TaxTMI 
TaxTMI 
2025 (6) TMI 1184
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....t which was handed over to him were in gross violation of the settled proposition of law as has been held by the Hon'ble Supreme Court. It was further complained that the accused was subjected to physical assault in custody which resulted in his injuries and in spite of furnishing all the information by way of a petition before the Learned ACJM, Bidhannagar on 28th April, 2025 the Learned Magistrate ignored the same and rejected the application for bail of the accused Abhijit Chakroborty. Petitioner therefore prayed that the arrest of the accused be considered as illegal and in violation of the established law. Further a prayer was advanced for issuing show cause against the Respondent No. 6, being the Investigating Officer of the case relating to the custodial torture inflicted by him which is in violation of the constitutional mandate. In order to substantiate his contention, Learned Advocate for the petitioner relied upon the judgment of Pankaj Bansal -versus- Union of India and Others reported in (2024) 7 SCC 576 and referred to paragraphs 20, 38, 42, 43, 45 which reads as follows: "20. Dealing with the interplay between Section 19 PMLA and Section 167CrPC, this Court obser....
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....cribed 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 offence while on bail. To meet this requirement, it would be essential for the arrested person to be aware of the grounds on which the authorised officer arrested him/her under Section 19 and the basis for the officer's "reason to believe" that he/she is guilty of an offence punishable under the 2002 Act. It is only if the arrested person has knowledge of these facts that he/she would be in a position to plead and prove before the Special Court that there are grounds to believe that he/she is not guilty of such offence, so as to avail the relief of bail. Therefore, communication of the grounds of arrest, as mandated by Article 22(1) of the Constitution and Section 19 PMLA, is meant to serve this higher purpose and must be given due importance. 42. That being so,....
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.... 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 collected frame of mind and may be utterly incapable of remembering the contents of the grounds of arrest read by or read out to him/her. The very purpose of this constitutional and statutory protection would be rendered nugatory by permitting the authorities concerned to merely read out or permit reading of the grounds of arrest, irrespective of their length and detail, and claim due compliance with the constitutional requirement under Article 22(1) and the statutory mandate under Section 19(1) PMLA. 45. On the above analysis, to give true meaning and purpose to the constitutional and the statutory mandate of Section 19(1) PMLA of informing the arrested person of the grounds of arrest, we hold that it would be necessary, henceforth, that a copy of such written grounds of arrest is furnished to the arrested person as a matter of course and without exception. The deci....
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.... was available with the investigating officer. In spite thereof, the appellant was presented before the learned Remand Judge at his residence sometime before 6.00 a.m. on 4-10-2023. A remand Advocate, namely, Shri Umakant Kataria was kept present in the court purportedly to provide legal assistance to the appellant as required under Article 22(1) of the Constitution of India. Apparently, this entire exercise was done in a clandestine manner and was nothing but a blatant attempt to circumvent the due process of law; to confine the accused to police custody without informing him the grounds on which he has been arrested; deprive the accused of the opportunity to avail the services of the legal practitioner of his choice so as to oppose the prayer for police custody remand, seek bail and also to mislead the court. The accused having engaged an advocate to defend himself, there was no rhyme or reason as to why, information about the proposed remand application was not sent in advance to the advocate engaged by the appellant. 37. The interpretation given by the learned Single Judge that the grounds of arrest were conveyed to the accused in writing vide the arrest memo is unacceptable ....
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....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. 49. From the detailed analysis made above, there is no hesitation in the mind of the court to reach to a conclusion that the copy of the remand application in the purported exercise of communication of the grounds of arrest in writing was not provided to the appellant- accused or his counsel before passing of the order of remand dated 4-10-2023 which vitiates the arrest and subsequent remand of the appellant. Learned Counsel for petitioner has further placed reliance on the judgment rendered in Vihaan Kumar v. State of Haryana and Another, (2025) SCC Online SC 269, submitting that the Hon'ble Supreme Court therein has reiterated and affirmed the legal principles enunciated in Pankaj Bansal (supra) and Prabir Purkayastha (supra), particularly in the context of offences under the Indian Penal Code. The Le....
