Introduction

In Sabena Prakash v. State of Andhra Pradesh,^[1] a learned Division Bench of the High Court of Andhra Pradesh held that police who arrest a person in another State need not first obtain a transit remand from a local Magistrate. The High Court subjected this power to one limitation: the arrestee must be produced before the “jurisdictional” Magistrate within twenty-four hours, excluding travel time.^[2] To arrive at this conclusion, the Court read the phrase “nearest magistrate” in Article 22(2) of the Constitution^[3] as a measure of time rather than distance.^[4]

This article argues that the outcome can be defended on the statutory scheme of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS)^[5] and on settled habeas corpus doctrine. The constitutional reasoning, however, seems fragile. Erudite as the judgment is, Sabena Prakash distinguishes Priya Indoria v. State of Karnataka^[6] on a broader precedential principle. Besides, it sets no outer limit on inter-State custody without judicial oversight, and passes over the federal dimension of one State's police exercising coercive power inside another.

I. The Federal Frontiers

The inter-State arrest has become one of the most contested moments in Indian criminal procedure. A first information report (FIR) is registered in one State, the person named lives in another, and a police party drives across the border to bring him back. Each step tests a different safeguard. The first is the statutory authority of a State police force to act outside its territory. The second is the constitutional promise of prompt production before a Magistrate. The third is the arrestee's ability to have the legality of his arrest examined where it happened, before he is removed from the place where his family, lawyers and local courts are.

The Supreme Court has addressed parts of this problem. It has recognised transit anticipatory bail in Priya Indoria^[7] and characterised transit remand as police custody under Section 167 of the Code of Criminal Procedure, 1973 (CrPC),^[8] in Gautam Navlakha v. National Investigation Agency.^[9] Recent decisions such as Pankaj Bansal v. Union of India,^[10] Prabir Purkayastha v. State (NCT of Delhi)^[11] and Vihaan Kumar v. State of Haryana^[12] have also sharpened the consequences of breaching Article 22(1).^[13] The Court has not, however, decided whether a transit remand is mandatory when the jurisdictional Magistrate can be reached within the constitutional time limit. High Courts have divided on the question.^[14]

Sabena Prakash is the latest, and in some respects the boldest, answer from a High Court. I would like to examine the decision against three benchmarks: the text and purpose of Article 22(2), the architecture of the BNSS, and the federal structure within which police power is exercised. I reckon the judgment reaches a defensible result, but by a route that is fraught with interpretative potholes.

II. The Facts and the Decision

A. The Facts

The detenu, Dr. Ravi Prakash, a resident of Bengaluru, was engaged in protracted civil litigation over immovable property in Bengaluru. A first appeal was pending before the Karnataka High Court under a status quo order, and cross-FIRs between the parties had been stayed or suspended by that Court. Crime No. 229 of 2026 was then registered at Mydukur Police Station in Andhra Pradesh on 22 July 2026. The detenu was arrayed as the fifth accused on an allegation of conspiracy. As per the petitioner's case, he was not present at the scene, and no overt act was attributed to him.

On 30 August 2026, the Andhra Pradesh police took him into custody in Bengaluru and drove him to the place in Andhra Pradesh where the jurisdictional criminal court is located. He was not produced before any Magistrate in Karnataka. The same day, his wife lodged a complaint in Bengaluru (Crime No. 267 of 2026) alleging illegal apprehension and assault. On 31 August 2026, he was produced before the Judicial Magistrate of the First Class, Mydukur, who remanded him.

The writ petition sought habeas corpus and certiorari to quash the remand. At the hearing, the challenge narrowed to a single ground. Production before the jurisdictional Magistrate within twenty-four hours was not disputed. Counsel accepted that the grounds of arrest had been served in compliance with Article 22(1) and Mihir Rajesh Shah v. State of Maharashtra.^[15] The only contention left was that the absence of a transit remand from a Bengaluru Magistrate rendered the detention unconstitutional.

B. The Decision

The Court framed two points: whether production before the jurisdictional Magistrate within twenty-four hours, without a transit remand, violates Article 22(2); and, if so, whether the remand is invalid so as to justify habeas corpus.^[16] It answered the first in the negative and dismissed the petition. Its reasoning has four strands.

