1. Instant petition is filed by the petitioner assailing the impugned order dated 28th July, 2026 passed in connection with C.T. No.20 of 2026 by the learned J.M.F.C.-IV (Cog. Taking), Bhubaneswar with consequential relief sought for on the grounds inter alia that the action of the I.O. in arresting and forwarding him in Badagad P.S. Case No.13 of 2026 without compliance of the mandatory requirements stipulated in Sections 35, 36, 47, 48, 62 and 187(1) BNSS to be declared as arbitrary, unconstitutional and violative of Articles 21 & 22 of the Constitution of India and to ensure his release from the judicial custody on such terms and conditions as would be fixed by this Court.

2. Briefly stated, the petitioner challenges the arrest as illegal for violation of the constitutional and statutory safeguards and therefore, it suffers from manifest error apparent on the face of the record, hence, the same is liable to be quashed. In fact, the petitioner is arrested in connection with the case registered under Sections 296, 316(2), 318(2), 318(4), 336(3), 115(2), 61(2),109 and 3(5) of BNS. Initially, a complaint was filed and registered as 1.C.C. Case No.10450 of 2025 against the petitioner and others and then as Badagad P.S. Case No.13 of 2026 on 7th January, 2026. A copy of the FIR is at Annexure-2, wherein, the petitioner is shown one of the accused persons with three others named therein. The complaint was filed by the informant alleging therein that he is one of the shareholders of the joint family property more fully described therein which stands recorded in the name of their father, namely, Alekh Sahoo and he happens to be the eldest son, whereas, accused Nos.1 & 3, who is the petitioner herein deals with construction business in and around Bhubaneswar being the partners of M/s. DMS Habitat and two others are their wives. It is alleged that in the year 2019, the petitioner and the other accused partner persuaded the informant to part with the joint family property for the construction of a duplex housing project on sharing basis and assured that out of the said project, he would get more money than the market value of the land and believing the same, the proposal was accepted. After completion of the construction of duplex houses, the informant being the land owner was entitled to 35% of the share. In course of events, according to the informant, the petitioner and his partner did not pay him the balance amount of Rs.16 lac of the security money and when the project was to be completed in three years‟ time and about to be completed on the major part of the land acquired, it was found that the said accused persons already executed several sale deeds in favour of outsiders even exceeding the share of the developer by utilizing the Power of Attorney executed initially along with Development Agreement. With such other mischiefs alleged, the informant filed the complaint and subsequently, it was registered as Badagad P.S. Case No.13 of 2026.

3. In so far as the challenge to the impugned order at Annexure-1 is concerned, it is based on violation of the statutory and constitutional provisions at the time of arrest. It has been alleged that the FIR was registered and for more than six months thereafter, no meaningful investigation was conducted, inasmuch as, during the period between 7th January, 2026 till 22nd July, 2026, no step whatsoever was taken requiring the petitioner to participate in the investigation. Not only that, according to the petitioner, the I.O. did not issue any notice under Sections 93, 94, 179 or 180 BNSS calling upon him to appear to produce documents furnishing information or otherwise to co-operate in the investigation. The claim is that the petitioner was never afforded an opportunity to be a part of the investigation through the procedure contemplated under the BNSS. It is pleaded that the I.O. failed to comply the mandatory requirements of law contained in Section 35 BNSS, for the fact that, no notice was issued to him before depriving his personal liberty and hence, the arrest was resorted to without exhausting the statutory safeguards. It is alleged that on 22nd July, 2026 at about 11 PM, the I.O. and other police officials of Badagad P.S. suddenly arrived at the residence of the petitioner, forcibly took him with them, and confined in a police lock-up throughout the night and as such, no lawful procedure has been followed and was shown as arrested on 23rd July, 2026 at 5.00 AM and was forwarded to the learned court below. The other ground of challenge is that the I.O. did not submit the case diary before the Court below notwithstanding such requirement under Section 187(1) BNSS along with the copies of the forwarding report, checklist and arrest note prepared by the I.O. in the case which are at Annexure-3 series.

                  3.1. Immediately upon production before the learned court below, the petitioner questioned the legality of the entire process by filing an application specifically alleging therein that the arrest and remand are vitiated on account of non-compliances under Sections 35, 36, 47, 48, 62 and 187(1) BNSS besides infringing upon his fundamental rights guaranteed under Articles 21 and 22 of the Constitution of India. It has been pleaded that there has been complete violation of the provisions dealing with arrest and remand but the learned court below even after a plea raised rejected the application with a conclusion that the forwarding report satisfied that the arrest is made after due compliance of Section 35(1)(b)(ii) BNSS and declined to release the petitioner on the premise that he is alleged of having committed an economic offence and also for the severity of the offence besides propensity of him to evade the process of law and may even abscond and also tamper with the evidence during the investigation since possessed of substantial wealth. The aforesaid order is under challenge by the petitioner on the ground that the learned court below failed to consider the application filed by the petitioner properly having regard to the plea about illegal arrest and therefore, the impugned order dated 28th July, 2026 at Annexure-1 deserves to be set aside with consequential directions issued by this Court.

