TMI Blog2025 (2) TMI 1104X X X X Extracts X X X X X X X X Extracts X X X X ..... Adv. Mr. Kavinesh Rm, Adv. Mr. Naman Vashishtha, Adv. Mr. Sahil A. Garg Narwala, Adv. (For R3) Mr. Shikhar Singhal, Adv. Mr. Honey Gola, Adv. Mr. Dipesh Singhal, Adv. Mr. Shourya Godara, Adv. Mr. Kapil Gaba, Adv. Mr. Pavitra Singh Sindhu , Adv JUDGMENT ABHAY S. OKA, J. ISSUE INVOLVED 1. Amongst other issues, the main issue canvassed by the appellant in this appeal is the violation of the appellant's right under Article 22(1) of the Constitution of India (for short 'the Constitution') as the appellant was not informed of the grounds for his arrest. FACTUAL ASPECT 2. A reference to a few factual aspects would be necessary. The challenge in this appeal is to the judgment and order dated 30th August 2024 passed by the learned Single Judge of Punjab and Haryana High Court. The appellant was arrested in connection with first information report no.121 of 2023 dated 25th March 2023 registered for the offences under Sections 409, 420, 467, 468 and 471 read with Section 120-B of the Indian Penal Code (for short, 'IPC'). According to the appellant's case, he was arrested on 10th June 2024 at about 10.30 a.m. at his office premises on the 3rd-5th floor of HUDA City Centre, Gur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d. He pointed out that even in paragraph 13, there is a specific assertion to that effect. He invited our attention to the counter affidavit/status report filed by Shri Abhimanyu, Assistant Commissioner of Police, before the High Court. He submitted that it is not even a case made out by him that grounds of arrest were communicated to the appellant in some form. Moreover, the specific averment in the petition that the grounds of arrest were not informed to the appellant has not been denied. He pointed out that the only pleading was that the appellant's wife was informed about the arrest. Therefore, learned senior counsel, by relying upon decisions of this Court in the case of Pankaj Bansal v. Union of India (2024) 7 SCC 576 and Prabir Purkayastha v. State (NCT of Delhi) (2024) 8 SCC 254, submitted that on the failure of the 1st respondent to comply with the mandate of Article 22(1) and Section 50 of CrPC, the arrest of the appellant is rendered illegal. He also urged that there was a violation of Article 22(2) of the Constitution as he was not produced before the learned Magistrate within 24 hours of his arrest. Therefore, he must be forthwith set at liberty. 5. Learned senior cou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Sanhita, 2023 (for short 'the BNSS') is Section 35. Section 41 of CrPC reads thus : "41. When police may arrest without warrant.-(1) Any police officer may without an order from a Magistrate and without a warrant, arrest any person- (a) who commits, in the presence of a police officer, a cognizable offence; (b) against whom a reasonable complaint has been made, or credible information has been received, or a reasonable suspicion exists that he has committed a cognizable offence punishable with imprisonment for a term which may be less than seven years or which may extend to seven years whether with or without fine, if the following conditions are satisfied, namely:- (i) the police officer has reason to believe on the basis of such complaint, information, or suspicion that such person has committed the said offence; (ii) the police office is satisfied that such arrest is necessary- (a) to prevent such person from committing any further offence; or (b) for proper investigation of the offence; or (c) to prevent such person from causing the evidence of the offence to disappear or tampering with such evidence in any manner; or (d) to prevent such person ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... who issued the requisition. (2) Subject to the provisions of Section 42, no person concerned in a non-cognizable offence or against whom a complaint has been made or credible information has been received or reasonable suspicion exists of his having so concerned, shall be arrested except under a warrant or order of a Magistrate." ( emphasis added ) 8. In this case, a commission of a cognizable offence punishable with imprisonment for a term which may extend to more than seven years has been alleged against the appellant. Hence, clause (ba) of sub-Section (1) of Section 41 [clause (c) of sub-Section (1) of Section 35 of the BNSS] will apply. Therefore, a police officer can arrest a person without an order of a Magistrate or warrant subject to the following conditions: a) Credible information has been received against the person that he has committed a cognizable offence punishable with imprisonment for more than seven years and b) The police officer has reason to believe on the basis of the information received that such a person has committed the offence. Hence, a police officer cannot casually arrest a person against whom the commission of an offence punishable with ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rity considers to be against the public interest to disclose. (7) Parliament may by law prescribe- (a) the circumstances under which, and the class or classes of cases in which, a person may be detained for a period longer than three months under any law providing for preventive detention without obtaining the opinion of an Advisory Board in accordance with the provisions of sub-clause (a) of clause (4); (b) the maximum period for which any person may in any class or classes of cases be detained under any law providing for preventive detention; and (c) the procedure to be followed by an Advisory Board in an inquiry under sub-clause (a) of clause (4)." ( emphasis added ) Clause (1) of Article 22 provides that no person who is arrested shall be detained in custody without being informed, as soon as may be, of the grounds for such arrest. Then comes Section 50 of CrPC (Section 47 of the BNSS), which reads thus: "50. Person arrested to be informed of grounds of arrest and of right to bail.