KALIM ISAQ SHAIKHversusSTATE OF MAHARASHTRA AND ANR

                    supriya                             1 of 10                  903-WP-4598-2026


                                 IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                       CRIMINAL APPELLATE JURISDICTION

SUPRIYA
PRAMOD                                  WRIT PETITION NO. 4598 OF 2026
JAWARE
Digitally signed
by SUPRIYA
PRAMOD
JAWARE
                   Kalim Isaq Shaikh,
Date: 2026.09.28
17:54:22 +0530
                   Age : 31 years, Occ : Driver,
                   R/o : Ghari, Tal. Barshi,
                   VTC Ghari, Dist. Solapur
                   (At present Thane Central Prison)                          ..Petitioner

                              Versus

                   1. The State of Maharashtra
                      Through Senior Police Inspector of
                      Kashigaon Police Station, Thane

                   2. The Superintendent
                      Thane Central Prison, Thane                             ..Respondents
                                                __________

                   Mr. Priyal Sarda along with Shubham Sane, Seema Dighe for the
                   Petitioner.
                   Ms. M. M. Deshmukh, A.P.P., for the Respondent-State.
                   Mr. Ashutosh Chavan, API, Kashigaon Police Station, Mira-Bhayander-
                   Vasai-Virar Commissionerate is present.
                                                 __________

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

                                         DATE    :   23rd SEPTEMBER 2026

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

                   1.              This Petition is preferred by the Petitioner for issuance of

                   Writ of Habeas Corpus for declaring his arrest as illegal in connection
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with C.R. No. 322 of 2026 registered at Kashigaon Police Station, Mira-

Bhayander, Vasai-Virar.


2.          Heard, Mr. Priyal Sarda, learned Counsel for the Petitioner

and Ms. M. M. Deshmukh, learned A.P.P., for the Respondent-State.


3.          Before referring to the issue raised in this Petition, it is

necessary to refer in brief to the allegations in the FIR. The FIR was

lodged on 30th June 2026 at Kashigaon Police Station vide C.R. No. 322

of 2026 under Sections 69, 89, 75, 351(4), 324(4), 305(a), 115(2),

351(2), 352 of the BNS. The case of the informant was that the

Petitioner established physical relations with her, sometimes with her

consent, sometimes by force on the false promise of marriage. There are

allegations of theft of her ornaments as well. There are allegations of

threats and assault. On these allegations, the FIR is lodged.


4.          The Petitioner was taken into custody at Barshi at 6.14 p.m.

and was taken to Kashigaon Police Station at 4.50 a.m. on 22 nd August

2026. He was produced before the learned Magistrate Mira Bhayander

Road on 22nd August 2026. It is the case of the Petitioner that he was

produced before the learned Magistrate beyond 24 hours from his

arrest. More importantly, his contention is that when he was arrested at

Barshi, he ought to have been produced before the nearest Magistrate
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from where he was arrested in Barshi. Instead of that, the Petitioner was

taken to Kashigaon and was produced before the learned Magistrate at

Mira Bhayandar. This is clear violation of Article 22 of the Constitution

and the statutory provisions under the BNSS.


5.          Learned Counsel for the Petitioner specifically relied on

ground (I) of this Petition, wherein the ground was raised that no

transit remand was taken at Barshi and the Petitioner was not produced

before the Magistrate at or near Barshi before he was taken to

Kashigaon, which was at a distance of about 380 to 400 km. It was thus

violation of Article 22(2) of the Constitution and was in breach of

Section 58 and 187 of BNSS. In support of his contention, learned

Counsel Shri. Sarda relied on the Judgment of a Division Bench of this

Court at Aurangabad Bench in the case of Vachhalabai Vs. State of

Maharashtra , reported in 2019 SCC OnLine Bom 2937.


6.          Learned APP, on the other hand, relied on the Affidavit of

the Investigating Officer. She submitted that the Petitioner was

produced before the Judicial Magistrate within 24 hours from his arrest

and, therefore, there was no violation of any provision.