4. Heard Mr. Mohapatra, learned Senior Advocate appearing along with Mr. Satpathy, learned counsel for the petitioner and Mr. Panda, learned ASC for the State besides Mr. Sarangi, learned counsel for the informant.

5. Recorded the submissions of learned counsel for the respective parties. Gone through the case laws relied on from the side of the petitioner and response to the same by the State and the informant.

6. Mr. Mohapatra, learned Senior Advocate would submit that there was no investigation for six months since the FIR was registered and the petitioner was never ever summoned and suddenly came to be arrested. The further submission is that the petitioner‟s arrest is illegal and as a necessary corollary, the remand order by the learned court below. The contention is that the application of the petitioner was not considered in its proper perspective when the plea is entirely related to the arrest without following the mandatory provisions of law. The submission is that even at the time of forwarding of the petitioner by the Jurisdictional Court, it was without a case diary in stark violation of Section 167(1) Cr.P.C. read with 187 BNSS and hence, the remand made thereto is illegal and unconstitutional.

                  6.1. The further contention is that the mandatory provisions of Section 41-A Cr.P.C. embodied in Section 35(3) BNSS is obligatory for securing the rights of the arrestee guaranteed under Articles 14, 21 & 22 of the Constitution of India and any such dereliction and non-compliances would entitle him to bail and Mr. Mohapatra, learned Senior Advocate in that connection refers to the decision of the Apex Court in Satender Kumar Antil Vrs. CBI and another 2022 SCC OnLine SC 825. Referring to the above decision, it is also contended that it is the duty of this Court to ensure that such compliances are scrupulously followed by the Sub-ordinate Courts and that where the offences are punishable with imprisonment up to 7 years, issuance of notice under Section 35(3) BNSS is the rule and arrest is an exception, inasmuch as, the Investigating Agency is to consider the necessity of arrest. Another limb of argument is that there exists a constitutional mandate upon the authorities to communicate the grounds of arrest distinct from reasons of arrest indicated in the arrest memo and intimation note and for that, Mr. Mohapatra, learned Senior Advocate cites a decision in Prabir Purkayastha Vrs. State (NCT of Delhi) 2024 SCC OnLine SC 934. The further argument is that the very burden of proving compliance vis-à-vis Article 22(1) of the Constitution lies with the investigating authority and for that, the Magistrate is duty bound to ascertain whether it has been adhered to and in support of such contention, the decision of the Apex Court in Vihaan Kumar Vrs. State of Haryana and another 2025 SCC OnLine SC 269 has been placed reliance on. It is reiterated by Mr. Mohapatra, learned Senior Advocate that the constitutional mandate of informing the arrestee of the grounds of arrest is mandatory in respect of all the offences and as per the decision (supra), it shall have to be communicated in the language understood by the arrestee and in the exceptional cases where immediate communication is not possible, oral intimation may suffice at the time of arrest subject to the grounds of arrest furnished within a reasonable time and to failure to comply the same would vitiate the arrest and the remand and in that case, the continuation of custody cannot be permissible and in that regard, a decision of the Apex Court in Mihir Rajesh Shah Vrs. State of Maharashtra 2025 SCC OnLine SC 2356 is cited. Finally, it is contended that in the facts and circumstances of the case at hand, it would be just and proper for the non-compliances of the statutory requirements and procedural safeguards, the petitioner is entitled to be released as an interim measure and refers to a decision of the Apex Court in Arnab Manoranjan Goswami Vrs. State of Maharashtra and others (2021) 1 SCC 802. Mr. Mohapatra, learned Senior Advocate would submit that the petitioner is in custody at present for the statutory violations and for not upholding the constitutional mandate, hence, shall have to be discharged forthwith and released pending investigation in connection with Badagad P.S. Case No.13 of 2026.

7. On the contrary, Mr. Panda, learned ASC for the State submits that the application of the petitioner was duly considered by the learned court below and not that, there has been no reference with regard to his arrest and detention, rather, the impugned order at Annexure-1 reveals that such arrest and remand has not been considered as illegal with a conclusion that non-production of the case diary at the time of forwarding is only a procedural irregularity and it does not per se render the arrest unconstitutional when other materials on record disclosed the reasonable grounds of arrest. Mr. Panda, learned ASC further submits that the arrest of the petitioner is not vitiated on any such grounds and it has been dealt with by the learned court below while disposing of the application of the petitioner and therefore, the impugned at Annexure-1 is in accordance with law.

8. Mr. Sarangi, learned counsel for the informant narrates the allegations in the FIR and submits that considering the mischief committed by the petitioner, he was rightly arrested during investigation and was forwarded to the learned court below and there has been no violation of any of the provisions of the BNSS related to arrest and hence, the plea of non-compliances shall have to be rejected.

