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Issues: (i) Whether the petitioners' arrest and remand were vitiated for want of compliance with the statutory arrest safeguards under Section 35(3) of the Bharatiya Nagarik Suraksha Sanhita, 2023. (ii) Whether the prosecution, though founded on allegations of unauthorized trading in securities, was prima facie unsustainable because the special procedure under the Securities Contracts (Regulation) Act, 1956 was not followed.
Issue (i): Whether the petitioners' arrest and remand were vitiated for want of compliance with the statutory arrest safeguards under Section 35(3) of the Bharatiya Nagarik Suraksha Sanhita, 2023.
Analysis: The arrest safeguard embodied in Section 35(3) requires the investigating officer to satisfy himself about the necessity of arrest, and the remand court is expected to examine compliance with that mandate. The record did not clearly show such satisfaction, though the grounds of arrest were communicated. The Court, however, found it unnecessary to rest the decision solely on this ground.
Conclusion: The challenge on the footing of Section 35(3) was noticed but was not made the sole basis of relief.
Issue (ii): Whether the prosecution, though founded on allegations of unauthorized trading in securities, was prima facie unsustainable because the special procedure under the Securities Contracts (Regulation) Act, 1956 was not followed.
Analysis: The allegations, on their face, fell within the penal scheme of Section 23 of the Securities Contracts (Regulation) Act, 1956. That Act creates a special regime for cognizance, trial, and procedure, including cognizance only upon complaint by the specified authorities and trial by Special Courts. Where a special statute provides a complete procedure, it prevails over the general criminal law. Treating the same allegations as offences of cheating and criminal breach of trust under the general penal law, without following the special statutory route, was held to be prima facie impermissible. The detention based on such prosecution was therefore considered unsustainable.
Conclusion: The prosecution, as instituted, was held prima facie unsustainable, and the petitioners were entitled to release on bail.
Final Conclusion: The petition succeeded in part, with bail granted to the petitioners because the continuation of detention on the basis of the impugned prosecution was found unsustainable in the peculiar facts and statutory setting.
Ratio Decidendi: Where a special enactment prescribes a complete and exclusive procedure for cognizance and prosecution of specified securities offences, the same factual allegations cannot be pursued under the general criminal law in derogation of that special procedure, and detention founded on such an unsustainable prosecution may be interfered with.
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