Orissa HC Grants Bail After Finding Police Held Accused 32 Hours Without Producing Him Before Nearest Magistrate

Justice G. Satapathy held that apprehending an accused in Andhra Pradesh and driving him to Odisha without producing him before the nearest Magistrate violated Article 22(2) and Section 58 of the BNSS, making the arrest and detention illegal.

The High Court of Orissa at Cuttack granted bail to an accused in a human trafficking and rape case after finding that the arresting police team had held him in custody for over 32 hours — excluding journey time — without producing him before the nearest Magistrate at the place of arrest. Justice G. Satapathy, sitting singly, held that the failure to comply with Article 22(2) of the Constitution of India and Section 58 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) vitiated the arrest. The judgment also issued six directions to the State Administration and police on the procedure to be followed when an accused is arrested without warrant outside the jurisdiction of the registering Court.

The Trafficking Case and the Arrest in Andhra Pradesh

The case arose from an FIR lodged by one Raibabu Bag at Raighar Police Station, Nabarangpur district, Odisha. The FIR alleged that on 9 January 2024, around 14 persons from his village and a neighbouring village were lured by one Ghasiram Harijan and his associates with the promise of earning Rs 35,000 in four months at Tirupati Bricks Factory. The informant later learnt over mobile phone that the workers were being made to work for more than eight hours without proper wages and were being tortured.

Raighar PS Case No. 93 of 2024 was registered. The offences alleged included Sections 370, 370(3), 376-D, 294, 323 and 506 of the applicable penal law. The case was pending before the Additional Sessions Judge, Umarkote, as CT Case No. 21 of 2024.

During investigation, the Investigating Officer (IO) left Raighar on 14 March 2024 at 11 PM and reached Vedarukupam, Chittoor district, Andhra Pradesh — approximately 1,260 kilometres away — on 16 March 2024 at 4 AM. The IO examined a victim who named the petitioner, Vepanjeri Dileep Kumar, and his brother as having committed rape and recorded a video to threaten her into silence.

A raid was conducted on 16 March 2024. The petitioner was apprehended at 4 PM. According to the affidavit filed by the IIC of Raighar Police Station, the relatives and associates of the petitioner opposed the police team, and the local police did not cooperate. The team left the place at 9 PM on 16 March 2024 with the petitioner and reached Raighar at 7 AM on 18 March 2024. The IO formally showed the arrest at 2 PM on 18 March 2024 and produced the petitioner before the Gram Nyayalaya, JMFC Raighar, on 19 March 2024 at 10 AM. The Sessions Court rejected bail, and the petitioner approached the High Court under Section 483 of the BNSS.

The Legal Issue: What Does “Nearest Magistrate” Mean?

The primary ground for bail was that the police had not produced the petitioner before the nearest Magistrate within 24 hours of his apprehension, as required by Article 22(2) of the Constitution and Section 58 of the BNSS (corresponding to Section 57 of the CrPC).

The State did not dispute that the arrest was made outside the territorial jurisdiction of the registering Court. Its position, as reflected in the IIC's affidavit, was that opposition from the petitioner's relatives and non-cooperation of the local police forced the team to leave immediately for Raighar.

Justice Satapathy framed the issue precisely: when an accused is arrested without warrant at a place far outside the jurisdiction of the Court where the case is registered, does the constitutional obligation to produce him before the “nearest Magistrate” within 24 hours require production before a Magistrate at or near the place of arrest, or does it permit the arresting team to drive the accused back to the jurisdictional Court so long as they arrive within 24 hours?

How the Bench Reasoned Through the Statutory Framework

Justice Satapathy worked through the relevant provisions of the BNSS and their CrPC counterparts in sequence.

Section 45 of the BNSS (Section 48 CrPC) permits a police officer to pursue an offender into any place in India for the purpose of arrest without warrant. Section 79 of the BNSS (Section 77 CrPC) allows execution of a warrant anywhere in India. Section 81 of the BNSS (Section 79 CrPC) requires that a warrant directed to a police officer for execution outside its jurisdiction ordinarily be endorsed by an Executive Magistrate or a police officer in charge of a station within the local limits where the warrant is to be executed. Section 81(3) of the BNSS (Section 79(3) CrPC) provides an exception where delay in obtaining endorsement would prevent execution.

Section 82 of the BNSS (Section 80 CrPC) deals with procedure on arrest outside the district. It requires that when a warrant is executed outside the district of issue, the arrested person shall, unless the issuing Court is within 30 kilometres of the place of arrest or is nearer than the local Executive Magistrate or Superintendent of Police, be taken before such local Magistrate or Superintendent. Section 82(2) of the BNSS — an additional provision with no CrPC equivalent — requires the arresting officer to forthwith inform the designated police officer in the district and in the district where the arrested person normally resides.

