[Cites 7, Cited by 0]

Orissa High Court

Najim Malik vs State Of Odisha ... Opposite Party on 17 February, 2026

Author: G. Satapathy

Bench: G. Satapathy

     IN THE HIGH COURT OF ORISSA AT CUTTACK

                BLAPL NO.11566 of 2025

   (In the matter of application under Section 483 of
   BNSS, 2023).

   Najim Malik                        ...        Petitioner
                           -versus-

   State of Odisha                    ...   Opposite Party

   For Petitioner         : Mr. S. Manohar, Advocate

   For Opposite Party     : Mr. M.R. Patra, Addl. PP

       CORAM:

                   JUSTICE G. SATAPATHY

    DATE OF HEARING & JUDGMENT:17.02.2026(ORAL)

G. Satapathy, J.

1. Pursuant to an order passed by this Court

on 11.02.2026, the concerned police officer namely

Rameswar Padhan at present DSP, Bargarh filed an

affidavit tendering apology by expressing regret for the

language used in the written instruction provided by

him. In paragraphs-7 and 8 of the affidavit, he has

inter-alia stated as under:-

"7. That it is humbly submitted that the compliance in reference to order of the Hon'ble Court directing my appearance and explanation regarding the written instruction submitted in the above noted matter. At the outset, I most respectfully submit that there was no intention on my part to use any language, that could be constituted as derogatory or unbecoming, for which, I beg apology and I sincerely express my regret for the same. The same was neither deliberate nor intended to show any disrespect. This deponent has the highest regard for this Hon'ble Court and holds their Lordships in high esteem.

8. That it is humbly submitted that I assure the Hon'ble Court that I shall remain more careful in future while drafting any official communication and will maintain the dignity expected from the Court."

2. In view of the aforesaid facts and taking

into consideration the personal appearance of the

concerned police officer through virtual mode and

tendering unqualified apology for the same, the

appearance of the concerned police officer namely

Rameswar Padhan stands dispensed with and he is,

hereby, advised to remain careful in future not to

repeat the same again in the matters of the Court.

3. This BLAPL is an application U/S.483 of

BNSS by the petitioner for grant of bail in connection

with Podia PS Case No.10 of 2025 corresponding to

Special GR Case No.22 of 2025 pending in the file of

learned Sessions Judge-cum-Special Judge, Malkangiri,

for commission of offences punishable U/Ss.20(b)(ii)(C)

& 29 of NDPS Act.

4. Heard, Mr. Shyam Manohar, learned

counsel for the petitioner and Mr. M.R. Patra, learned

Additional Public Prosecutor in the matter and perused

the record together with the affidavit of one Rameswar

Padhan, the then arresting officer and at present DSP,

Bargarh along with copy of arrest memo under

Annexure-A and copy of detailed report of this case

under Annexure-B.

5. The petitioner primarily seeks for bail for

want of compliance of Article 22(1) of the Constitution

of India/Section 47 of BNSS (Section 50 of CrPC) for

not informing his grounds of arrest. According to Article

22(1) of the Constitution of India which provides for

"Protection against arrest and detention in certain

cases", no person who is arrested shall be detained in

custody without being informed, as soon as may be, of

the grounds for such arrest nor shall he be denied the

right to consult, and to be defended by, a legal

practitioner of his choice. Similarly, Section 47 of BNSS

which provides for "person arrested to be informed of

grounds of arrest and of right to bail", states that

every police officer or other person arresting any

person without warrant shall forthwith communicate to

him full particulars of the offence for which he is

arrested or other grounds for such arrest, but a careful

scrutiny of the arrest memo produced in this case, it

appears that the arrestee was informed of the

circumstances of arrest in brief (grounds of arrest) in

the following words "In connection with the above

referred case". However, Section 47 of BNSS makes it

not only mandatory, but also obligatory for the

arresting officer to inform the grounds of arrest to the

arrestee in writing in the language he understands

immediate after the arrest or if not possible, just two

hours before the production of the arrestee in the

Court. It seems that the compliance of aforesaid

provision is not an empty formality, rather it is the

fundamental right of an accused against his detention

in custody and it cannot be whittled away/brushed

aside lightly by merely saying that the said provision

has been complied without any further document. In

order to establish the compliance of the aforesaid

provision, it is advisable for the arresting officer to

obtain an acknowledgement from the detainee about

the information of grounds of his arrest in writing in the

language he understands and merely stating or

mentioning that the grounds of arrest has been

informed to the detainee is not sufficient compliance. In

this regard, this Court is fortified with the decision in

Mihir Rajesh Shah Vrs. State of Maharashtra;

(2026) 1 SCC 500, wherein the Apex Court has

summarized its conclusion in paragraph-66, which

reads as under:-

"66. In conclusion, it is held that:

66.1. The constitutional mandate of informing the arrestee the grounds of arrest is mandatory in all offences under all statutes including offences under IPC, 1860 (now BNSS 2023);

66.2. The grounds of arrest must be communicated in writing to the arrestee in the language he/she understands;

66.3. In case(s) where, the arresting officer/person is unable to communicate the grounds of arrest in writing on or soon after arrest, it be so done orally. The said grounds be communicated in writing within a reasonable time and in any case at least two hours prior to production of the arrestee for remand proceedings before the Magistrate.

66.4. In case of non-compliance of the above, the arrest and subsequent remand would be rendered illegal and the person will be at liberty to be set free."

6. Applying the aforesaid principles to the

facts of the present case, it is reasonably found that the

compliance has not been done in letter and spirit of

Article 22(1) of the Constitution of India/Section 47 of

BNSS (Section 50 of CrPC), but what would be the

inevitable conclusion, if such compliance is not done

has been reiterated in Directorate of Enforcement

Vrs. Subash Sharma; 2025 SCC OnLine SC 240,

wherein 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 Articles 21 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."

7. In view of the above facts and taking into

account the non-compliance of mandatory provision as

guaranteed under Article 22(1) of the Constitution of

India/Section 47 of BNSS (Section 50 of CrPC), this

Court has no other option left, but grant bail to the

petitioner.

8. Hence, the bail application of the petitioner

stands allowed and the petitioner is allowed to go on

bail on furnishing bail bonds of Rs.1,00,000/- (Rupees

One Lakh) only with two solvent sureties each for the

like amount to the satisfaction of the learned Court in

seisin of the case on such terms and conditions as