1. Priya Indoria, the recent decision of the Supreme Court of India, concerned transit anticipatory bail, and did not consider direct production before the jurisdictional Magistrate within the time limit.
   [17]
2. “Nearest magistrate” in Article 22(2) is “referable to 'time' and not the 'distance'”.^[18] Production before the jurisdictional Magistrate within twenty-four hours satisfies the guarantee, even if a non-jurisdictional Magistrate was physically closer.^[19]
3. Persuasive High Court authority supports this: Sat Prakash Yadav v. State (NCT of Delhi)^[20] and Uttam Daga v. Union of India.^[21] Muhammed Ashfaq C. v. Union of India
   ^[22] was read as finding a violation only where production occurs beyond twenty-four hours.^[23]
4. In any event, habeas corpus does not lie against detention under a judicial remand by a competent court unless the order is without jurisdiction, mechanical or wholly illegal, following Manubhai Ratilal Patel v. State of Gujarat.^[24]

The holding of the case is stated in these terms: “It is not mandatory to obtain transit remand to produce the arrested person before the Jurisdictional Magistrate for remand.”^[25]

III. Article 22(2) and the “Nearest Magistrate”

A. The Text

Article 22(2) requires that every person 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”.^[26] The clause sets two separate requirements: a destination (the nearest Magistrate) and a deadline (twenty-four hours, excluding journey time). The Court in Sabena Prakash merged them. On its reading, the nearest Magistrate is whichever one can be reached within the deadline.^[27]

This reading leaves the word “nearest” with no work to do. If “reachable within twenty-four hours” were the test, the deadline alone would do all the work. In that event, the Constitution could simply have said “a magistrate”, without the word “nearest”. The ordinary meaning of “nearest” is spatial, not temporal; but the Court held the converse. Courts ordinarily interpret, or if necessary read down, a provision to subserve a constitutional safeguard rather than stultify it. Such an interpretation is imperative, particularly where the question concerns a fundamental right—one framed to restrain executive or police power over personal liberty.

The journey-time exclusion makes the point sharper. The twenty-four hours exclude “the time necessary for the journey from the place of arrest to the court of the magistrate”. If the Magistrate in question may be any jurisdictional Magistrate, however distant, the exclusion grows with the distance. A person arrested in Guwahati in a case registered in Thiruvananthapuram could, on the Court's formula, be driven across the country for days without seeing a judge, provided that the time spent outside the vehicle stayed under twenty-four hours. A safeguard designed to bring the arrestee before a judge quickly would then depend on how far the police chose to travel. Literally speaking, once travel time is excluded, any two places across the country, or even the globe, are brought within the compass of twenty-four hours. The safeguard then sounds hollow.

B. The Purpose

Article 22 was not part of the original draft fundamental rights. It entered as draft Article 15A, moved by Dr. B.R. Ambedkar in September 1949, in response to criticism that the “procedure established by law” formula in what became Article 21 left personal liberty at the mercy of the legislature.^[28] Clause (2) was meant to secure early judicial scrutiny of executive detention. The nearest Magistrate is the one who can examine the arrest soonest, while the facts are fresh and the arrestee is still within reach of family and counsel.

Dr. Ambedkar's own explanation leaves little room for doubt. Replying to an amendment that would have required production before a “First Class Magistrate”, he explained that the words “the nearest Magistrate” had been used because “otherwise it would enable a police officer to keep a man in custody for a longer period on the ground that a particular Magistrate to whom he wanted to take the accused, or the Magistrate who would be ultimately entitled to try the accused, was living at a distance far away”.^[29] The framers anticipated, and rejected, the very reading that Sabena Prakash has now adopted.

The Bombay High Court, per a Division Bench, captured this in Vachhalabai v. State of Maharashtra.^[30] It held that the twenty-four-hour period is given in relation to the term “nearest magistrate” and cannot be read apart from it. It added that the nearest Magistrate “cannot be presumed as the Magistrate having jurisdiction over the crime”.^[31] The Court in Sabena Prakash extracted this paragraph^[32] but did not engage with its final sentence.

