Bail in Bailable Offences Is an Inviolable Right under BNSS: Rajasthan High Court condemns mechanical remand and mandates accountability for unlawful arrests

Case Comment on: Meetu Pareek W/o Shri Ravi Pareek & Anr. v. State of Rajasthan [2025:RJ-JP:34119], S.B. Cr. Misc. Bail Application No. 8249/2025 (Rajasthan High Court, Jaipur Bench, 27 August 2025)

Introduction

This order of the Rajasthan High Court (Justice Anil Kumar Upman) arises from a bail proceeding that has become an occasion for the Court to restate first principles of personal liberty and due process under Article 21 of the Constitution, and to enforce institutional accountability under the new procedural regime of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS).

The petitioners, Meetu Pareek and Indu Verma, were arrested on 16 June 2025 for offences which, as consistently recorded in the arrest memos, case diary, and factual reports, were bailable. Despite the bailable nature of the accusations, the Magistrate declined bail under Section 480 BNSS and extended police/judicial custody; the Additional District & Sessions Judge (ADJ) also rejected bail, citing Section 439 of the Code of Criminal Procedure, 1973 (CrPC). The petitioners remained in custody for 43 days before the High Court allowed their bail application on 28 July 2025.

When granting bail, the High Court called for explanations from the concerned Magistrate and the ADJ. In the present order dated 27 August 2025, the Court examines those explanations and records robust findings on:

The non-negotiable right to bail in bailable offences;
The impermissibility of “mechanical” remand orders and post-facto rationalisations;
The constitutional centrality of personal liberty and the obligation to apply judicial mind;
The distinction between the power to arrest and its responsible use under Section 35 BNSS;
Institutional accountability of investigating officers and the subordinate judiciary.

Summary of the Judgment

The Court finds that the petitioners were arrested for bailable offences and that the record placed before the Magistrate and the ADJ reflected only bailable offences.
The Magistrate and the ADJ rejected bail and extended remand without properly applying judicial mind; their orders were “mechanical”.
In their explanations to the High Court, the judicial officers attempted to rely on Section 309(2) of the Bharatiya Nyaya Sanhita, 2023 (BNS), described as a non-bailable offence. The High Court rejects this post facto justification because Section 309(2) BNS was not mentioned anywhere in the original bail-rejecting/remand orders.
Reaffirming Article 21 principles (with reliance on Maneka Gandhi v. Union Of India), the Court underscores that bail in bailable offences is a matter of right; it is not discretionary.
Drawing on Moti Ram v. State of M.P., the Court emphasizes that the power to arrest must be exercised judiciously and sparingly; the existence of power is not a license for its routine use.
The Court candidly acknowledges institutional delay in listing the High Court bail application (contributing to the 43 days of custody) given heavy pendency, and expresses regret for the detention in a bailable case.
Directions:
- Copy of the order to be sent to the Director General of Police (DGP); the DGP is to seek explanation from the Investigating Officer and take further action.
- Registrar (Judicial), Jaipur Bench, to place the matter before the concerned Guardian Judge.
- Petitioners are free to pursue legal remedies if they believe their fundamental rights have been infringed.

Analysis

Precedents Cited and Their Influence

The order explicitly relies on two landmark Supreme Court decisions to frame the constitutional and procedural contours of bail and arrest:

Maneka Gandhi v. Union Of India, AIR 1978 SC 597
This watershed ruling broadened Article 21’s guarantee beyond mere “procedure established by law,” insisting that such procedure must be “right, just and fair” and not “arbitrary, fanciful or oppressive.” The High Court invokes Maneka Gandhi to underscore that personal liberty, as a facet of Article 21, is a fundamental constitutional value—its curtailment demands strict fidelity to fair, reasonable, and non-arbitrary procedures. In the context of bail, this translates to:
- No deprivation of liberty absent legitimate legal basis and fair procedure;
- In bailable offences, where the statute confers a right to bail, the procedure must honor that right rather than subvert it through mechanical remand or unexplained detention.
Moti Ram v. State of M.P., (1978) 4 SCC 47
Moti Ram is a seminal authority on the philosophy of bail, emphasizing that bail jurisprudence must serve the ends of liberty and fairness, not become an instrument of oppression. It cautions against the routine, unreasoned use of coercive powers, and insists that bail conditions and decisions consider the realities of the accused and the proportionality of restrictions. The High Court relies on Moti Ram to articulate a central theme of this order: the legal power to arrest does not by itself justify its use; such use must be a judicious, last-resort measure, especially where the alleged offences are bailable.

