MANOHAR SHARAD PATHAREversusSTATE OF MAHARASHTRA AND ORS

                       supriya                                                  901-WP-3221-2026


                                 IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                       CRIMINAL APPELLATE JURISDICTION

                                        WRIT PETITION NO. 3221 OF 2026

SUPRIYA               Manohar Sharad Pathare                          ..Petitioner
PRAMOD
JAWARE                     Versus
Digitally signed by
SUPRIYA
PRAMOD JAWARE
                      The State of Maharashtra & Ors.                 ..Respondents
Date: 2026.08.25
18:51:42 +0530
                                                   __________
                      Ms. Priyanka Dubey a/w Mr. Saurabh Kamble, Mr. Utkarsh Shukla,
                      Hitanshi Gajaria for the Petitioner.
                      Ms. Supriya Kak, APP for the State/Respondent.
                      Ms. Syed Shabana M. Ali, for Intervenor/victim.
                                                   __________

                                         CORAM : SARANG V. KOTWAL &
                                                 RANJITSINHA RAJA BHONSALE, JJ.

                                         DATE     : 21 AUGUST 2026

                      JUDGMENT [PER : SARANG V. KOTWAL, J] :-

                      1.            The Petitioner has preferred this Petition for release of

                      his brother (the detenu) from custody and for declaration that his

                      arrest was illegal, being in violation of Article 21 and 22(2) of the

                      Constitution of India and in violation of Sections 47, 48 and 58 of

                      the Bharatiya Nagarik Suraksha Sanhita, 2023.


                      2.            Heard, Ms. Priyanka Dubey, learned Counsel for the

                      Petitioner, Ms. Supriya Kak, learned APP for the State/Respondent

                      and Ms. Syed Shabana M. Ali, learned Counsel for the victim.

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3.             The Petitioner’s brother (the detenu) is an accused in

C.R. No. 376 of 2026 registered at Dongri Police Station on 4th

June 2026 under Sections 10 and 12 of the Protection of Children

from Sexual Offences Act, 2012 and Section 74 of the BNS, 2023.


4.             The allegations against the detenu are as follows:-


               The F.I.R. was lodged by the father of the victim girl,

who was aged 11 years. The first informant was working abroad.

He was residing with his family in Mumbai in the year 2023. When

he had gone to Saudi Arabia for work, the detenu developed close

relations with the informant’s wife. There are allegations

amounting to the offences mentioned in the FIR as far as the

victim girl is concerned. The informant’s brother told him about all

these incidents. When the informant came to India, he took his

elder son aged 19 years and the victim girl with him and started

residing together. There was a dispute between the informant and

his wife. The first informant lodged the FIR in respect of these

allegations.


5.             The main contention of the Petitioner is that, the


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detenu was actually called to the Police Station in the morning of

10th June 2026. He attended the Dongri Police Station at 11.00

a.m. to 12.00 p.m. on 10 th June 2026 and, from that moment

onwards, he was under the complete control and custody of the

Police Officers attached to Dongri Police Station. However, he was

shown as arrested only at 8.15 p.m. in the evening on 10 th June

2026. He was produced before the Special Court on 11 th June 2026

at 3.46 p.m. and thereafter, police custody remand was granted.

According to the Petitioner, the detenu was produced before the

Special Court after the expiry of the period of 24 hours from his

arrest and, therefore, his arrest was illegal and hence he deserves

to be released.


6.         Learned Counsel for the Petitioner submitted that, the

detenu had reached the Police Station approximately between

11.00 a.m. to 12.00 p.m. From that point onwards, he was not

allowed to go out and, hence, his movements were completely

restricted. He was under complete control of the Police Officers

which amounted to arrest, and therefore, his arrest had taken

place between 11.00 a.m. to 12.00 p.m. on 10 th June 2026. Hence,

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since the production of the detenu before the Special Court at 3.46

p.m. on 11th June 2026 is clearly beyond the statutory period of 24

hours, there is violation of the constitutional provisions as well as

the provisions of the BNSS.


7.           In support of her contention, the learned Counsel for

the Petitioner relied on the following Judgments:


(i)     Hanumant Jagganath Nazirkar Vs. State of Maharashtra as

        reported in 2025 SCC OnLine Bom 2508


(ii)    The Order dated 21st January 2025 passed by the Hon’ble

        Supreme Court in the case of Directorate of Enforcement Vs.

        Subhash Sharma passed in Special Leave Petition (Criminal)

        No. 1136 of 2023.


(iii)   The Order passed by a Division Bench of this Court on 7 th

        October 2025 in Criminal Writ Petition No. 4539 of 2025 in

        the case of Dhanshala Prakash Vishwakarma Vs. The State

        of Maharashtra & Ors.


8.           Learned APP relied on the Affidavit filed by the Police



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Inspector attached to Dongri Police Station. She submitted that,

the detenu was actually arrested at 8.15 p.m. on 10 th June 2026.