That omission matters, because the Bombay High Court did not stop at definition. Vachhalabai was a writ petition for compensation. Police from Karnataka had picked up the petitioner's husband at Parbhani in Maharashtra, interrogated him there, and driven him some 200 kilometres to Bhalki without producing him before any Magistrate in Maharashtra; he was produced before the Judicial Magistrate at Bhalki the next day.^[33] The State argued, as the State argued in Sabena Prakash, that production within twenty-four hours under Section 57 of the CrPC was enough.^[34] The Court rejected the argument. It held that the moment the accused is taken out of the jurisdiction of the nearest Magistrate, “his detention becomes unauthorized and illegal”, and that it does 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”.^[35] It also held that the exclusion of journey time is a concession for difficult travel, not “a power given to police to keep the person in their custody for 24 hours after the arrest”,^[36] and it awarded compensation against the Karnataka police.^[37] On materially the same question of law, backed by somewhat similar facts, two Division Benches of two High Courts have reached contrary conclusions.

C. The Facts of this Case Illustrate the Concern

The arrestee complained of assault during his apprehension, and a complaint was registered in Bengaluru the same day. Those are precisely the circumstances in which a Magistrate at the place of arrest serves the purpose of Article 22(2). That Magistrate can record the arrestee's condition, verify compliance with Article 22(1) and the BNSS, and decide whether removal from the State is justified. A Magistrate several hundred kilometres away, seeing the arrestee only after the journey, is not placed to do any of this. The concessions recorded in the judgment kept this issue off the record,^[38] but the general proposition laid down was stated without regard to it.^[39]

IV. The Statutory Architecture under the BNSS

The support for the Court's result must stem from the statute. Let us examine the relevant provisions of the BNSS. Section 45 permits the police to pursue a person “into any place in India” to arrest him without warrant.^[40] Section 57 mandates that the arrestee be taken before “a Magistrate having jurisdiction in the case” without unnecessary delay.^[41] Section 58 excludes journey time from the twenty-four-hour limit “in the absence of a special order” under Section 187.^[42] Notably, the BNSS adds to Section 58 the words “whether having jurisdiction or not”. Under Section 187, the accused must be forwarded to the “nearest Magistrate” (the CrPC said “nearest Judicial Magistrate”), who may remand whether or not he has jurisdiction.^[43]

Plainly put, Section 57 directs the arresting officer to take the arrestee before “a Magistrate having jurisdiction in the case”. Section 58 then caps police custody at twenty-four hours, excluding journey time, unless a Magistrate passes a “special order” under Section 187.

In Gautam Navlakha, the Supreme Court read the “Magistrate's Court” in the corresponding Section 57 of the CrPC as the court competent to try the case.^[44] On that reading, the transit remand is the special order that extends custody when the jurisdictional court cannot be reached in time. It is not a precondition to every inter-State removal.

The BNSS added the words “whether having jurisdiction or not” at the end of Section 58. This confirms that production may be before either a jurisdictional or a non-jurisdictional Magistrate. It does not, however, say that production before the jurisdictional Magistrate is always sufficient. Nor does it displace the separate requirement in Section 58 that detention be no longer than “under all the circumstances of the case is reasonable”.^[45] The judgment did not examine that requirement.

A second change deserves notice. Section 187(1) now refers to the “nearest Magistrate” where Section 167(1) referred to the “nearest Judicial Magistrate”.^[46] Whatever the reason, the BNSS still uses the spatial word “nearest” for the Magistrate to whom the accused is forwarded when investigation cannot be completed in twenty-four hours. The legislature did not adopt the time-based reading that the Court attributed to the Constitution.