7.          We have considered these submissions. The Petitioner has

raised this specific issue before the learned Magistrate at Mira Road
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when he was produced before that Magistrate. A pursis was filed on his

behalf on 22nd August 2026 before the learned Magistrate. It was

contended in that pursis that the Petitioner was arrested by the police at

Barshi, Dist. Solapur, at about 4.30 p.m. on 21 st August 2026. After that,

he was taken to Barshi City Police Station where a family member was

informed about the arrest and grounds were furnished to him at about

5.30 p.m. to 6.00 p.m. on 21st August 2026. After that, he was brought

to Kashigaon Police Station. He was produced before the learned JMFC

at Mira Road at about 7.45 p.m. on 22 nd August 2026. He had

specifically claimed violation of the Article 22(2) and of Sections 57, 58

and 187 of BNSS. The learned Magistrate passed a remand order and

held that the Petitioner was taken into custody at Barshi at 6.14 p.m. on

21st August 2026 and was taken to Kashigaon Police Station at 4.50 a.m.

on 22nd August 2026 and was produced for remand at 1.30 p.m. to 2.00

p.m., but since the learned Magistrate was attending Judicial workshop

at Thane, the remand order could not be passed. The learned

Magistrate held that it did not appear that the production was beyond

the period of 24 hours and, therefore, granted police custody remand at

the first instance till 24th August 2026.


8.           The Affidavit-in-Reply filed on behalf of the Investigating
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Agency endorses the same time-line. It is mentioned therein that the FIR

was lodged on 30th June 2026 and the investigation commenced. During

investigation, on 21st August 2026, the Police team visited Barshi and

the Petitioner was taken into custody with the help of local Police

Station, i.e. Barshi Police Station. Notice under Section 47(1)(2) of

BNSS was served on him mentioning the reasons and grounds of his

arrest. The notice under Section 48 of BNSS was served on the relative

of the Petitioner. The Police team took the Petitioner towards Kashigaon

Police Station and Station Diary Entry was made at Barshi Police Station

to that effect at 6.14 p.m. on 21 st August 2026. He was brought to

Kashigaon Police Station at 4.50 a.m. on 22nd August 2026. The Arrest

Form was made at Kashigaon Police Station on 22 nd August 2026. The

Police took the Petitioner from Kashigaon Police Station to proceed

towards the Court of JMFC, Mira Road at 1.58 p.m. on 22 nd August

2026.


            The learned Judge was attending a Judicial workshop at

Thane, therefore, the Petitioner was brought back to Kashigaon Police

Station at 2.34 p.m., and the Petitioner was to be produced at 5.00 p.m.

The Station Diary Entries were made to that effect. After that, the

Petitioner was produced before the learned JMFC at 7.40 p.m. on 22 nd
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August 2026. Thus, it is contended that he was produced before the

learned Magistrate within 24 hours and there was no illegality in his

continued detention.


9.          In the backdrop of these facts, we have considered the

submissions made by the learned Counsel for the Petitioner. He relied

on the case of Division Bench of this Court in the case of Vacchalabai.

The Division Bench specifically considered the expression “nearest

Magistrate”. In that case, the Police from Karnataka had arrested the

Petitioner in that case from Maharashtra but had not produced him

before the nearest Magistrate. In that context, the Division Bench made

certain observations. The relevant paragraphs are paragraph 26, 55 and

56 which are as follows :


      26. The aforesaid reasons given to have the Article in the
      present form show that no scope is left to police to keep
      arrested person in their custody for the purpose of investigation
      for more than 24 hours excluding the time required for taking
      the accused from the place of arrest to the Court of Magistrate.
      Only to ensure such observance, mandate, the term “nearest
      magistrate” is used and specific period is also given. The period
      of 24 hours is given in relation to the term “nearest magistrate”
      and it cannot be read separate from this term. Further, as per
      the aforesaid reasoning given, “nearest magistrate” cannot be
      presumed as the Magistrate having jurisdiction over the crime,
      in which the accused is arrested. Further, right to inform the
      Magistrate of the charge under which that man is arrested given
      in this Article shows that it was intention to see that the
      Magistrate within whose territorial jurisdiction the man is
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arrested is expected to be informed about such arrest and such
Magistrate is expected to exercise the power, which can be like
bail, remand etc. No other interpretation of the aforesaid
obligation, to inform to the Magistrate about the arrest
mentioned by Dr. Ambedkar is possible. In view of this object
behind using the term “nearest” the subsequent reference of
terms like “Court of Magistrate” and “Magistrate” in Article
22(2) can have the same object. So, the subsequent terms used
as “Court of Magistrate” and “Magistrate” means that “nearest
magistrate” mentioned in the Article. If the purpose behind
Article 22(2) of Constituent Assembly is kept in mind, only the
aforesaid meaning can be given to the term “nearest
magistrate”.
55. The provision of Section 167(2-A) of Cr. P.C. already quoted
shows that no excuse is available to the police officer arresting
the accused like nearest Judicial Magistrate was not available. In
that case also, as per this provision, the accused needs to be
transmitted to the nearest Executive Magistrate on whom powers
are conferred of Judicial Magistrate. In that case also, some
record is required to be prepared by the police officer under this
Section. This provision shows that no scope is left to police to say
that they could have produced such arrested accused before the
concerned Magistrate, the Magistrate having jurisdiction over the
offence within 24 hours from the time of arrest and so, the
accused was taken before the concerned Magistrate. In view of
the aforesaid provisions, the interpretation suggested for the
Respondents by the learned APP is not at all acceptable.

