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2025 (2) TMI 1104
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....v. Mr. Raunak Arora, Adv. Ms. Sumedha Tuli, 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 p....
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....n 50 of CrPC. Further, Article 22(1) has also been violated. 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, h....
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....ant. The corresponding provision in the Bharatiya Nagarik Suraksha 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....
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.... the person to be arrested and the offence or other cause for which the arrest is to be made and it appears therefrom that the person might lawfully be arrested without a warrant by the officer 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 ....
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....grounds on which the order has been made and shall afford him the earliest opportunity of making a representation against the order. (6) Nothing in clause (5) shall require the authority making any such order as is referred to in that clause to disclose facts which such authority 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 Secti....
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....ement of recording in writing the reason to believe is found in clause (ba) of Section 41(1). The second requirement incorporated in Section 19(1) is that the person arrested shall be informed of the grounds of such arrest as soon as may be. The second part is the requirement incorporated in Article 22(1). Therefore, even under Section 19(1) of PMLA, 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 enti....
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....the consequence thereof can be obviated very simply by furnishing the written grounds of arrest, as recorded by the authorised officer in terms of Section 19(1) PMLA, to the arrested person under due acknowledgment, instead of leaving it to the debatable ipse dixit of the authorised officer. 43. The second reason as to why this would be the proper course to adopt is the 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....
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....s identical, and therefore, this Court held that interpretation of Article 22(5) made by the Constitution Bench in the case of Harikisan v. State of Maharashtra 1962 SCC OnLine SC 117, shall ipso facto apply to Article 22(1) of the Constitution of India insofar as the requirement to communicate the ground of arrest is concerned. We may also note here that in paragraph 21, in the case of Prabir Purkayastha2, 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 h....
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....e not communicated to the arrestee, as soon as may be, he will not be able to effectively exercise the right to consult an advocate. This requirement incorporated in Article 22(1) also ensures that the grounds for arresting the person without a warrant exist. Once a person is arrested, his right to liberty under Article 21 is curtailed. When such an important fundamental right is curtailed, it is necessary that the person concerned must 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 amou....
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....reat respect to the learned senior counsel, will amount to completely nullifying Articles 21 and 22(1) of the Constitution. Once it is held that arrest is unconstitutional due to violation of Article 22(1), the arrest itself is vitiated. Therefore, continued custody of such a person based on orders of remand is also vitiated. Filing a charge sheet and order of cognizance will not validate an arrest which is per se unconstitutional, being violative 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 t....
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....de and method of communication must be such that the object of the constitutional safeguard is achieved; c) When arrested accused alleges non-compliance with the requirements of Article 22(1), the burden will always be on the Investigating Officer/Agency to prove compliance with the requirements of Article 22(1); d) Non-compliance with Article 22(1) will be a violation of the fundamental rights of the accused guaranteed by the said Article. Moreover, it will amount 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) W....
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....r, when Petitioner's wife came to meet the Petitioner, she was again explained the grounds of arrest in detail and shown the relevant documents. ................................................................." ( emphasis added ) Thus, the stand taken by Shri Abhimanyu is that the grounds of arrest were explained to the appellant's wife in detail, and when she again came to meet the appellant, she was informed and explained the grounds of arrest. Thus, the stand taken shows that grounds of arrest were not informed to the 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 com....
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.... the arrest of the appellant was rendered illegal on account of failure to communicate the grounds of arrest to the appellant as mandated by Article 22(1) of the Constitution. 29. Before we part with this judgment, we must refer to the shocking treatment given to the appellant by the police. He was taken to a hospital while he was handcuffed and he was chained to the hospital bed. This itself is a violation of the fundamental right of the appellant under Article 21 of the Constitution of India. The right to live with dignity is a part of the rights guaranteed 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 alle....
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....ccordance with Section 91 of the BNSS to the satisfaction of the Trial Court within a period of two weeks from his release ; e) The State of Haryana shall issue guidelines/departmental instructions to the police (i) to ensure that the act of handcuffing an accused while he is on a hospital bed and tying him to the hospital bed is not committed again. (ii) to ensure that the constitutional safeguards under Article 22 are strictly followed. If necessary, the State Government shall amend the existing Rules/guidelines; and f) A copy of the judgment shall be forwarded to the Home Secretary of the 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 ....