-(1) Every police officer or other person arresting any person without warrant shall forthwith communicate to him full particulars of the offence for which he is arrested or other ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... there is a requirement to inform the arrestee of the grounds of arrest. This decision deals with and interprets Article 22(1). In paragraph 38 of the decision, this Court held thus: "38. In this regard, we may note that Article 22(1) of the Constitution provides, inter alia, that no person who is arrested shall be detained in custody without being informed, as soon as may be, of the grounds for such arrest. This being the fundamental right guaranteed to the arrested person, the mode of conveying information of the grounds of arrest must necessarily be meaningful so as to serve the intended purpose. It may be noted that Section 45 PMLA enables the person arrested under Section 19 thereof to seek release on bail but it postulates that unless the twin conditions prescribed thereunder are satisfied, such a person would not be entitled to grant of bail. The twin conditions set out in the provision are that, firstly, the court must be satisfied, after giving an opportunity to the Public Prosecutor to oppose the application for release, that there are reasonable grounds to believe that the arrested person is not guilty of the offence and, secondly, that he is not likely to commit any of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e constitutional objective underlying such information being given to the arrested person. Conveyance of this information is not only to apprise the arrested person of why he/she is being arrested but also to enable such person to seek legal counsel and, thereafter, present a case before the court under Section 45 to seek release on bail, if he/she so chooses. In this regard, the grounds of arrest in V. Senthil Balaji [V. Senthil Balaji v. State, (2024) 3 SCC 51 : (2024) 2 SCC (Cri) 1] are placed on record and we find that the same run into as many as six pages. The grounds of arrest recorded in the case on hand in relation to Pankaj Bansal and Basant Bansal have not been produced before this Court, but it was contended that they were produced at the time of remand. However, as already noted earlier, this did not serve the intended purpose. Further, in the event their grounds of arrest were equally voluminous, it would be well-nigh impossible for either Pankaj Bansal or Basant Bansal to record and remember all that they had read or heard being read out for future recall so as to avail legal remedies. More so, as a person who has just been arrested would not be in a calm and collect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , this Court also dealt with the effect of violation of Article 22(1) by holding that any infringement of this fundamental right would vitiate the process of arrest and remand. Paragraph 21 reads thus: "21. 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. Mere fact that a charge-sheet has been filed in the matter, would not validate the illegality and the unconstitutionality committed at the time of arresting the accused and the grant of initial police custody remand to the accused." ( emphasis added ) 13. In the case of Lallubhai Jogibhai Patel v. Union of India (1981) 2 SCC 427, in paragraph 20, this Court held thus: "20. It is an admitted position that the detenu does not know English. The grounds of detention, which were served on the detenu, have been drawn up in English. It is true that Shri C.L. Antali, Police Inspector, who served the grounds of detention on the detenu, has filed an affidavit stating that he had fully explained the grounds of detention in Gujarati to the detenu. But, that is not a sufficient compli ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ust understand on what grounds he has been arrested. That is why the mode of conveying information of the grounds must be meaningful so as to serve the objects stated above. 14. Thus, the requirement of informing the person arrested of the grounds of arrest is not a formality but a mandatory constitutional requirement. Article 22 is included in Part III of the Constitution under the heading of Fundamental Rights. Thus, it is the fundamental right of every person arrested and detained in custody to be informed of the grounds of arrest as soon as possible. If the grounds of arrest are not informed as soon as may be after the arrest, it would amount to a violation of the fundamental right of the arrestee guaranteed under Article 22(1). It will also amount to depriving the arrestee of his liberty. The reason is that, as provided in Article 21, no person can be deprived of his liberty except in accordance with the procedure established by law. The procedure established by law also includes what is provided in Article 22(1). Therefore, when a person is arrested without a warrant, and the grounds of arrest are not informed to him, as soon as may be, after the arrest, it will amount to a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iolative of Articles 21 and 22(1) of the Constitution of India. We cannot tinker with the most important safeguards provided under Article 22. 17. Another argument canvassed on behalf of the respondents is that even if the appellant is released on the grounds of violating Article 22, the first respondent can arrest him again. At this stage, it is not necessary to decide the issue. 