9. The petitioner questioned the remand order of the learned court below on the ground that his arrest itself is illegal and for the fact that no case diary was produced before the Magistrate at the time of production. Mr. Mohapatra, learned Senior Advocate contends that the learned court below mechanically remanded the petitioner without realizing the necessity in the compliance of Section 187(1) BNSS. In Manubhai Ratilal Patel through Ushaben Vrs. State of Gujarat & others (2013) 1 SCC 314, the Apex Court while dealing with a writ petition for Habeas Corpus, discussed the role of a Magistrate at the time of remand and therein, it has been observed that a decision on remand is a judicial function and he has to satisfy himself that there are reasonable grounds therefor with a satisfaction reached at that there are materials to justify the remand and while remanding an accused, it is obligatory to apply judicial mind to the facts of the case and not to direct remand by an order in a routine manner and referring to the same, according to Mr. Mohapatra, learned Senior Advocate, no case diary was submitted to the learned court below when the petitioner was forwarded and as such, there was no occasion to consider whether the remand would be proper or otherwise. The claim is that in absence of any materials placed before the Magistrate, the remand of the petitioner is illegal, inasmuch as, there has been no judicial application of mind but just a mechanical remand considering the allegations in the FIR. Referring to the decision in Central Bureau of Investigation, Special Investigation Cell-1, New Delhi Vrs. Anupam J. Kulkarni (1992) 3 SCC 141, Mr. Mohapatra, learned Senior Advocate refers to the provisions of the BNSS to claim that the mandatory requirement under Section 187 BNSS is a must and hence, cannot be avoided.

10. As earlier discussed, one of the grounds of challenge to the arrest of the petitioner is about forwarding him to the Court without case diary and according to Mr. Mohapatra, learned Senior Advocate, the same is in flagrant violation of the constitutional and statutory mandate as embodied in Section 167(1) Cr.P.C read with Section 187 BNSS and in such a situation, further remand has been illegal. Section 167 Cr.P.C. deals with the procedure when investigation cannot be completed in 24 hours and the powers of the Magistrate to authorize detention of an accused. In Anupam J. Kulkarni (supra), the Apex Court highlighted upon the significance of the role and responsibility of the Magistrate while considering the detention of accused and highlighted upon the legislative history with reference to the corresponding old provision of 1898 of the Code and the recommendations of the Law Commission vis-à-vis the power conferred on Magistrates. According to Section 167 Cr.P.C., in case, the investigation cannot be completed within 24 hours after the arrest of a person and there are grounds of believing that the accusation of information is well founded, a remand follows suit and at the same time, to transmit a copy of the entries in the case diary and thereafter, either he is to be released or remanded.

                  10.1. In the case at hand, it is alleged that at the time of such remand of the petitioner, the case diary had not been produced. From the order of the learned J.M.F.C. dated 28th July, 2026, it is made to understand that the written complaint, forwarding report detailing the allegations, the steps taken in the investigation and grounds of arrest and also non-cooperation of the petitioner in the investigation with materials existed in the record. According to the learned Magistrate, such non-production of case diary does not vitiate the arrest of the petitioner due to presence of other materials for consideration. Referring to the forwarding report, it has been held by the learned Magistrate that the same narrated in detail the steps taken in the investigation, information about presence of the accused etc. and considering the same, it has been held that though such materials are not substitute for the case diary but do constitute sufficient basis to justify the arrest and therefore, non-production of the case diary at the time of forwarding of the procedure is a procedural irregularity, which can be rectified and as such, the arrest does not become illegal or unconstitutional when on record, it disclosed more than reasonable grounds of his arrest and such argument advanced from the side of the prosecution was accepted with a conclusion that the arrest has been made in terms of and with due compliance of Section 35(1)(b)(ii) BNSS further having regard to the severity of the offences alleged and his propensity to evade the process of law.

11. In Anupam J. Kulkarni (supra), the Apex Court concluded that the provision is clear where a Magistrate exercising powers conferred thereunder may authorize the detention of the accused in custody and at the time, while considering such remand shall have to offer the reasons for so doing. Mr. Mohapatra, learned Senior Advocate submits that since the case diary was not made available to the learned Magistrate at the time when the petitioner was forwarded, the order of remand is illegal. As per Section 167 Cr.P.C, a copy of the entries of the case diary shall have to be transmitted to the Magistrate while forwarding the accused for consideration and orders as to whether he is to be released on bail or detained in custody. As per the said provision, it is mandatory that the police officer is to forward the case diary along with the accused to the Magistrate. According to this Court, failing to transmit a case diary while forwarding an accused makes the remand order procedurally flawed and legally vulnerable as it deprives the Magistrate of the materials required to judicially apply while considering whether detention is necessary. At the time of a judicial remand, all such materials collected so far it relates to investigation are required to be placed before the Magistrate, further to take a decision about the detention or in the alternative, for release. It is a judicial function of a Magistrate considering the materials submitted to him at the time when a person arrested is forwarded and to take a decision on remand. A judicial application of mind for the purpose of remand does mean examination of the materials received at the time when the accused is forwarded. In a catena of decisions, it has been held and observed by the Apex Court that remand is a solemn judicial function and not a mechanical exercise of a Magistrate, who must peruse the case diary and entries therein to objectively satisfy that a prima facie case exists and that further remand and detention of the accused is necessary. It could well be said that taking a decision for a remand without the perusal of case diary would lack proper jurisdictional backing and violate statutory safeguards. It does mean there shall have to be existence of foundational material to justify a remand in absence of which such detention of an accused may be challenged as illegal.