The statutory route therefore leads to the Court's result, but by a narrower path. Production before the jurisdictional Magistrate within the Section 58 limit complies with the statute; a transit remand is required only when that limit cannot be met. That seems plain, but let us not forget that we are dealing with police powers in the context of a federal polity. It needs no reminding that “police” is a State subject.^[47]

V. Precedent: Priya Indoria, Gautam Navlakha and the High Court Divide

A. Priya Indoria

In Priya Indoria, a two-Judge Bench of the Supreme Court said twice, in terms, that the police are “obligated” to secure a transit remand upon arresting a person outside the jurisdiction where the offence is registered. It tied that obligation to “the requirement of Article 22”.^[48] The Court in Sabena Prakash distinguished these passages because the case concerned transit anticipatory bail.^[49]

That answer is incomplete. Even if the statements are obiter, considered observations of the Supreme Court are ordinarily followed by High Courts. The judgment also accepts the obligation, and again acknowledges that “the police may be obligated to take the transit remand”, before holding that it is not mandatory.^[50] It does not reconcile the two positions.

B. Gautam Navlakha

Gautam Navlakha held that a transit remand is an order under Section 167 authorising continued detention, and that the custody it authorises is police custody.^[51] Sabena Prakash relied on this to describe the transit remand as a mechanism for the police. That said, if a transit remand is a judicial authorisation of police custody, then a journey of hundreds of kilometres without one is police custody without any judicial authorisation at all. It is lawful only because, and only so long as, it stays within the Section 58 limit.

C. The High Court Divide

The High Courts have taken different positions. The Delhi High Court in Sat Prakash Yadav held that a transit remand was unnecessary where the accused could be brought from Noida to Delhi within an hour.^[52] The Patna High Court in Uttam Daga held that production before a local Magistrate is needed only where the journey is likely to exceed twenty-four hours.^[53] The Kerala High Court in Muhammed Ashfaq C. went the other way. It held that the first production must be before the nearest Magistrate, who must examine the legality of the arrest and compliance with Article 22(1).^[54] And the Bombay High Court had reached the same conclusion in Vachhalabai as early as 2019.

The Court in Sabena Prakash read the Kerala decision in its paragraph 14^[55] and concluded that it found a violation only where production occurs beyond twenty-four hours.^[56] That reading does not account for paragraphs 15 and 16 of the Kerala judgment, which rest on a different premise altogether.^[57] The petitioner relied on Pradip J. Mehta v. CIT^[58] for the proposition that a High Court should record its reasons when it differs from another High Court. The judgment applied that principle to the Delhi Committee's recommendations^[59] but not to the Kerala reasoning. The result is an unresolved conflict between High Courts on a question of constitutional liberty.

The conflict is wider than the judgment acknowledges. Five months before Sabena Prakash, the Orissa High Court decided Vepanjeri Dileep Kumar v. State of Odisha.^[60] The Odisha police had taken the petitioner into custody in Andhra Pradesh, some 1,260 kilometres from the jurisdictional court, and driven him back without producing him before any Magistrate there.^[61] The Court held that Article 22(2) is mandatory, draws no distinction between arrest with and without a warrant, and does not equate the “nearest Magistrate” with the Magistrate having jurisdiction over the case. The arrestee must reach the jurisdictional Magistrate within twenty-four hours, exclusive of journey time, but only “by taking authorization of the nearest Magistrate”.^[62] Counting the custody both before and after the journey, the Court found that the petitioner had been produced after thirty-two hours, held his arrest and detention illegal, and granted him bail.^[63]

Two features of that decision bear directly on Sabena Prakash. First, the Orissa High Court relied on a communication of the Ministry of Home Affairs, dated 16 May 2012, to the Chief Secretaries of all States. The Ministry had noticed the practice of police officers bringing an arrestee from another State straight back to their own Magistrate, a practice made possible by “quicker means of transport and also because the stipulated period of 24 hours excludes the journey time”, and had declared it “not in accordance with law”.^[64] That is the very practice Sabena Prakash approved. Secondly, the Court issued directions to the State: a person arrested without warrant outside the State must, save where the jurisdictional court lies within thirty kilometres of the place of arrest, be produced before the nearest Judicial Magistrate and removed only on a transit remand.^[65] Sabena Prakash does not refer to the Orissa decision. With Bombay, Kerala and Orissa now on one side, and Delhi, Patna and Andhra Pradesh on the other, the divide is too wide to be left to the High Courts.