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....umber of judgments to fortify his argument. Attention of the Court was drawn to V. Senthil Balaji -versus- State represented by Deputy Director and others, (2024) 3 SCC 51. Emphasis was made on paragraphs 28, 29, 30, 57 and 58 which are as follows: "28. A writ of habeas corpus shall only be issued when the detention is illegal. As a matter of rule, an order of remand by a judicial officer, culminating into a judicial function cannot be challenged by way of a writ of habeas corpus, while it is open to the person aggrieved to seek other statutory remedies. When there is a non-compliance of the mandatory provisions along with a total non- application of mind, there may be a case for entertaining a writ of habeas corpus and that too by way of a challenge. 29. In a case where the mandate of Section 167CrPC, 1973 and Section 19 of the PMLA, 2002 are totally ignored by a cryptic order, a writ of habeas corpus may be entertained, provided a challenge is specifically made. However, an order passed by a Magistrate giving reasons for a remand can only be tested in the manner provided under the statute and not by invoking Article 226 of the Constitution of India. There is a difference bet....
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....In that view of the matter, it was not a case of continued illegal detention but the incumbent was in judicial custody by virtue of an order passed by the jurisdictional Magistrate, which was in force, granting police remand during investigation of a criminal case. Resultantly, no writ of habeas corpus could be issued." 57. While authorising the detention of an accused, the Magistrate has got a very wide discretion. Such an act is a judicial function and, therefore, a reasoned order indicating application of mind is certainly warranted. He may or may not authorise the detention while exercising his judicial discretion. Investigation is a process which might require an accused's custody from time to time as authorised by the competent court. Generally, no other court is expected to act as a supervisory authority in that process. An act of authorisation pre-supposes the need for custody. Such a need for a police custody has to be by an order of a Magistrate rendering his authorisation. 58. The words "such custody as such Magistrate thinks fit" would reiterate the extent of discretion available to him. It is for the Magistrate concerned to decide the question of custody, eithe....
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....ision is so arbitrary and capricious that no reasonable person could have ever arrived at it, the same is liable to be struck down by a writ court. If the decision cannot rationally be supported by the materials on record, the same may be regarded as perverse. 33. However, the power of the Court to examine the reasonableness of an order of the authorities does not enable the Court to look into the sufficiency of the grounds in support of a decision to examine the merits of the decision, sitting as if in appeal over the decision. The test is not what the Court considers reasonable or unreasonable but a decision which the Court thinks that no reasonable person could have taken, which has led to manifest injustice. The writ court does not interfere, because a decision is not perfect.' 20. The decision was approved by a further decision of this Court in Municipal Council, Neemuch v. Mahadeo Real Estate8, wherein it was held that: "14. It could thus be seen that the scope of judicial review of an administrative action is very limited. Unless the Court comes to a conclusion that the decision-maker has not understood the law correctly that regulates his decision- making power or when....
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....eve" has been explained in various decisions by the Apex Court and High Courts while dealing with Sections 132 and 148 of the Act. It has been held that the words "reason to believe" mean that a reasonable man, under the circumstances, would form a belief which will impel him to take action under the law. The formation of opinion has to be in good faith and not on mere pretence. For the purpose of Section 132 of the Act, there has to be a rational connection between the information or material and the belief about undisclosed income, which has not been and is not likely to be disclosed by the person concerned." Learned Senior Advocate also relied upon the judgment of the Calcutta High Court in Indrani Chakraborty -versus- State of West Bengal and others reported in 2014 SCC Online Cal 17573, reference was made to paragraphs 13, 14 and 17 and it was submitted that a writ petition is not maintainable against a judicial order passed by the Criminal Court. The aforesaid paragraphs relied upon by the State are as follows: "13. It was also noted there that the Supreme Court in its decision reported in Surya Dev Rai (supra) had interfered in exercise of writ jurisdiction with an order ....