12. In the same breath, this Court is also of the view that failing to transmit the case diary does not automatically make initial remand illegal provided the Magistrate is otherwise satisfied from the forwarding report or such other materials placed before him to justify detention. In other words, if reasonable grounds exist for detention even in absence of a case diary not transmitted, considering the other materials on record, a Magistrate could remand the accused and such remand does not per se become illegal. In fact, the purpose of the case diary is to help the Magistrate to evaluate the factual scenario, check the necessity of detention and definitely, a judicial function. While sending the case diary is mandatory, but for failure to do so, an order of remand as a result is not rendered entirely without jurisdiction, if the Magistrate can still satisfy himself of the grounds of arrest and necessity of custody considering other materials on record and at times, absence of such materials can lead to refusal of remand or in the granting of bail to the accused. When an investigation cannot be completed within 24 hours and the police produce the accused before a Magistrate, who authorizes detention, transmitting the case diary entries is obligatory. While the Magistrate must receive the case diary, the accused does not have a right to inspect or demand it at the time of production since it could compromise the confidentiality of the investigation under Section 172(3) Cr.P.C. It is a material only for consideration of the Magistrate and not for public perusal or to share it with the defence at that stage. While transmitting the case diary is an obligation under law, failing to comply, in the considered view of this Court, is not always fatal. If the case diary is missing initially, a Magistrate should not authorize detention, however, a remand order passed without it can be challenged at any time thereafter. But sufficient grounds are made out with such other materials produced even in absence of case diary at the time of forwarding the accused and it justified the necessity of detention, a Magistrate can authorize and direct the same and it does not instantly invalidate the arrest itself or for that matter, the remand, but a prolonged or mechanical remand without the case diary is certainly to violate the safeguards of the personal liberty of the accused. In other words, the conclusion of the Court is that an accused cannot successfully plead for immediate release or invalidation of the remand solely based on the non-production of the case diary provided the forwarding report, remand application and accompanying materials sufficiently disclose the grounds of arrest and satisfy the Magistrate that the detention is well founded.

13. On a plain reading of Section 167 Cr.P.C. read with Section 187 BNSS, it is understood that the statutory requirement is for the I.O. to transmit the copies of the relevant entries of the case diary, but there is a distinction between the grounds of arrest, which is a fundamental constitutional mandate and the procedural maintenance/production of the case diary. Under Article 22(1) of the Constitution of India and Section 47 BNSS corresponding to Section 50 Cr.P.C., specific grounds of arrest shall have to be communicated directly to the accused and the same is mandated, whereas the case diary under Section 172 Cr.P.C. read with Section 192 BNSS is just a tool for the Magistrate to monitor the daily progress of the investigation and to verify if there is sufficient basis to authorize detention of the accused. To stake a claim that an arrest, production and remand in absence of case diary produced before a Magistrate at the time of such production invalidates the entire exercise if the police fails to produce the case diary at the time of initial production but provides a detailed forwarding report along with other materials like FIR, arrest memo etc., the Magistrate is not totally without jurisdiction to authorize remand. The primary duty of a Magistrate during production is to ensure that the arrest is not arbitrary. If the forwarding report and the documents transmitted along with it contain enough material to satisfy a Magistrate that the accusation is well founded, the legal requirement for remand is met. Having said that, this Court is in the considered view that temporary absence of production of case diary at the initial stage may be treated as a curable procedural defect, rather than a violation of one‟s fundamental right provided essential details justifying the arrest are placed before the Court for its consideration stating that the accusation is well founded. Absence of case diary, therefore, does not automatically entitle the person arrested to be set free. As earlier discussed, the accused has no statutory right to inspect or use the case diary at that stage of a proceeding and therefore, its non-production does not prejudice him to seek release from such detention.

14. In the present case, as made to understand from the order of learned J.M.F.C, there was satisfaction about the involvement of the petitioner in committing the alleged offences and the need and necessity for his detention accepting the argument advanced from the side of the prosecution that non-production of the case diary by itself cannot justify his release as there are other materials like forwarding report etc. proved sufficient basis to justify the arrest. A challenge to the detention may succeed if the police failed to state the grounds of arrest of the accused but if he was properly informed and the forwarding report effectively demonstrates the necessity of detention, lack of production of case diary at the initial stage is not a valid ground for release. The order of the learned Magistrate dated 28th July, 2026 considered the materials sent along with the petitioner and reached at a subjective satisfaction that the forwarding report thoroughly narrated the steps taken in the investigation and such other facts including non-cooperation of the petitioner in the investigation and therefore, there is a justification for his arrest or sufficient basis to justify the arrest. A memorandum of arrest with respect to the petitioner revealed and as held further that a respectable member of the locality was informed about the arrest. So, considering the materials transmitted at the time of initial production of the petitioner, since a satisfaction was reached at by the learned Magistrate that the arrest is proper and legal and directed the remand, hence, absence of case diary was not considered a ground to claim that the whole exercise is illegal.