She submitted that, the detenu was produced before the Special

Judge at 3.46 p.m. on 11th June 2026, which is within the period

of 24 hours and, hence, there is no violation of any of the

provisions.


9.            Learned Counsel appearing for the victim submitted

that, there is a difference between custody and arrest. The detenu

was not actually arrested when he reached the Police Station, and

therefore, the period will not start from that point of time. In

support of her contention, she relied on the Judgment of a Division

Bench of this Court at Nagpur Bench passed in Criminal Writ

Petition No. 380 of 2026 in the case of Mohd. Avesh Mohd. Hanif

Potiyawala Vs. State of Maharashtra.


10.           We have considered these submissions. Before referring

to the Judgments cited by both the sides, it is necessary to refer to

the stand taken by the Police Officer in the Affidavit. It is

mentioned in the Affidavit that, during the course of the



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investigation, the Investigating Agency added Section 10 of the

POCSO Act in C.R. No. 376 of 2026 of Dongri Police Station which

is the subject matter of this Petition. The statement of the minor

victim was recorded under Section 183 of BNSS before the learned

Judicial Magistrate First Class, Mumbai on 17th June 2026.


11.        As far as the arrest of the detenu is concerned, the

Affidavit mentions that the detenu had come to Dongri Police

Station on 10th June 2026 at 11.00 a.m. The detenu was contacted

on his mobile number and was called to the Police Station for

investigation. During the period between 11.00 a.m. to 8.15 p.m.

on 10th June 2026, the Investigating Officer was involved in the

investigation of another offence. It was in connection with C.R.

No. 392 of 2024 registered at Sewri Police Station under Sections

125, 287 of the BNS and under Sections 3 and 7 of the Essential

Commodities Act. The accused in that case was one Mahir Husain

Munir, who was in Police Custody Remand at Sewri Police Station.

Dongri Police Station had submitted a letter dated 5 th June 2026 in

a competent Court to obtain his custody. The said Accused was

lodged in Taloja jail. The competent Court had directed the

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Superintendent of Taloja jail to hand over the custody of that

accused for investigation. Accordingly, the custody of that accused

was taken on 9th June 2026. The Investigating officer in the

present crime was also the Investigating Officer in connection with

C.R. No. 392 of 2024 of Sewri Police Station. Therefore, he was

involved in that investigation. The said accused Mahir Munir was

experiencing chest pain and, therefore, the Police Officer of Dongri

Police Station escorted him to Sir J. J. Hospital for medical

treatment. The said accused was produced before the competent

Court for remand at 2.30 p.m on 10 th June 2026. The Court

remanded him to judicial custody and then the said accused was

sent to Taloja Central Prison, Mumbai. During all this period, the

detenu in the present case was present at the Police Station.

According to the learned APP, as mentioned the Affidavit, the

detenu was not taken into custody and enjoyed complete personal

liberty. His mobile phone was with him and he was conversing on

it throughout the day. Upon examining the call data records of the

detenu, it could be seen that he was continuously conversing with

various persons till about 7.00 p.m. on 10th June 2026. The


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learned APP therefore, submitted that the Police had not detained

him in any manner. It is further mentioned in the Affidavit that,

after conducting thorough investigation and after confirming his

involvement in the crime, he was taken into custody on 10 th June

2026, after being informed of the grounds of his arrest. The

present Petitioner was informed about the detenu’s arrest. He was

produced before the competent Court as mentioned earlier.


12.        In this background, we had considered the submissions

made by both the parties. The question is whether the detenu

could be said to be arrested as soon as he reached the Police

Station at about 11.00 a.m. or can he be said to be under arrest at

8.15 p.m. to calculate the statutory period of 24 hours.


13.        In this context the relevant provisions are as follows:-

(i) Article 22 : Protection against arrest and detention in certain
cases

             (1)------

              (2) 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

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         person shall be detained in custody beyond the said period
         without the authority of a magistrate.

(ii)   Section 58 of the BNSS :

         58. 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.


14.         In support of her contention, the learned Counsel for

the petitioner relied on the case of Hanumant Jagganath Nazirkar.

In that case, it was mentioned in paragraph 38 that merely

because the detenu in that case was in touch with his family

members over the cell phone would not mean that the said detenu

in that case was not in custody or control of the Police Authorities.


            Based on this observation, learned Counsel for the

Petitioner in the present case submitted that, the stand taken by

the Police that the detenu was in touch with his family members or


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was conversing on his mobile phone would not mean that he was

not arrested or was not in custody and, therefore, it cannot be said

that he was a free man till 8.15 p.m. on 10th June 2026.


           In this context, the facts in the said case of Nazirkar

need to be taken into consideration. Paragraph 31 and 32 in that

Judgment mention that, the accused in that case was taken into

custody at Shivajinagar Metro Station, Pune and then was

produced before the Shivajinagar Police Station. After taking him

into custody at 1.00 p.m. on 25 th October 2024 at Shivajinagar

Metro Station, he was produced before Shivajinagar Police Station

and then he was taken to Baramati. They reached Baramati at 5.07

p.m. on 25th October 2024. He was produced before the Magistrate

on 27th October 2024 at 12.20 p.m.