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....s of the relevant general law i.e. the Civil Procedure Code, or the Cr.P.C., the writ court ought to stay at a distance and grant liberty to the party aggrieved to pursue his remedy in terms thereof or to seek other constitutional remedy, if available, meaning thereby the High Court's superintending jurisdiction under Article 227. 17. Assuming that Surya Dev Rai (supra) lays down correct law, the petitioner is still not entitled to an order for admission of the writ petition. The order of the CJM impugned in this writ petition does not suffer from absence of jurisdiction although it could be challenged on the ground that the CJM in the exercise of his jurisdiction has committed an error. One might in this connection profitably refer to the decision of the Supreme Court in Official Trustee, West Bengal v. Sachindranath Chatterjee, AIR 1969 SC 823. The Supreme Court was considering what is meant by "jurisdiction" and observed that it could do no better than quote the words of Hon'ble Asutosh Mookerjee, ACJ (as His Lordship then was) speaking for the Full Bench of this Court, in Hirday Nath Roy v. Ram Chandra Barna Sharma, AIR 1921 Cal 34. The guiding principle to bear in mi....
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....rieved by the Order of the Learned Magistrate, the accused ought to canvass such issues before the Higher Forum of the Learned Magistrate, who is assigned the duty to adjudicate the issue under the statute. Learned advocate for the petitioner although in reply has referred to two decisions of the Hon'ble Supreme Court i.e. Additional Secretary to the Government of India and others -versus- Alka Subhash Gadia and Another, 1992 Supp. (1) SCC 496 and Deepak Bajaj -versus- State of Maharashtra and Another, (2008) 16 SCC 14. The judgments relied upon by the petitioner exclusively relate to preventive detention, so the same is not considered by this Court having regard to the issues that petitioner was arrested in connection with the Penal Code offences and was produced before the learned Magistrate within 24 hours of his arrest. I have considered the submission advanced by the learned Advocate appearing on behalf of the petitioner as well as the State, while on behalf of the petitioner reliance was placed upon Pankaj Bansal (supra), Prabir Purkayastha (supra), Vihaan Kumar (supra), on the other hand on behalf of the State emphasis was made on V. Senthil Balaji (supra), Municipal Corpo....
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.... Section 61(2) of the BNS, 2023). The relevant paragraphs are quoted below: "15. The pathbreaking judgment of this Court in the case of Vihaan Kumar v. State of Haryana and another reported in 2025 SCC OnLine SC 269 serves as a pivotal reference point in Indian jurisprudence regarding the rights of individuals upon arrest. The judgment in Vihan Kumar (supra) has profound implications for the enforcement of Article 22 of the Constitution across the country. It underscores the judiciary's commitment to upholding constitutional protections against arbitrary arrest and detention. This decision sets a clear precedent that the investigating agency/ police officer/ authorities effecting arrest of any person in connection with any cognizable offence without a warrant must provide specific, actionable reasons for an individual's arrest, beyond citing broad provisions of law. A clear dictum has been laid in Vihaan Kumar (supra) that the law enforcement agencies must exercise greater diligence in communicating the precise grounds of arrest in order to avoid unlawful detention claims. The decision further reinforces the right to legal recourse through habeas corpus petitions, empowering indi....
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....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 violation of his fundamental right guaranteed under Article 21 as well. In a given case, if the mandate of Article 22 is not followed while arresting a person or after arresting a person, it will also violate fundamental right to liberty guaranteed under Article 21, and the arrest will be rendered illegal. On the failure to comply with the requirement of informing grounds of arrest as soon as 22 may be after the arrest, the arrest is vitiated. Once the arrest is held to be vitiated, the person arrested cannot remain in custody even for a second. 15. We have already referred to what is held in paragraphs 42 and 43 of the decision in the case of Pankaj Bansal (supra). This Court has suggested that the proper and ideal course of communicating the grounds of arrest is to provide groun....
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....y 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 records what the grounds of arrest were. When an arrestee pleads before a Court that grounds of arrest were not communicated, the burden to prove the compliance of Article 22(1) is on the police. 19. An argument was sought to be canvassed that in view of sub Section (1) of Section 50 of CrPC, there is an option to communicate to the person arrested full particulars of the offence for which he is arrested or the other grounds for the arrest. Section 50 cannot have the effect of diluting the requirement of Article 22(1). If held so, Section 50 will attract the vice of unconstitutionality. Section 50 lays down the requirement of communicating the full particulars of the offence for which a person is arrested to him. The 'other grounds for such arrest' referred to in Section....