15. It is profitable to the quote the relevant extract of the Apex Court decision in Manubhai Ratilal Patel Vrs. State of Gujarat and others (2013) 1 SCC 314 and the same is reproduced herein below:

                  “24. The act of directing remand of an accused is fundamentally a judicial function. The Magistrate does not act in executive capacity while ordering the detention of an accused. While exercising this judicial act, it is obligatory on the part of the Magistrate to satisfy himself whether the materials placed before him justify such a remand or, to put it differently, whether there exist reasonable grounds to commit the accused to custody and extend his remand. The purpose of remand as postulated under Section 167 is that investigation cannot be completed within 24 hours. It enables the Magistrate to see that the remand is really necessary. This requires the investigating agency to send the case diary along with the remand report so that the Magistrate can appreciate the factual scenario and apply his mind whether there is a warrant for police remand or justification for judicial remand or there is no need for any remand at all. It is obligatory on the part of the Magistrate to apply his mind and not to pass an order of remand automatically or in a mechanical manner.

                  25. It is apt to note that in Madhu Limaye, In re, it has been stated that:

                  12. Once it is shown that the arrests made by the police officers were illegal, it was necessary for the State to establish that at the stage of remand the Magistrate directed detention in jail custody after applying his mind to all relevant matters.”

16. In Rakesh Kumar Paul Vrs. State of Assam (2017) 15 SCC 67, the Apex Court observed as hereunder:

                  “59. …The Code was originally enacted in the year 1898. We must remember that at that time, the means of communication were very primitive; the means of telecommunications barely existed. Despite that, in the Code as originally enacted, the police was expected to complete investigation within 15 days and the Magistrate did not have any jurisdiction to pass an order detaining him beyond 15 days if investigation was not completed. This system worked well enough for more than seven decades. After the country attained Independence, Constitution of India was enacted which came into force on 26-1-1950. Article 21 of the Constitution provides that "no man shall be deprived of his life and personal liberty except in accordance with the procedure established by law". Right of personal liberty is not only a legal right but it is a human right, which is inherent in every citizen of any civilized society. Article 21 only recognizes this right. We can read Sections 57 and 167 to be the procedure established by law which curtails this right.”

17. In Gautam Navlakha Vrs. National Investigation Agency (2022) 13 SCC 542, the Apex Court observed as hereunder:

                  “73. In CBI v. Anupam J. Kulkarni, we may notice the following statement:

                  “4. ...Now coming to the object and scope of Section 167, it is well settled that it is supplementary to Section 57. It is clear from Section 57 that the investigation should be completed in the first instance within 24 hours; if not the arrested person should be brought by the police before a Magistrate as provided under Section 167. The law does not authorize a police officer to detain an arrested person for more than 24 hours exclusive of the time necessary for the journey from the place of arrest to the Magistrate's Court. Sub-section (1) of Section 167 covers all this procedure and also lays down that the police officer while forwarding the accused to the nearest Magistrate should also transmit a copy of the entries in the diary relating to the case. The entries in the diary are meant to afford to the Magistrate the necessary information upon which he can take the decision whether the accused should be detained in the custody further or not. It may be noted even at this stage the Magistrate can release him on bail if an application is made and if he is satisfied that there are no grounds to remand him to custody but if he is satisfied that further remand is necessary then he should act as provided under Section 167.”

                  94. We may also notice that the interplay of Sections 57 and 167 was considered in the judgment of this Court in Chaganti Satyanarayana 12. It was held as follows:

                  "12. On a reading of sub-sections (1) and (2) it may be seen that sub-section (1) is a mandatory provision governing, what a police officer should do when a person is arrested and detained in custody and it appears that the investigation cannot be completed within the period of 24 hours fixed by Section 57. Sub-section (2) on the other hand pertains to the powers of remand available to a Magistrate and the manner in which such powers should be exercised. The terms of sub-section (1) of Section 167 have to be read in conjunction with Section 57. Section 57 interdicts a police officer from keeping in custody a person without warrant for a longer period than 24 hours without production before a Magistrate, subject to the exception that the time taken for performing the journey from the place of arrest to the Magistrate's Court can be excluded from the prescribed period of 24 hours. Since sub-section (1) provides that if the investigation cannot be completed within the period of 24 hours fixed by Section 57 the accused has to be forwarded to the Magistrate along with the entries in the diary, it follows that a police officer is entitled to keep an arrested person in custody for a maximum period of 24 hours for purposes of investigation. The resultant position is that the initial period of custody of an arrested person till he is produced before a Magistrate is neither referable to nor in pursuance of an order of remand passed by a Magistrate. In fact, the powers of remand given to a Magistrate become exercisable only after an accused is produced before him in terms of sub-section (1) of Section 167.

