2024 (7) TMI 1594 - HC - Money Laundering

Legality of arrest of the Petitioner - non-compliance with Article 22(1) of the Constitution of India and Section 50 of the Code of Criminal Procedure 1973 - whether the subsequent remand orders were null and void due to this alleged illegality? - HELD THAT - The amendment was effected in the Code of Criminal Procedure with the very object of zealously safeguarding the inherent fundamental right available to every citizen and it s protection at every stage with a corresponding obligation to be discharged by every civilised State. Infraction of these fundamental rights have always been frowned upon by the Constitutional Courts and wherever necessary for breach of the fundamental right compensation has been granted under public law in addition to the private law remedy available to a person for tortious action and punishments have been imposed on the wrong doer. The Apex Court considered the argument in light of the three-Judge Bench decision in Vijay Madanlal Choudhary 2022 (7) TMI 1316 - SUPREME COURT (LB) holding that Section 65 of the Act of 2002 predicates that the provision of Code of 1973 shall apply insofar as they are not inconsistent with the provisions in respect of arrest search and seizure attachment confiscation investigation prosecution and all other proceedings thereunder. Taking note of Section 19 of the Act of 2022 which prescribes the manner of arrest of a person involved in money laundering with the inbuilt safeguards to be adhered to by the authorised officers such as recording of reasons for belief regarding involvement of the person in the offence of money laundering and that the reasons shall be recorded in writing and while effecting arrest the grounds of arrest are to be informed to that person. Reliance was also placed on the decision of the Division Bench of the Bombay High Court in Chhagan Chandrakant Bhujbal Vs. Union of India Ors. 2016 (12) TMI 1014 - BOMBAY HIGH COURT where it was held that the grounds of arrest are to be informed to the person arrested and that would mean that they should be communicated at the earliest but there is no statutory requirement of the grounds of arrest being communicated in writing. Reiterating that right to life and personal liberty is the most sacrosanct fundamental right guaranteed under Articles 20 21 and 22 of the Constitution of India and any attempt to encroach upon the same would be looked at with all seriousness and to be dealt with strictly it is specifically held that the right to be informed about the grounds of arrest flows from Article 22(1) of the Constitution of India and any infringement of this fundamental right would vitiate the process of arrest and remand. It is also clarified that mere fact that the charge-sheet has been filed in the matter would not validate the illegality and its unconstitutionality committed at the time of arrest of the accused and the grant of initial police custody remand to the accused. Conclusion - The grounds of arrest must be communicated in writing as a matter of course and without exception to uphold the fundamental rights of the accused. The Petitioner s arrest is declared illegal and the remand orders set aside. The Petitioner was ordered to be released on bail subject to furnishing bail bonds to the satisfaction of the trial judge. The Petitioner is entitled for his release and since the charge-sheet has been filed against him his release from custody is directed on furnishing bail and bonds to the satisfaction of the trial Judge - petition disposed off.

Summary

Issues Presented and Considered

The primary issue considered by the Court was whether the arrest of the Petitioner in connection with FIR No. 68 of 2020 was illegal due to non-compliance with Article 22(1) of the Constitution of India and Section 50 of the Code of Criminal Procedure, 1973. The Court also considered whether the subsequent remand orders were null and void due to this alleged illegality.

Issue-Wise Detailed Analysis

Legal Framework and Precedents

The relevant legal framework includes Article 22(1) of the Constitution of India, which mandates that no person arrested shall be detained without being informed of the grounds of arrest, and Section 50 of the Code of Criminal Procedure, 1973, which requires that the person arrested be informed of the grounds of arrest and the right to bail. The Court referenced the Supreme Court decisions in Pankaj Bansal v. Union of India and Prabir Purkayastha v. State (NCT of Delhi), which emphasized the necessity of providing written grounds of arrest.

Court's Interpretation and Reasoning

The Court interpreted Article 22(1) and Section 50 as requiring that the grounds of arrest be communicated in writing to the arrested person. The Court reasoned that this requirement is crucial to safeguard the fundamental rights of the accused, allowing them to consult legal counsel, oppose police custody remand, and seek bail effectively. The Court noted that oral communication of arrest grounds is insufficient, as it may lead to disputes regarding compliance.

Key Evidence and Findings

The Court examined the arrest form and station diary entries, which indicated that the Petitioner was informed of the reasons for arrest orally, but not in writing. The arrest form's column for recording the grounds of arrest was left unfilled, and there was no evidence that the Petitioner received written grounds of arrest.

Application of Law to Facts

Applying the legal principles established in Pankaj Bansal and Prabir Purkayastha, the Court found that the Petitioner's arrest did not comply with the requirement to provide written grounds of arrest. This non-compliance rendered the arrest and subsequent remand orders illegal and unconstitutional.

Treatment of Competing Arguments

The Additional Public Prosecutor argued that oral communication of arrest grounds sufficed and that the Petitioner's anticipatory bail application indicated awareness of the arrest reasons. The Court rejected these arguments, emphasizing the necessity of written communication as established by the Supreme Court. The intervenor's argument that the Pankaj Bansal decision was limited to PMLA offences was also dismissed, as the Court clarified that the requirement for written grounds applies to all arrests.

Conclusions

The Court concluded that the Petitioner's arrest was illegal due to the failure to provide written grounds of arrest, violating Article 22(1) and Section 50. Consequently, the remand orders were also declared null and void.

Significant Holdings

The Court reiterated the principle that the grounds of arrest must be communicated in writing, as a matter of course and without exception, to uphold the fundamental rights of the accused. The Court emphasized that this requirement applies to all arrests, not just those under specific statutes like the PMLA or UAPA.

Final Determinations on Each Issue

The Court declared the Petitioner's arrest illegal and set aside the remand orders. The Petitioner was ordered to be released on bail, subject to furnishing bail bonds to the satisfaction of the trial judge.

The Court directed that the judgment be circulated to police authorities to ensure compliance with the requirement to provide written grounds of arrest in future cases.