Together, these authorities inform the Court’s insistence on meaningful judicial scrutiny at the first production of an accused, the duty to avoid perfunctory remand, and the primacy of liberty in procedural decisions—especially under the new BNSS framework.

Legal Reasoning

Bailable offences: bail as a matter of right under BNSS
The Court reiterates the bedrock proposition that for bailable offences, bail is a matter of right—once the accused is prepared to furnish the requisite bond/surety, neither the police nor the court may deny bail. Under BNSS (successor to CrPC), this mirrors the substance of erstwhile Section 436 CrPC. The Court thus treats the subordinate courts’ refusal of bail as a fundamental error, not a mere misapplication of discretion.
Mechanical remand is impermissible; application of judicial mind is mandatory
On the first day of production, the Magistrate must examine the case diary and materials to form a prima facie view sufficient to decide the necessity of police/judicial custody. While a meticulous evidentiary evaluation is not expected, the law requires a recorded, reasoned, and individualized application of mind. The Court finds this duty was not discharged—both the Magistrate and the ADJ disposed of the bail pleas in a “casual” and “mechanical” manner.
Record speaks for itself; post facto justifications cannot cure defective orders
The explanations submitted tried to justify the denial of bail by invoking Section 309(2) of the BNS (described as a non-bailable offence). The Court rejects this because the remand/bail rejection orders never mentioned Section 309(2) BNS. A crucial procedural discipline is reaffirmed: an order must stand or fall on its recorded reasons. Explanations cannot retrospectively import non-bailable offences to justify prior detention.
Power to arrest versus its use: Section 35 BNSS
The Court distinguishes between the legal authority to arrest and the justified use of that authority. Section 35 BNSS (the BNSS analogue to erstwhile Section 41 CrPC) codifies the necessity and proportionality criteria for arrest: reasonable belief in complicity, need to prevent further offences, prevent evidence tampering, or deter witness influence, among others. The Court emphasizes that arrests in bailable cases—particularly where less intrusive alternatives exist—must be exceptional, not routine. This aligns with Moti Ram’s insistence on restraint and with broader human rights guidance.
Article 21’s guarantee of personal liberty
The order devotes considerable attention to the concept of personal liberty: it is a “priceless treasure,” central to a dignified existence. The Court situates its procedural rulings within this constitutional ethos, observing the profound psychological, reputational, and financial harms caused by unjustified arrests and detentions.
Institutional candour and accountability
Two notable features heighten the systemic import of this order:
- The High Court acknowledges that heavy bail pendency delayed the hearing and contributed to prolonged custody, expressing regret for the 43 days of detention in a bailable case.
- Directions for accountability: the DGP must seek an explanation from the Investigating Officer and take appropriate action; the Registrar (Judicial) must place the matter before the Guardian Judge—signalling supervisory oversight over subordinate courts.

Impact and Prospective Significance

While the legal propositions are established, the order’s significance lies in how it operationalizes them in the BNSS era and embeds accountability into everyday bail practice:

For Police/Investigating Officers: Arrest in bailable cases will attract scrutiny. Section 35 BNSS’s necessity test is not a formality. Routine arrests, especially where a notice of appearance or bond would suffice, risk departmental action. The DGP-directed inquiry here creates a precedent for administrative follow-through.
For Magistrates and Sessions Courts: Remand and bail orders must reflect an applied judicial mind. The record must disclose the exact offences justifying custody, with reasons. Post facto explanations cannot repair an unreasoned order. The “mechanical remand” critique has implications for training, performance review, and judicial administration.
For Public Prosecutors: They must assist the court with a correct and complete offence matrix, clarify bailable/non-bailable classification, and avoid seeking remand absent statutory basis—particularly under the stricter BNSS arrest/remand ethos.
For Defence Counsel: The order reinforces the strategic importance of foregrounding the bailable nature of accusations, insisting on police-station bail where applicable, and pressing the court to record reasons.
For Court Administration: The High Court’s candid acknowledgment of listing delays and its prioritization imperative may spur bail-triaging practices, ensuring bailable cases are heard promptly.
Transitional Clarity (BNSS replacing CrPC): The order reflects lingering dual references (BNSS Sections 480/483 and CrPC Section 439). The clear message is that, irrespective of citation, the substantive right remains: bail in bailable offences is not discretionary. Courts should ensure consistency with BNSS numbering and content.
Constitutional Remedies: By leaving the door open for petitioners to pursue legal recourse for infringement of fundamental rights, the order implicitly acknowledges the availability of public law compensation (constitutional tort) and other remedies where unlawful deprivation of liberty is established.