56. The aforesaid provisions are safeguards for protection of
fundamental rights mentioned in Article 21 of the Constitution of
India. They need to be strictly followed by the officers effecting
arrest. If there is a material to infer that there was actual arrest,
but after the arrest the accused was not taken before the nearest
Magistrate and he was taken far away from that place for
production before the concerned Magistrate, the moment the
accused is taken out of the jurisdiction of nearest Magistrate, his
detention becomes unauthorized and illegal. Such detention will
not become legal only because subsequently the accused is
produced before the Magistrate having jurisdiction to try or
inquire into the offence within 24 hours of the actual arrest. Here
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      only it needs to be mentioned that the contention of police that
      formal arrest was made after taking the accused to the local
      jurisdiction of the concerned Magistrate and the period needs to
      be counted from that time and the case needs to be considered
      from that angle cannot be accepted. There are other provisions in
      Cr. P.C. like issuing notice or summons for making inquiry and by
      that process calling a person to the police station is possible. If
      that procedure is not followed and accused is picked up from a
      place over which the police station has no jurisdiction and he is
      taken to the place over which the police has jurisdiction,
      inference become easy that the accused was taken away from the
      first place only by illegally detaining him. If such interpretation is
      not made then the aforesaid provisions mentioned like Section
      41-B, 41-C and all subsequent provisions will become otiose and
      that will be against all the provisions made to safeguard the
      fundamental rights of such person.


10.            The said judgment was followed by another Division of this

Court in the case of Shakoor Ahmed Jamaluddin Sayed Vs. State of

Maharashtra in Criminal Writ Petition No. 2297 of 2025, vide the Order

dated 2nd May 2025.


11.            Thus, it is clear that the Investigating Agency was duty

bound to produce the Petitioner before the “nearest Magistrate” at

Barshi, from where he was arrested. The contention that he was

produced within 24 hours by itself is not sufficient. The arrested person

has to be produced before the nearest Magistrate as per the requirement

of the above provisions, as is held by the Division Bench in the case of

Vacchalabai.
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12.         In this view of the matter, there is clear violation of these

provisions and, therefore, the Petitioner deserves relief in this case.

However, the allegations against him are serious and, therefore, the

learned APP submitted that the Court may consider directing the re-

arrest of the Petitioner. In that context, the learned Counsel for the

Petitioner relied on the Judgment of the Hon’ble Supreme Court in the

case of Jaskaran Jeet Singh Deol Vs. State of Punjab in Criminal Appeal

No. 4234 of 2026. The Order is dated 21st September 2026. In the

Judgment of Shakoor Ahmed Jamaluddin Sayed also, reference is made

to a Judgment of another Division Bench of this Court in the case of

Kavita Manikikar Vs. Central Bureau of Investigation, wherein the

question of re-arrest was considered. In Shakoor Ahmed’s case, the

Investigating Agency was permitted to take steps in accordance with

law to re-arrest the Petitioner only if it was absolutely necessary, by

giving proper reasonable notice to the Petitioner. Considering this

situation, similar Order can be passed. Hence, the following Order :-


                                ORDER


(1)   The Petitioner is directed to be released on bail on his executing

      P.R. bond in the sum of Rs. 50,000/- (Rupees Fifty Thousand

      only) with one or two sureties in the like amount on the
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      following conditions :-


      (i)           The Petitioner shall cooperate with the investigation.

                    He shall not tamper with the evidence. He shall not

                    contact or threaten any witnesses.


      (ii)          He shall attend Kashigaon Police Station once in

                    fortnight till filing of the chargesheet and, thereafter,

                    on every 1st Sunday of the month between 3.00 p.m.

                    to 5.00 p.m.


      (iii)         The Petitioner shall deposit his passport, if any, with

                    the Investigating Agency before being released.


(2)   It is made clear that if it is absolutely necessary to re-arrest the

      Petitioner, the Investigating Agency shall take steps in accordance

      with law and in particular by following the guidelines issued by

      the Hon’ble Supreme Court in the case of Jaskaran Jeet Singh

      Deol (supra).


13.           The Petition is accordingly disposed of.



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