Section 187 of the BNSS (Section 167 CrPC) requires that where investigation cannot be completed within 24 hours, the officer shall transmit a copy of the diary entries to the nearest Judicial Magistrate and forward the accused to that Magistrate. The Magistrate, even without jurisdiction to try the case, may authorise detention and, if further detention is unnecessary, order the accused forwarded to the jurisdictional Magistrate.

The Court then turned to Article 22(2) of the Constitution, which mandates that every person arrested and detained in custody shall be produced before the nearest Magistrate within 24 hours of arrest, excluding journey time, and shall not be detained beyond that period without a Magistrate's authority. Justice Satapathy emphasised that the word “nearest Magistrate” does not mean the Magistrate having jurisdiction over the case. The obligation is to produce the arrestee before the nearest available Magistrate, obtain transit remand, and only then remove the accused to the jurisdictional Court.

The Court referred to a Ministry of Home Affairs communication dated 16 May 2012 addressed to Chief Secretaries of all States, which had already flagged that the practice of police officers bringing an arrested person directly back to their own jurisdictional Magistrate — even if achievable within 24 hours because of quicker transport — is not in accordance with law and that Section 80 CrPC must be complied with in every case.

Justice Satapathy also addressed the distinction between “apprehension” and formal “arrest.” Section 43(1) of the BNSS (Section 46 CrPC) defines arrest as the actual touching or confining of the body of the person, or submission to custody by word or action. The Court held that the petitioner was arrested the moment he was apprehended at 4 PM on 16 March 2024. The IO's decision to formally record the arrest only at 2 PM on 18 March 2024 after reaching Raighar was legally irrelevant. The clock under Section 58 of the BNSS started at 4 PM on 16 March 2024.

Calculating the detention period: the petitioner was in custody from 4 PM to 9 PM on 16 March 2024 (5 hours before the journey commenced). After the team reached Raighar at 7 AM on 18 March 2024, the petitioner remained in custody until he was produced before the Court at 10 AM on 19 March 2024 (a further 27 hours). Excluding the journey time, the total pre-production detention was 32 hours — beyond the 24-hour constitutional limit.

The Court found that the IIC's affidavit offered no explanation for why the petitioner was not taken to the nearest Magistrate immediately after apprehension. The explanation about opposition from relatives and non-cooperation of local police might explain why the team left quickly, but it did not justify bypassing the nearest Magistrate entirely.

Relying on Directorate of Enforcement v Subash Sharma, 2025 SCC OnLine SC 240, Justice Satapathy held that once a Court finds that the fundamental rights of the accused under Articles 21 and 22 have been violated during or after arrest, it is the Court's duty to release the accused on bail because the arrest stands vitiated.

Six Directions to the State Administration

Beyond deciding the bail application, Justice Satapathy issued six guidelines to the State Administration and other stakeholders to govern arrests without warrant outside the jurisdiction of the registering Court.

Direction (i) requires that whenever a person is arrested without warrant outside the State or outside the jurisdiction of the registering Court for a cognizable offence, and unless the jurisdictional Court is within 30 kilometres of the place of arrest and production within 24 hours is ordinarily possible, the arrested person shall without unnecessary delay be produced before the nearest Judicial Magistrate to satisfy the constitutional and statutory rights under Article 22 and Sections 36, 47 and 48 of the BNSS (corresponding to Sections 41B, 50 and 50A of the CrPC).

Direction (ii) requires the Arresting Officer, after satisfying the nearest Magistrate of the formalities, to obtain a transit remand before removing the arrestee to the jurisdictional Court.

Direction (iii) requires the arresting officer to follow all guidelines on arrest and detention and to notify the local police about the arrest.

Direction (iv) requires the arresting officer to immediately inform the jurisdictional Court of the date, time and place of arrest through electronic means such as e-mail. The jurisdictional Court, on receipt of such information, shall reflect it in the record and later satisfy itself as to compliance with mandatory arrest and detention provisions when the accused is produced.

Direction (v) permits the Arresting Officer to take assistance of the local police and requires him to inform and request the local police to make an entry in the relevant register recording the date, time and fact of arrest.

Direction (vi) requires the Arresting Officer to forthwith inform the designated Police Officer in the district and in the district where the accused normally resides of the arrest and the place of detention.

The Court directed that a copy of the order be sent to the Additional Chief Secretary, Home Department, Odisha, and the Director General of Police, Odisha, for compliance. A soft copy was directed to be made available to all criminal Courts in the State, the Director of the Odisha Judicial Academy, and the Member Secretary of the Odisha State Legal Services Authority for guidance.

Order

BLAPL No. 8402 of 2025 was allowed. The petitioner was directed to be released on bail on furnishing bail bonds of Rs 50,000 with two solvent sureties each for the like amount, to the satisfaction of the Court in seisin of the case, on such terms and conditions as that Court deems fit.