           The Division Bench of this Court referred to the general

diary wherein it was mentioned that, Shivajinagar Police Station

had taken custody and control of the Petitioner. Thus, in that case,

the accused was arrested at Shivajinagar Metro Station and since

then he was under control and custody of the Police Authorities. In



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that context, those observations were made.


           The facts in the present case are completely different

therefore, the said Judgment is not applicable in the facts of the

present case.


15.        The learned Counsel for the Petitioner then relied on

the Judgment of the Hon’ble Supreme Court in the case of

Directorate of Enforcement Vs. Subhash Sharma . In that case also,

there is a clear observation that, the physical custody of the

accused in that case was taken at 11.00 hours on 5 th March 2022

and thereafter at 01.15 a.m. on 6 th March 2022, an arrest memo

was prepared by ED at Raipur. He was produced before the Court

at 3.00 p.m. on 6th March 2024. In this background, it was

observed that the accused was not produced before the nearest

learned Magistrate within 24 hours from 11.00 a.m. on 5 th March

2022. In that background, the relief was given to the accused in

that case. The facts in that case before the Hon’ble Supreme Court

are hence different from the facts of the present case.


16.        Similar is the case with the Order in Dhanshala


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Vishwakarma’s matter. In that case, the accused was in the Police

Station at 0.38 hours on 20th April 2025 and he was actually

shown arrested at 23.20 hours on 20th April 2025. In that case

F.I.R. was lodged at 7.13 hours on 20 th April 2025. Thus, the

accused in that case was taken in custody even before lodging of

the F.I.R., who was in the Police Station at odd hours in the

midnight before registration of the F.I.R. and, therefore, he was not

a free man. In that context, it was held that, the statutory limit of

24 hours was not followed and benefit was given to that accused.


17.        Learned Counsel for the Respondent No.2 referred to

the case of Mohd. Avesh Mohd. Hanif Potiyawala. It is a Division

Bench Judgment passed by the Nagpur Bench. In the said

Judgment, the concept of custody and arrest was extensively

considered. It was held in paragraph 22 that, the concept of being

in custody cannot be equated to the concept of a formal arrest and

there is a difference between the two. It was further observed that,

in every arrest there is a custody but not vice versa. The custody

may amount to an arrest in certain cases but not in all cases.



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18.         In the background of these legal principles, the present

facts can be considered.


19.         Admittedly, in this case, the F.I.R. was lodged on 4th

June 2026. The detenu was named as an accused. Learned

Counsel for the petitioner submitted that, in the aforementioned

Judgment of Mohd. Avesh Mohd. Hanif Potiyawala, the detenu in

that case was merely a suspect and not an accused and thus this is

a distinguishing feature in the present case.


20.         In the present case, the detenu was undoubtedly

mentioned as an accused. However, he was called for enquiry at

the Police Station. The Police had not gone to his residence or any

other place to arrest him. Once the detenu came to the Police

Station, it was well within the powers of the Police to make

enquiry with him and only after being satisfied that his arrest was

necessary, the arrest could be effected. In the present case, the

Investigating Officer has sufficiently explained as to why the

enquiry could not be made with the accused immediately. The

Investigating Officer was involved in another investigation where



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the accused in that case had suffered health issues and had to be

taken to hospital. This is a reasonable explanation. For that

purpose, if the detenu in this case was made to wait in the Police

Station, that would not amount to his arrest. There is nothing to

show that, he was not allowed to contact or converse with his

relatives. In fact, there is a phone record which shows that he was

in touch with others till about 07.00 p.m. in the evening. In the

case of Hanumant Nazirkar, the accused was taken to hospital, his

son was with him and there was record of phone conversations.

But in that case, the accused was taken to the hospital by the

Police themselves. Therefore, he was always under the control of

Police. This is the distinguishing feature as far as the present case

is concerned. The detenu was made to wait so that the preliminary

enquiry could be conducted. It is reasonable to expect from the

Police Officers to satisfy themselves about the involvement of an

accused before effecting actual arrest. The Police had taken

sufficient precaution in this case. Therefore, we do not find fault

with the procedure. In this situation, the case of the prosecution

that, the detenu was kept under arrest at 8.15 p.m. on 10 th June


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2026 is acceptable. He was produced within 24 hours from that

point onwards. It can not be accepted that, the moment the detenu

stepped into the Police Station at around 11.00 a.m. on 10 th June

2026, he was under arrest. Article 22(2) uses the phrase ‘arrested

and detained in custody’. Therefore, we do not find that this is a

case of illegal detention. No relief can be granted in this Petition.


21.         The Petition is disposed of. It is needless to add that the

detenu is at liberty to file a bail application, which shall be decided

on its own merits without being influenced by the dismissal of this

Petition.



(RANJITSINHA RAJA BHONSALE, J.)             (SARANG V. KOTWAL, J.)




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