                  13. Keeping proviso (a) out of mind for some time let us look at the wording of sub-section (2) of Section 167. This sub-section empowers the Magistrate before whom an accused is produced for purpose of remand, whether he has jurisdiction or not to try the case, to order the detention of the accused, either in police custody or in judicial custody, for a term not exceeding 15 days in the whole.”

18. In Rajani Kanta Meheta Vrs. State of Orissa 1974 SCC OnLine Ori 96, the Apex Court discussed duty of a Magistrate and the judicial discretion to be exercised at the time of arrest and remand and observed as hereunder:

                  “18. The proviso to Section 167. Cr. P.C. requires that remand can be permitted when the Magistrate is satisfied that adequate grounds exist for doing so. The petitioner's case is that the case diary was not being produced before the learned Magistrate from day to day when the case was posted and as such the learned Magistrate was not in a position to reach his judicial satisfaction that adequate grounds exist for remand. This allegation of the petitioner has not at all been controverted. In the objections filed before the learned Magistrate this used to be a ground, But the order sheet does not show what exactly was the position. There can be no doubt that remand to custody pending investigation is not a mechanical act and cannot be granted merely because the Investigating Officer or the Police Officer-in-charge desires that the accused be remanded. The Statute casts a heavy duty on the Magistrate and requires judicial discretion to be exercised and an order of remand is conditioned upon satisfaction of the learned Magistrate. In such circumstances, absence of the case diary and a day-to-day report of the investigation showing existence of prima facie material against the accused which is the foundation and where that is withheld from the learned Magistrate certainly a very peculiar situation arises. That apart, the requirement of law being that the details of investigation have to be reported to the Magistrate from time to time, there is no justification for withholding the case diary from the Court.”

19. On a sincere reading of the decisions (supra) cited from the side of the petitioners, it is well understood that there lies a bounden duty for production of case diary at the time of forwarding the accused and the reason behind it is for the Magistrate to go through the same with accompanying materials and to satisfy himself about the details of the investigation and regarding the accusation against the person arrested whether to be well founded and to determine the next course of action. Mere non-production of the case diary at the very inception is not always fatal, but for exercise of jurisdiction under Section 187 BNSS, transmitting the case diary entries plays a vital role. In absence of case diary, if such other materials are placed before the next date and it provides the details of the accusation made and reason behind the arrest, the same could satisfy a Magistrate while exercising powers under Section 187 BNSS. If there is no material at all and only a forwarding report, in that case, it can well be said that there is no due compliance of Section 187 BNSS. A Magistrate shall have to objectively examine the materials transmitted and subjectively satisfy himself whether the arrest in remand is justified considering the allegations against the accused. In anyway, the case diary is not made available to the accused. It is only for the Court to receive and peruse and if, along with it, other materials are submitted and on a consideration of the same, arrest is held to be lawful, a Magistrate may direct detention by a judicial remand or release the accused on bail. At the cost of repetition, it is stated that a Magistrate must have the necessary materials for considering the legality of the arrest and judicial remand on the production of the accused. The purpose is only to satisfy that on just ground, the accused has been arrested and detention by remand is necessary. If the forwarding report narrates in detail about the alleged offences committed by the accused and what evidence at that stage prima facie revealed his involvement and that such accusation is well founded and it has been transmitted with other materials including statements of facts connected to the case and there is an objective assessment made by the Magistrate on the arrest and remand, there is due compliance and any such remand to judicial custody cannot be invalidated merely for no case diary received. In the case of the petitioner, at the time of production, no case diary was submitted, but the learned Magistrate considered other materials to examine the accusation and his involvement in the commission of the alleged offences and such an exercise has fulfilled the mandatory compliance and therefore, this Court is not inclined to accept the argument alleging the remand as illegal.

20. This Court is aware of the decision of the Apex Court in Satender Kumar Antil (supra), wherein, it has been held that compliance for mandatory provisions of Section 40 and 41-A Cr.P.C is obligatory for securing the fundamental right of the arrestee and any such dereliction in that regard who entitled the accused to grant of bail. The petitioner was arrested and forwarded for having committed the alleged offences which prescribed the maximum punishment of 7 years imprisonment. According to Mr. Mohapatra, learned Senior Advocate, there is no compliance of Section 35(3) BNSS and from the checklist, it is clearly evident about such non-compliance but for a reason that the petitioner may commit a similar type of offences and terrorize the informant and other witnesses and event tamper with the evidence. It is contended that the investigation was idle for nearly six months and suddenly, the petitioner was picked up and forwarded to the Court. It is claimed that during the aforesaid period, the petitioner was not summoned for enquiry or in correction with the investigation. Only for the reason that the petitioner may tamper the evidence and hence, immediate arrest is necessary compliance under Section 35(3) BNSS was avoided. According to Mr. Panda, learned ASC and also Mr. Sarangi, learned counsel for the informant, sufficient reason has been assigned for the arrest of the petitioner and his direct involvement in the alleged mischief and therefore, the learned Magistrate considering the materials sent along with the forwarding report remanded him to judicial custody.

