel for the petitioners submits that
petitioner No.1 was illegally detained on and from 12th August,
2025 and was finally forwarded to the learned court below on
23rd August, 2025. The further submission is that in view of
such detention of petitioner No.1, the application at Annexure-2
was moved by petitioner No.2 seeking appropriate relief by
claiming that such unlawful detention is in violation of Article
22(2) of the Constitution of India. The submission is that the
learned court below did not consider Annexure-2 in its proper
perspective and disposed it of vide Annexure-3 claiming want
of jurisdiction in directing the IIC of the local PS in connection
therewith. In response to such claim of petitioner No.2, it is
submitted that the learned court below ought to have enquired
into the allegations made by petitioner No.2 upon receiving
Annexure-2 and should have allowed immediate release of
petitioner No.1 since the detention to be unauthorized but it has
resulted in the passing of the rejection order i.e. Annexure-3.
The further contention is that such a plea was advanced while
demanding release of the petitioner No.1 on bail by referring to
Annexure-4 and though, it has been taken judicial notice of so
revealed from Annexure-5, the petitioner No.1 was not
released, hence, such application but was rejected on 16th
September, 2025. It is at last submitted that the learned court
below miserably failed to exercise jurisdiction under Section(s)
57 read with 58 BNSS while dealing with the application of
petitioner No.2 as per Annexure-2 and hence, therefore, the
impugned order i.e. Annexure-3 is liable to be set at naught.
4. Mr. Ray, learned AGA for the State, on the other hand,
submits that there is no material on record as made to reveal
from Annexure-5 regarding the unlawful detention of petitioner
No.1 as has been alleged by petitioner No.2 with such an
application i.e. Annexure-2 being moved, hence, therefore,
such arrest is not illegal.
5. In course of hearing, learned counsel for the petitioner
cited the following decision, such as, Joginder Kumar Vrs.
State of U.P. and others (1994) 4 SCC 260; Directorate of
Enforcement Vrs. Subhash Sharma 2025 SCC Online SC
240; and D.K. Basu Vrs. State of West Bengal (1997) 1 SCC
416. The judgment of this Court in BLAPL Nos.5527 and 6993
of 2025 (Jati @ Susanta Rout Vrs. State of Odisha) dated 6th
August, 2025 is also cited to contend that the detention of
petitioner No.1 since unauthorized as he was not forwarded to
the learned court below within 24 hours being statutorily
mandated, the impugned order i.e. Annexure-3 is not
sustainable in the eye of law.
6. Admittedly, petitioner No.2 approached the learned
court below with the application dated 20th August, 2025 i.e.
Annexure-2 by claiming that her son, namely, petitioner No.1
has been unauthorizedly detained by the local PS. From the
impugned order i.e. Annexure-3, the Court finds that the
learned court below at the threshold disposed of Annexure-2
without any enquiry on the premise that it lacks jurisdiction to
direct the IIC of the PS concerned while exercising power
under Section(s) 57 and 58 BNSS. The impugned order dated
20th August, 2025 is a cryptic one without any reasons
assigned. In fact, the learned court below reached at a
conclusion that it does not have the powers to direct the local
police to respond considering the grievance of petitioner No.2.
The Court is of the view that an enquiry was required to be
made immediately when it was claimed by petitioner No.2
regarding unlawful detention of petitioner No.1 for about 10
days as it has been alleged that the said petitioner was
physically confined from 12th August, 2025 to 23rd August,
2025. It was the bounden duty of the learned court below to
cause an enquiry with a direction in that regard to the PS
concerned. No such enquiry has been held, rather, the
application i.e. Annexure-2 was disposed of with a conclusion
that the Court does not have the jurisdiction to deal with the
same. According to the Court, it was on a false premise that the
learned court below having no jurisdiction to issue any such
direction to the PS concerned disposed of the application dated
20th August, 2025 i.e. Annexure-2 received from petitioner
No.2. The conclusion is that a detailed enquiry was absolutely
necessary in view of the claim of illegal detention beyond 24
hours statutorily allowed in view of Section 167 Cr.P.C. The
learned court below was, therefore, not justified to dispose of
Annexure-2 in such manner on a mistaken belief as to absence
of jurisdiction.
7. The law is well settled as has been enunciated in
Joginder Kumar (supra) that necessary paraphernalia are to be
observed immediately by the time and after arrest of an accused
and therein, the Apex Court discussed in detail regarding the
powers of the police. In Subhash Sharma (supra), the Apex
Court had the occasion to conclude that the provisions of
Sections() 57 and 58 BNSS equally apply to the ED cases
under the PMLA. The judgment of the Apex Court in D.K.
Basu (supra) is a decision with series of directions with
guidelines issued while dealing with a question of fair
treatment on arrest of a person, which needs no elaboration.
The decision in Jati @ Susanta Rout (supra) of this Court, as
relied upon, relates to detention beyond 24 hours with a
direction to release the petitioners therein on bail. Having taken
judicial notice of the decisions (supra), the Court reaches at a
conclusion that the learned court below did not consider the
application i.e. Anneure-2 dated 20th August, 2025 in the
manner expected instead of disposing it of vide Annexure-3. To
reiterates, the Court concludes that a threadbare enquiry is
necessary and expedient considering the application i.e.
Annexure-2 of petitioner No.2 and for that necessary direction
is required to be issued for the learned court below for
concluding the same within a stipulated period.
8. Accordingly, it is ordered.
9. In the result, the revision petition stands disposed of
with the direction as aforesaid to be complied with by the
learned S.D.J.M., Berhampur, Ganjam to deal with Annexure-2
restored to file to consider the plea of petitioner No.2 in terms
of Section(s) 57 read with 58 BNSS and thereafter, to pass
necessary orders at the earliest preferably within a period of
seven days form the date of receipt of a copy of this order. It is
further directed that the learned court below with the
restoration of the proceeding in MC No.316 of 2025 shall direct
the local PS to cause production of details of the record and all
such materials for its perusal and thereafter, to take a decision
on Annexure-2 according to law and in case the detention of
petitioner No.1 is proved to be unauthorized to release him
forthwith. It is further directed that no extension of time
shall be entertained and in case, the enquiry is not concluded
within the above stipulated period on account of default of the
local PS, pending final response received within such time, to
immediately release the said petitioner, as an interim measure,
subject to conditions as deemed just and proper in the facts and
circumstances of the case.
10. Issue urgent certified copy of this order as per rules.
(R.K. Pattanaik)
Judge
TUDU