VI. Federalism and Inter-State Police Power: Section 45 BNSS

A. The Federal Question the Court Did Not Ask

“Police” and “public order” are State subjects under Entries 1 and 2 of List II of the Seventh Schedule.^[66] A State police force derives its authority from the State legislation that constitutes it, and that authority is ordinarily territorial. When the Andhra Pradesh police took the detenu into custody in Bengaluru, they exercised coercive power inside Karnataka, a State whose police and courts had no part in the arrest. The Karnataka High Court was at that moment seized of the parties' civil and criminal disputes, with protective orders in force.

Parliament has shown in other statutes that it treats extra-territorial policing as a matter for consent and coordination. Under Section 6 of the Delhi Special Police Establishment Act, 1946, the Central Bureau of Investigation cannot exercise its powers in a State without that State's consent.^[67] The Code itself routes the execution of warrants outside the issuing court's territory through local authorities. Under Sections 81 to 83 of the BNSS (Sections 79 to 81 of the CrPC), a warrant for execution outside jurisdiction is ordinarily endorsed by a local Executive Magistrate or police officer, and the person arrested is taken before the local Magistrate or Superintendent of Police, who decides on removal.^[68]

Against this background, the transit remand does more than protect the individual. It is the point at which the courts of the host State review the visiting police force's action before the arrestee is removed from their territory. A rule that makes the transit remand optional whenever the deadline can be met removes that point of review, and with it the host State's judicial check—a constitutional protection, at that. Sabena Prakash treats the question purely as one of individual rights under Article 22(2). It does not consider the structural federal interest.

B. Section 45: Pursuit or General Licence?

The only provision the Court cited for the power of inter-State arrest is Section 45 of the BNSS. It reads: “A police officer may, for the purpose of arresting without warrant any person whom he is authorised to arrest, pursue such person into any place in India.”^[69] The Court paraphrased it as permitting the police to arrest “an individual anywhere in India”.^[70] That paraphrase follows Priya Indoria and Gautam Navlakha.^[71] As far as I am aware, however, the Supreme Court has never construed the word “pursue” in this provision or in its predecessor, Section 48 of the CrPC.^[72]

There is a strong textual case for reading Section 45 narrowly. “Pursue” is a verb of movement: to follow in order to overtake or capture. The object is pursued “into” another place, which presupposes a person who moves from within the officer's jurisdiction into another. The heading speaks of “pursuit of offenders into other jurisdictions”.^[73] On this reading, Section 45 meets a specific mischief. It ensures that the police need not stop at a border when a suspect crosses it to escape. It does not authorise a planned operation to seize, in his home State, a person who was never within the arresting officer's jurisdiction.

The structure of the Code supports this reading. If Section 45 were a general licence to arrest without warrant anywhere in India, the safeguards for executing warrants outside jurisdiction could be avoided simply by not obtaining a warrant. A person arrested on a court's warrant in another State would then receive local endorsement and local production, while a person arrested on the police's own decision would receive neither. Statutes are not ordinarily read to produce the result that the less scrutinised power carries fewer safeguards. The Bombay High Court drew precisely this comparison in Vachhalabai. Having examined the provisions governing warrants executed outside jurisdiction, it observed that even a court's warrant cannot be executed without informing the local police, and held that “[a] person who is arrested without warrant cannot be treated differently”.^[74] The contrast with Section 61 of the BNSS reinforces the point from the other direction. Where the Code contemplates hot pursuit of an escaped prisoner, it says “immediately pursue”;^[75] Section 45 contains no such qualifier, but it still speaks of pursuing a person “into” a place.

C. The Counter-Arguments

The narrow reading faces real obstacles, and they should be stated plainly. First, Priya Indoria proceeded on the footing that the power to pursue under Section 48 is what makes transit anticipatory bail necessary.^[76] That case concerned precisely a person resident in one State who apprehended arrest by the police of another. Second, it may be argued that the power to arrest without warrant flows from Section 35 of the BNSS, which contains no territorial limit, so that Section 45 is facilitative rather than the source of the power.^[77] Third, a strict “chase” reading would leave uncovered an offender who quietly moves to another State after the offence, which is the very evasion Section 45 exists to prevent.