Complex Concepts Simplified

Bailable vs. Non-bailable Offences

Bailable: The law entitles the accused to be released on bail, as of right, upon furnishing bond/surety. The police and the court are obliged to grant bail.
Non-bailable: Bail is not a right; it is discretionary. Courts evaluate factors such as gravity, risk of absconding, tampering with evidence, etc.

Police Station Bail in Bailable Cases

In bailable offences, the police themselves can and should release the accused on bail upon execution of a bond/surety, without insisting on court remand unless some exceptional statutory ground exists. This minimizes unnecessary detention.

Power to Arrest vs. Use of Power (Section 35 BNSS)

Power: The legal authority to arrest exists under defined statutory conditions.
Use: Exercising that power requires a reasoned necessity assessment—e.g., to prevent further offences, protect evidence, or ensure appearance. Arrest is not to be employed by default, especially in bailable matters.

Remand and “Application of Judicial Mind”

When the police produce an accused, the Magistrate must review the case diary/materials and record reasons for authorizing custody or granting bail. A “mechanical” or non-speaking order—simply rubber-stamping police requests—violates due process.

BNSS and BNS: What Are They?

BNSS (Bharatiya Nagarik Suraksha Sanhita, 2023): India’s new procedural criminal code replacing the CrPC, governing arrest, investigation, bail, and trial.
BNS (Bharatiya Nyaya Sanhita, 2023): India’s new substantive criminal law replacing the IPC, defining offences and punishments.

Guardian Judge

A High Court Judge designated to exercise administrative and supervisory oversight over the subordinate judiciary in a given district/unit. Placing the matter before the Guardian Judge flags concerns warranting systemic corrective action.

Additional Context (Not Cited, But Jurisprudentially Aligned)

Although not cited in this order, the High Court’s approach resonates with the Supreme Court’s broader bail and arrest jurisprudence, including:

Hussainara Khatoon line of cases: personal liberty and speedy trial as integral to Article 21;
Gurbaksh Singh Sibbia and subsequent decisions: bail as the rule, jail the exception;
Arnesh Kumar v. State of Bihar: restraint in arrests for offences punishable up to seven years, requiring justification and compliance with arrest checklists;
Satender Kumar Antil v. CBI: graded bail guidelines and discouraging unnecessary arrests;
D.K. Basu v. State of West Bengal: arrest and detention safeguards.

The present order gives these constitutional commitments fresh procedural teeth under BNSS by insisting on record-based reasons, restraint in arrest, and accountability for lapses.

Key Takeaways and the Rule Emanating from the Decision

In bailable offences, bail is a right; denial or remand in such cases without cogent, recorded reasons is illegal and violates Article 21.
Judicial orders must speak from the record; post facto explanations cannot supply missing reasons or offences.
Power to arrest must be exercised with necessity and proportionality (Section 35 BNSS), not as a routine measure.
Magistrates must actively scrutinize the case diary/materials at first production; “mechanical remand” is impermissible.
Institutional accountability applies across the chain: investigating officers, prosecutors, defence counsel, and judges.
Administrative directions to the DGP and to the Guardian Judge reflect the Court’s commitment to systemic correction.

Conclusion

Meetu Pareek v. State of Rajasthan is a strong reaffirmation—now under the BNSS dispensation—of the inviolable character of bail in bailable offences and the constitutional centrality of personal liberty. The High Court’s refusal to accept after-the-fact justifications for prior remand orders is particularly significant: it demands transparency, contemporaneous reasoning, and fidelity to the record.

By coupling doctrinal clarity with concrete accountability directions, and by acknowledging systemic delays candidly, the Court sets a practical standard for arrest and remand conduct in everyday criminal process. The immediate lesson is simple yet profound: liberty is the rule; restraint is the method; reasons are the safeguard. Any departure must be justified on the face of the order—nothing less will do.

Note on citations: The order references Section 480 BNSS (bailable bail) and, in places, Section 483 BNSS/Section 439 CrPC for superior court bail powers. The BNSS has replaced the CrPC; courts and practitioners should ensure consistency in citing and applying BNSS provisions.