21. But according to the Court, when maximum punishment prescribed is within 7 years, there was a need for compliance of Section 35(3) BNSS, the FIR was lodged on 7th January, 2026 and the petitioner was forwarded on 23rd July, 2026 as made to reveal from Annexure-3 series, which means for nearly six months, the investigation was continued. It is alleged in the forwarding report that the petitioner was liable to be served with a notice under Section 35(3) BNSS, however, the same could not serve upon him and because the value of the landed property involved is worth crores of rupees and there is a reasonable apprehension that he may absconder evade the process of law and that his custodial interrogation is necessary for a fair and effective investigation and since he did not cooperate in the investigation and even denied to give a signature in the arrest memo on the grounds of the arrest and also in the seizure list and therefore, the arrest had to be made informing the grounds upon which it has been made observing all legal formalities. However, this Court finds no material on record to show that the petitioner avoided or evaded investigation. Nothing is in record to show that the there was reasonable apprehension about the petitioner to abscond. As to when, the notice under Section 35(3) BNSS was attempted to be served on the petitioner is not disclosed on record. Simply, for the reason that there is a possibility of one absconding is not a ground to arrest. When the imprisonment is a maximum of 7 years, the Apex Court in Satender Kumar Antil (supra) held that there is a mandatory compliance necessary and it is obligatory for the Investigative Authorities for complying Section 35(3) BNSS for securing the rights of a person arrested guaranteed under Article 14, 21 and 22 of the Constitution of India. When from the check list, it is revealed that compliance under Section 35(3) BNSS was avoided and it was for the reason that the petitioner may commit similar type of offence unless arrested immediately and likely to terrorize the informant‟s mother and tamper with evidence, this Court is inclined to hold that on such grounds service of notice in terms thereof could not have been dispensed with.

22. Nowhere, it is stated that a notice was refused by the petitioner or sincere attempt was made by the police to serve the same on him. Nearly by alleging that the petitioner avoided or that there was reasonable attention about his absconding or evade in the process of law by itself is a ground to not comply Section 35(3) BNSS. It is admitted by the IO that petitioner deserved service of notice under Section 35(3) BNSS, however, did not serve on him for other reasons like apprehension that he may abscond if served with such notice and to need for a custodial interrogation. It has been alleged that the petitioner did not cooperate in the investigation. It is for the State to put forth the evidence to satisfy that the petitioner did not cooperate in the investigation. Nothing is on record either to show that a notice was issued and afford was made to ensure service of the same on the petitioner, who is a local not an outsider and that to when he happens to be a builder. It is not that there is an attempt made by the IO but the petitioner was not accessible or avoided the investigation. At the juncture, it is the duty of the Court to remind the law laid down by the Apex Court in Satender Kumar Antil (supra) about the rights of an arrest and the objective behind the compliance of the mandatory provision embodied in under Section 35(3) BNSS and the same is reproduced herein below and the relevant to the subject involved herein is summarized below:

                  “100.2. The investigating agencies and their officers are duty-bound to comply with the mandate of Sections 41 and 41-A of the Code and the directions issued by this Court in Arnesh Kumar. Any dereliction on their part has to be brought to the notice of the higher authorities by the court followed by appropriate action.

                  100.3. The courts will have to satisfy themselves on the compliance of Sections 41 and 41-A of the Code. Any non-compliance would entitle the accused for grant of bail.”

23. Having regard to the decision (supra) and that there was no compliance of Section 35(3) BNSS in the case of the petitioner in as much as no notice was served on him as clearly evident from the checklist dated 23rd July, 2026, this Court is not inclined to accept the reason assigned for the arrest which is primarily on the ground that he may commit similar offence if released and could terrorize the informant and others thereby tampering evidence, the grounds assigned in the check list in the humble view of the Court do not justify any such ground compliance under Section 35(3) BNSS. The reasons are general and not specific and that to when the maximum imprisonment is prescribed up to 7 years, there was a need for service of a notice under Section 35(3) BNSS more so when the nature of dispute is such as it is in relation to a construction project with an agreement entered into between the petitioner and the informant and the conflict between them as a result leading to the lodging of the FIR. In absence of any convincing materials to show that the petitioner was avoiding investigation or that he managed to evade the same and there was attempt to serve notice on him by the IO for compliance of Section 35(3) BNSS, it has to be held and concluded that such compliance was necessary and but it has not adhered to do and therefore, the claim is about the investigation remained idle for nearly six months and the police action was sudden.