The second objection can be met. A police officer's territorial competence comes from the State legislation that constitutes the force, and Section 35 says who may be arrested, not where. Section 45 is the Code's exception to territorial limits, and an exception is construed by its terms. The third objection can be met by a middle reading: “pursue” requires an active trail following the person from the jurisdiction, not necessarily a physical chase. Even on that reading, a person who was never within the jurisdiction has not been pursued “into” anywhere.

The facts of Sabena Prakash would have tested this argument well. The detenu lived in Bengaluru throughout, was not alleged to have been present at the scene in Andhra Pradesh, and was implicated only as a conspirator. The point was not argued, and the Court cannot be faulted for not deciding it. It remains open, and it deserves authoritative resolution.

VII. Habeas Corpus and the Curative Effect of Remand

The Court's second holding is on firmer ground. Relying on Manubhai Ratilal Patel, it held that habeas corpus will not issue against detention under a judicial remand by a competent court unless the order is without jurisdiction, passed mechanically, or wholly illegal.^[78] The same principle appears in Serious Fraud Investigation Office v. Rahul Modi,^[79] which the judgment did not cite. In habeas corpus, the legality of detention is judged on the order under which the person is held when the court examines the return, not on how he came to be held.

That principle does not, however, end every inquiry. The Supreme Court's recent decisions have drawn a line between irregularities in the manner of arrest and defects that go to the arrest's constitutional validity. In Pankaj Bansal and Prabir Purkayastha, a failure to supply grounds of arrest in writing vitiated the arrest and the remands that followed.^[80] In Vihaan Kumar, the Court held that a Magistrate who finds a breach of Article 22(1) must order release forthwith, and that a later remand does not cure the breach.^[81] The Supreme Court had said much the same of the duty of production a quarter of a century earlier. In Manoj v. State of M.P., it held that Section 167(1) casts on the police “a legal obligation to forward the arrested accused to the nearest Magistrate”, that detention beyond twenty-four hours without such production is unlawful, and that “no such excuse has been recognized by law” for the failure.^[82] Applying Manoj, the Bombay High Court in Vachhalabai refused to treat later production before the jurisdictional Magistrate as curing the removal of the arrestee from the place of arrest.^[83] An arrest that violates Article 22 is not saved by the competence of the court that later remands the arrestee.

The question in Sabena Prakash was therefore not only whether the Mydukur Magistrate had jurisdiction to remand. It was also whether the arrest and removal from Bengaluru complied with Article 22. Once counsel conceded compliance with Article 22(1), and the Court held that Article 22(2) did not require a transit remand, the Manubhai principle followed naturally. Had the Court held that Article 22(2) required production before a Bengaluru Magistrate, the remand at Mydukur would not have cured the breach.

This is why the reasoning on Article 22(2) matters beyond the facts. If a later remand could cure a breach of clause (2), the constitutional requirement would become unenforceable in practice. Any breach would be cured by the first remand obtained at the destination. The curative principle is legitimate only if the underlying constitutional requirement is read correctly. That makes the “time, not distance” reading the focal point of the judgment.^[84]

VIII. Assessment and a Way Forward

A. Was the Case Correctly Decided?

I do not wish to dwell on the duality of whether the case was decided correctly or incorrectly. A decision binds the parties; transformed into a precedent, the same decision governs the future. I intend to comment on this judgment, which is analytically sound and erudite on principles, only in the context of constitutional safeguards and federal principles.

The proposition that “nearest magistrate” means the Magistrate reachable within twenty-four hours reads a word out of a fundamental right. On this count, Sabena Prakash diverges from Priya Indoria and Vachhalabai. It also supplies no outer limit on journey time and ignores the federal interest served by local judicial review. If followed, it would allow any State police force to remove a person from another State over any distance without a judge—in the arrestee's jurisdiction or immediate vicinity—ever examining the legality of the arrest until the arrestee is produced before the “jurisdictional” magistrate—a valuable judicial oversight goes missing.

IX. Conclusion

Article 22(2) does two jobs in an inter-State arrest. It protects the individual against unsupervised custody, and it brings the courts of the State of arrest into a decision that would otherwise be taken entirely by another State's police. Reading “nearest” as a matter of time weakens both functions. Reading Section 45 of the BNSS as a general licence to arrest anywhere, which the judgment assumed without examining, weakens the second further still.