18. In the present case, 1st respondent relied upon an entry in the case diary allegedly made at 6.10 p.m. on 10th June 2024, which records that the appellant was arrested after informing him of the grounds of arrest. For the reasons which will follow hereafter, we are rejecting the argument made by the 1st respondent. If the police want to prove communication of the grounds of arrest only based on a diary entry, it is necessary to incorporate those grounds of arrest in the diary entry or any other document. The grounds of arrest must exist before the same are informed. Therefore, in a given case, even assuming that the case of the police regarding requirements of Article 22(1) of the constitution is to be accepted based on an entry in the case diary, there must be a contemporaneous record, which record ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mount to a violation of the right to personal liberty guaranteed by Article 21 of the Constitution. Therefore, non-compliance with the requirements of Article 22(1) vitiates the arrest of the accused. Hence, further orders passed by a criminal court of remand are also vitiated. Needless to add that it will not vitiate the investigation, charge sheet and trial. But, at the same time, filing of chargesheet will not validate a breach of constitutional mandate under Article 22(1); e) When an arrested person is produced before a Judicial Magistrate for remand, it is the duty of the Magistrate to ascertain whether compliance with Article 22(1) and other mandatory safeguards has been made; and f) When a violation of Article 22(1) is established, it is the duty of the court to forthwith order the release of the accused. That will be a ground to grant bail even if statutory restrictions on the grant of bail exist. The statutory restrictions do not affect the power of the court to grant bail when the violation of Articles 21 and 22 of the Constitution is established. FACTUAL ADJUDICATION 22. In ground A of the writ petition filed before the High Court, a specific factual contention ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appellant but to his wife. The contention that the appellant's wife was informed about the grounds of arrest is an afterthought, as no such contention has been raised in the reply filed before the High Court. Communication of the grounds of arrest to the wife of the arrestee is no compliance with the mandate of Article 22(1). As the ground of non-compliance with Article 22(1) has been specifically pleaded in this appeal, this was the second opportunity available to the 1st respondent to plead and prove that grounds of arrest were informed to the appellant. However, it has not been done, and his contention is that the grounds of arrest were communicated to the appellant's wife. 25. A contention has been raised in the written argument that the grounds of arrest were incorporated in the remand report. This contention has been raised for the first time in written submissions before this Court. This is not pleaded in the reply filed before the High Court and this Court. The police submit a remand report before the learned Magistrate for seeking remand without serving a copy thereof to the arrestee. The reason is that the Police cannot divulge the details of the investigation to the acc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uaranteed under Article 21. We, therefore, propose to direct the State Government to issue necessary directions to ensure that such illegalities are never committed. 30. We must refer to the reasons recorded by the High Court. Paragraph 7 of the judgment notes the contention regarding failure to serve grounds of arrest. Paragraph 9 of the impugned judgment reads thus : " 9. In the above said para, it has been explicitly mentioned that petitioner was informed regarding his arrest and after that he was produced before the Judicial Magistrate, who had given the seven days police custody for conducting investigation. The allegations about non-supply of arrest, is simply bald. The analysis of above, would clearly point out that there is no violation of Article 22(1) of Constitution of India because there is nothing to disbelieve that petitioner was not informed about ground of arrest. " 31. The learned Single Judge, unfortunately, has equated information given regarding the appellant's arrest with the grounds of arrest. The observation that the allegation of nonsupply of the grounds of arrest made by the appellant is a bald allegation is completely uncalled for. All courts, includi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e State of Haryana. JUDGMENT NONGMEIKAPAM KOTISWAR SINGH, J. 1. I had the benefit of going through the draft opinion of my esteemed Brother Hon'ble Mr. Justice Abhay S. Oka and I concur with the analysis and conclusions arrived at. However, I wish to add a few lines in supplement to the aforesaid opinion. 2. The issue on the requirement of communication of grounds of arrest to the person arrested, as mandated under Article 22(1) of the Constitution of India, which has also been incorporated in the Prevention of Money Laundering Act, 2002 under Section 19 thereof has been succinctly reiterated in this judgment. The constitutional mandate of informing the grounds of arrest to the person arrested in writing has been explained in the case of Pankaj Bansal (supra) so as to be meaningful to serve the intended purpose which has been reiterated in Prabir Purkayastha (supra). The said constitutional mandate has been incorporated in the statute under Section 50 of the CrPC (Section 47 of BNSS). It may also be noted that the aforesaid provision of requirement for communicating the grounds of arrest, to be purposeful, is also required to be communicated to the friends, relatives or such o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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