24. One more plank of challenge is on account of not revealing the grounds of arrest to the petitioner. According to Mr. Mohapatra, learned Senior Advocate „reasons of arrest‟ and „grounds of arrest‟ are distinct and hence, it has to be understood accordingly and cites the decision in Prabir Purkayastha (supra) wherein the Apex Court held and observed:

                  “48. It may be reiterated at the cost of repetition that there is a significant difference in the phrase „reasons for arrest‟ and „grounds of arrest‟. The "reasons for arrest" as indicated in the arrest memo are purely formal parameters viz. to prevent the accused person from committing any further offence; for proper investigation of the offence; to prevent the accused person from causing the evidence of the offence to disappear or tampering with such evidence in any manner; to prevent the arrested person for making inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the court or to the investigating officer. These reasons would commonly apply to any person arrested on charge of a crime whereas the „grounds of arrest‟ would be required to contain all such details in hand of the investigating officer which necessitated the arrest of the accused. Simultaneously, the grounds of arrest informed in writing must convey to the arrested accused all basic facts on which he was being arrested so as to provide him an opportunity of defending himself against custodial remand and to seek bail. Thus, the „grounds of arrest‟ would invariably be personal to the accused and cannot be equated with the „reasons of arrest‟ which are general in nature.”

25. On a proper reading of the above decision, reasons for arrest are different from the grounds of arrest. But on perusal of the record, this Court finds that having regard to the statement of the witnesses and not the materials seized during such investigation and non-cooperation of the petitioner are stated to have influenced the arrest. It is further made to reveal from the record that one of the grounds of arrest is also that the petitioner was in contact with other accused persons and hence, revealing his involvement in the commission of the allegation offences. But in the considered view of the Court, all such grounds are just reasons for arrest. In Prabir Purkayastha (supra), the formal parameters mentioned therein are referable to the reasons for the arrest which commonly applied to any person arrested on a criminal charge, whereas, the grounds of arrest would be required to reflect upon all such details which necessitated the arrest. It has also been held therein that simultaneously the grounds of arrest must convey the arrestee all basic facts on which he was being arrested to get an opportunity to defend himself against custodial remand. This Court finds no any such details from the record that compelled the arrest of the petitioner. Only if referring to the statements of the witnesses and seizures made and that the petitioner having not co-operated in the investigation and there is a possibility of tampering evidence by him necessitated the arrest, according to this Court, by no stretch of imagination, it can be claimed to the grounds of arrest.

26. In Mihir Rajesh Shah (supra), it has been held that the constitutional mandate of informing the arrestee on the grounds of arrest is mandatory in all offences and must be communicated in writing in the language understood and in exceptional cases where immediate written communication is impracticable, it shall have to orally informed and that would suffice at the time of arrest subject to written grounds of arrest being furnished within a reasonable time and in any case, at least two hours before production for remand and failure to comply the constitutional and statutory safeguards governing arrest would vitiate both the arrest and also remand and the resulting custody cannot be permitted to continue and expressed the view in following words that the constitutional mandate of informing the arrestee the grounds of arrest is mandatory in all offences under all statutes including offences under BNSS; the grounds of arrest must be communicated in writing to the arrestee in the language he/she understands; in case(s) where, the arresting officer/person is unable to communicate the grounds of arrest in writing on or soon after arrest, it be so done orally; the said grounds be communicated in writing within a reasonable time and in any case at least two hours prior to production of the arrestee for remand proceedings before the Magistrate; in case of non-compliance of the above, the arrest and subsequent remand would be rendered illegal and the person will be at liberty to be set free.

27. It is also necessary to examine the case of the petitioner in the light of the decision in Vihaan Kumar (supra), wherein it has been observed that the burden of proving compliance with Article 22(1) of the Constitution lies with the Investigating Authority and hence, the Magistrate is duty-bound to ascertain its compliance.

28. Having gone through the case laws cited and discussed hereinabove, this Court finds that though non-production of the case diary is not always fatal, but there was need for mandatory compliance of Section 35(3) BNSS in so far as the petitioner is concerned and that apart, there is no compliance of the statutory safeguards governing arrest in view of the law laid down by the Apex Court in Mihir Rajesh Shah (supra). It is made to understand and realize that the reasons of arrest have been misunderstood as the grounds of arrest in the case of the petitioner on account of a misconception. For a proper course of investigation, protection of evidence preventing intimidation and influencing witnesses and recurrence of the offences committed are stated to be on the grounds of arrest, which, in the humble view of the Court are just reasons of arrest and therefore, it is also to be concluded that there is a failure to comply the constitutional and statutory safeguards and as a result, the arrest of the petitioner has been vitiated and also the consequential remand and this aspect was lost sight of by the learned J.M.F.C and therefore, the argument advanced from the side of the petitioner is justified.

29. Accordingly, it is ordered.

30. In the result, the petition stands disposed of with a direction to the learned J.M.F.C.-IV (Cog. Taking), Bhubaneswar to forthwith release the petitioner on bail on him furnishing a bail bond of Rs. 1,00,000/- (rupees one lac only) with one solvent surety for the like amount with such other conditions imposed as deemed just and proper in the facts and circumstances of the case. As a necessary corollary, the impugned order dated 28th July, 2026 passed in connection with C.T. No.20 of 2026 is hereby set aside for the reasons stated hereinabove.