On this issue, the High Courts have spoken with different voices. Delhi, Patna and Andhra Pradesh hold the transit remand to be a fallback. Bombay, Kerala and Orissa treat production before the nearest Magistrate as the constitutional norm, and the Orissa High Court has directed a transit remand in every arrest without warrant outside the State, save where the jurisdictional court lies within thirty kilometres. The Ministry of Home Affairs took the same view as long ago as 2012. The Supreme Court has not construed “pursue” in Section 45 or its predecessor. A reference that settles both the meaning of “nearest magistrate” and the scope of the power of inter-State pursuit would give police forces a clear rule and arrestees a reliable safeguard. Sabena Prakash may well be a suitable vehicle for that question to reach the Apex Court.

The author is a retired Judge and a Senior Advocate practising in the Supreme Court of India.

1. Sabena Prakash v. State of Andhra Pradesh, W.P. No. 26235 of 2026 (Andhra Pradesh High Ct. Oct. 13, 2026). Reported in LiveLaw on 5^th October 2026. ↑

2. Id. paras 34, 49. ↑

3. India Const. art. 22, cl. 2. ↑

4. Sabena Prakash, W.P. No. 26235 of 2026, para 34. ↑

5. Bharatiya Nagarik Suraksha Sanhita, 2023, No. 46, Acts of Parliament, 2023 [BNSS]. ↑

6. Priya Indoria v. State of Karnataka, (2024) 4 SCC 749. ↑

7. Id. ↑

8. Code of Criminal Procedure, 1973, § 167, No. 2, Acts of Parliament, 1974 [CrPC]. ↑

9. Gautam Navlakha v. National Investigation Agency, (2022) 13 SCC 542. ↑

10. Pankaj Bansal v. Union of India, (2024) 7 SCC 576. ↑

11. Prabir Purkayastha v. State (NCT of Delhi), (2024) 8 SCC 254. ↑

12. Vihaan Kumar v. State of Haryana, 2025 INSC 162. ↑

13. India Const. art. 22, cl. 1. ↑

14. See infra Part V.C. ↑

15. Mihir Rajesh Shah v. State of Maharashtra, (2026) 1 SCC 500. ↑

16. Sabena Prakash, W.P. No. 26235 of 2026, para 13. ↑

17. Id. paras 25–27. ↑

18. Id. para 34. ↑

19. Id. paras 33, 36. ↑

20. Sat Prakash Yadav v. State (NCT of Delhi), 2014 SCC OnLine Del 3012. ↑

21. Uttam Daga v. Union of India, CWJC No. 196 of 2025 (Patna High Ct. Apr. 8, 2025). ↑

22. Muhammed Ashfaq C. v. Union of India, 2026 SCC OnLine Ker 13044; 2026:KER:66077 (Kerala High Ct. Aug. 21, 2026). ↑

23. Sabena Prakash, W.P. No. 26235 of 2026, paras 37–42. ↑

24. Manubhai Ratilal Patel v. State of Gujarat, (2013) 1 SCC 314; Sabena Prakash, W.P. No. 26235 of 2026, paras 51–52. ↑

25. Sabena Prakash, W.P. No. 26235 of 2026, para 49. ↑

26. India Const. art. 22, cl. 2. ↑

27. Sabena Prakash, W.P. No. 26235 of 2026, para 34. ↑

28. See 9 Constituent Assembly Debates (Sept. 15, 1949) (statement of Dr. B.R. Ambedkar). ↑

29. 9 Constituent Assembly Debates (Sept. 15–16, 1949) (statement of Dr. B.R. Ambedkar on clause (2) of draft Article 15A). ↑

30. Vachhalabai v. State of Maharashtra, 2019 SCC OnLine Bom 2937. ↑

31. Id. para 26. ↑

32. Sabena Prakash, W.P. No. 26235 of 2026, para 35. ↑

33. Vachhalabai, 2019 SCC OnLine Bom 2937, paras 12, 14, 17. ↑

34. Id. para 16. ↑

35. Id. para 56; see also id. para 55. ↑

36. Id. para 40. ↑

37. Id. para 69. ↑

38. Sabena Prakash, W.P. No. 26235 of 2026, para 44. ↑

39. Id. para 34. ↑

40. BNSS § 45. ↑

41. Id. § 57. ↑

42. Id. § 58. ↑

43. Id. § 187(1)–(2); cf. CrPC § 167(1)–(2). ↑

44. Gautam Navlakha, (2022) 13 SCC 542, para 89. ↑

45. BNSS § 58. ↑

46. Compare BNSS § 187(1), with CrPC § 167(1). ↑

47. India Const. sched. VII, list II, entries 1–2. ↑

48. Priya Indoria, (2024) 4 SCC 749, paras 88–89. ↑

49. Sabena Prakash, W.P. No. 26235 of 2026, paras 25–26. ↑

50. Id. paras 27, 36. ↑

51. Gautam Navlakha, (2022) 13 SCC 542, paras 93, 95. ↑

52. Sat Prakash Yadav, 2014 SCC OnLine Del 3012. ↑

53. Uttam Daga, CWJC No. 196 of 2025. ↑

54. Muhammed Ashfaq C., 2026 LiveLaw (Ker) 465, paras 15–17. ↑

55. Id. para 14. ↑

56. Sabena Prakash, W.P. No. 26235 of 2026, para 41. ↑

57. Muhammed Ashfaq C., 2026 LiveLaw (Ker) 465, paras 15–16. ↑

58. Pradip J. Mehta v. Commissioner of Income Tax, (2008) 14 SCC 283. ↑

59. Sabena Prakash, W.P. No. 26235 of 2026, paras 45–46. See also Sandeep Kumar v. State (NCT of Delhi), W.P. (Crl.) No. 2189 of 2018 (Delhi High Ct. Dec. 12, 2019). ↑

60. Vepanjeri Dileep Kumar v. State of Odisha, BLAPL No. 8402 of 2025 (Orissa High Ct. May 11, 2026). ↑

61. Id. paras 11–12. ↑

62. Id. para 10. ↑

63. Id. paras 14–15 (citing Directorate of Enforcement v. Subhash Sharma, 2025 SCC OnLine SC 240). ↑

64. Vepanjeri Dileep Kumar, BLAPL No. 8402 of 2025, para 9 (quoting Letter No. 24013/33/Misc./2012-CSR.III from the Ministry of Home Affairs, Government of India, to the Chief Secretaries of all States (May 16, 2012)). ↑

65. Vepanjeri Dileep Kumar, BLAPL No. 8402 of 2025, para 16. ↑

66. India Const. sched. VII, list II, entries 1–2. ↑

67. Delhi Special Police Establishment Act, 1946, § 6, No. 25 of 1946. ↑

68. BNSS §§ 81–83; CrPC §§ 79–81. ↑

69. BNSS § 45. ↑

70. Sabena Prakash, W.P. No. 26235 of 2026, para 19. ↑

71. Priya Indoria, (2024) 4 SCC 749, para 88; Gautam Navlakha, (2022) 13 SCC 542, para 88. ↑

72. CrPC § 48. ↑

73. BNSS § 45 (marginal heading). ↑

74. Vachhalabai, 2019 SCC OnLine Bom 2937, paras 44, 54. ↑

75. BNSS § 61. ↑

76. Priya Indoria, (2024) 4 SCC 749, para 88. ↑

77. BNSS § 35. ↑

78. Sabena Prakash, W.P. No. 26235 of 2026, paras 51–52. See Manubhai Ratilal Patel, (2013) 1 SCC 314. ↑

79. Serious Fraud Investigation Office v. Rahul Modi, (2019) 5 SCC 266. ↑

80. Pankaj Bansal, (2024) 7 SCC 576; Prabir Purkayastha, (2024) 8 SCC 254. ↑

81. Vihaan Kumar, 2025 INSC 162. ↑

82. Manoj v. State of Madhya Pradesh, (1999) 3 SCC 715, paras 9, 13–14. ↑

83. Vachhalabai, 2019 SCC OnLine Bom 2937, paras 56, 58. ↑

84. Sabena Prakash, W.P. No. 26235 of 2026, para 34. ↑