TaxTMI 
TaxTMI 
2025 (11) TMI 367
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....v., Mr. Siddharth Dharmadhikari, Adv., Mr. Shrirang B. Varma, Adv., Mr. Amlaan Kumar, Adv., Mr. Jatin Dhamija, Adv., Mr. Vinayak Aren, Adv., Mr. Aaditya Aniruddha Pande, AOR., JUDGMENT AUGUSTINE GEORGE MASIH, J. 1. These Appeals being Criminal Appeal No.2195 of 2025, Criminal Appeal No.2189 of 2025 and Criminal Appeal No.2190 of 2025 were originally filed as Special Leave Petitions where leave was granted vide Order dated 22.04.2025. Since, in all these Appeals similar questions of law are involved, they are being decided by this common judgment. Special Leave Petition (Criminal) No.8704 of 2025 was tagged with the above-mentioned matters vide Order dated 02.06.2025. 2. The main issue as raised by the Appellants in these Appeals is the violation of the Appellants' right under Article 22(1) of the Constitution of India and Section 50 of the Code of Criminal Procedure, 1973 ("CrPC 1973") now Section 47 of Bharatiya Nagarik Suraksha Sanhita, 2023 ("BNSS 2023") as the appellants assert that they were not informed of grounds of their arrest in writing. 3. For convenience, Criminal Appeal No. 2195 of 2025 is taken as the lead case. The facts in a nutshell are that on 07.07....
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....due to the Appellant's conscious awareness of the gravity of the offence, supported by substantial evidence and the Appellant's evasion of arrest, thereby justifying custody despite the missing written grounds. The Appellant approached this Court challenging the Judgment of Bombay High Court contending that grounds of arrest as mandated under Section 47 of BNSS 2023 were not informed to him in writing. 6. This Court, while considering the Special Leave Petition recorded that the Court is not inclined to entertain the petition on its merits and issued notice only to the extent of considering the question of law/legal position. In connected cases, being Criminal Appeal No. 2189 of 2025 and Criminal Appeal No. 2190 of 2025, this Court vide Order dated 22.04.2025, has granted ad interim relief and directed the Appellants to be released on bail during pendency of these Appeals. In Special Leave Petition (Criminal) No. 8704 of 2025 vide Order dated 02.06.2025, ad interim relief was also granted to the Petitioner therein directing his release on bail. On 13.12.2024, Mr. Shri Singh, learned counsel, who was present in the Court was appointed as Amicus Curiae to assist this Court in this....
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....such a mode and method so as to achieve the object of the constitutional safeguard. He contends that Article 22 of the Constitution of India does not differentiate between offences under BNS 2023 (earlier IPC 1860) or offences under any other special statute such as UAPA, thereby claiming violation of Article 22(1) of the Constitution of India and Section 47 of BNSS 2023 by the Respondent. He, therefore, prays for the arrest to be declared illegal and the Appellant to be set at liberty. 11. On the other hand, learned Counsel for the Respondent-State submits that the mode of communication of grounds of arrest is not specified in the provision of Section 47 of BNSS 2023. The reliance on the decisions in the cases of Pankaj Bansal (supra) and Prabir Purkayastha (supra), is misplaced as both the cases pertain to special statutes and the facts therein are not similar to the present case. It is argued that the mandate of Article 22(1) is to inform the grounds of arrest to the arrestee and there is no specific statutory mandate to provide such grounds in writing. The Respondent while supporting the Judgment of the High Court of Bombay contends that while informing grounds of arrest to ....
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....nce. The grounds of arrest must be provided forthwith i.e. within a reasonable time so as to allow the arrested accused an effective opportunity to consult a legal practitioner and be sufficiently prepared to oppose remand. The reasonable time would depend on the facts of each case; however, the grounds must be provided prior to the remand hearing. 15. Learned Amicus Curiae rests his submissions by stating that there can be no doubt that non-communication of the grounds of arrest to the arrested person amounts to the violation of Article 22(1) of the Constitution of India, entitling the arrestee to be released from the custody. However, there can be no absolute rule that if an arrest is found to be contrary to law, all investigative procedures linked to the arrest must be deemed to have been vitiated. The effect of failure to communicate grounds of arrest would have to be seen in the context of proceedings when such an objection is raised and the nature of investigation conducted after the arrest of the accused. 16. Having heard the learned Counsels for the parties, learned Amicus Curiae and on perusal of the material on record, we find it apposite that prior to undertaking a....
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....ree months that there is in its opinion sufficient cause for such detention: Provided that nothing in this sub-clause shall authorise the detention of any person beyond the maximum period prescribed by any law made by Parliament under sub-clause (b) of clause (7); or (b) such person is detained in accordance with the provisions of any law made by Parliament under sub-clauses (a) and (b) of clause (7). (5) When any person is detained in pursuance of an order made under any law providing for preventive detention, the authority making the order shall, as soon as may be, communicate to such person the 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 ....
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....(1) as soon as he is brought to the police station. (3) An entry of the fact as to who has been informed of the arrest of such person shall be made in a book to be kept in the police station in such form as the State Government may, by rules, provide. (4) It shall be the duty of the Magistrate before whom such arrested person is produced, to satisfy himself that the requirements of sub-section (2) and sub-section (3) have been complied with in respect of such arrested person." 21. After having discussed the constitutional mandate and statutory provisions giving effect to the constitutional mandate in Article 22 of the Constitution of India, let us now consider the jurisprudence developed by this Court with respect to furnishing of grounds of arrest through its decisions. 22. In Pankaj Bansal (supra), this Court while dealing with the issue of furnishing grounds of arrest under Section 19(1) of PMLA has underscored that Article 22(1) of the Constitution mandates that no arrested person shall be detained without being informed of the grounds of such arrest at the earliest opportunity. The manner in which such grounds are to be communicated must be efficacious ....
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....on 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. xxx xxx xxx 42. That being so, there is no valid reason as to why a copy of such written grounds of arrest should not be furnished to the arrested person as a matter of course and without exception. There are two primary reasons as to why this would be the advisable course of action to be followed as a matter of principle. Firstly, in the event such grounds of arrest are orally read out to the arrested person or read by such person with nothing further and this fact is disputed in a given case, it may boil down to the word of the arrested person against the word of the authorised officer as to whether or not there is due and proper compliance in....
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....espective 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. 44. We may also note that the grounds of arrest recorded by the authorised officer, in terms of Section 19(1) PMLA, would be personal to the person who is arrested and there should, ordinarily, be no risk of sensitive material being divulged therefrom, compromising the sanctity and integrity of the investigation. In the event any such sensitive material finds mention in such grounds of arrest recorded by the authorised officer, it would always be open to him to redact such sensitive portions in the document and furnish the edited copy of the grounds of arrest to the arrested person, so as to safeguard the sanctity of the investigation. 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....
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....rict enforcement. 25. It was said that any breach of the constitutional safeguards provided under Article 22 would vitiate the lawfulness of arrest and subsequent remand and entitle the arrested person to be set at liberty. The relevant portion in Prabir Purkayastha (supra) is reproduced herein: "19. Resultantly, there is no doubt in the mind of the court that any person arrested for allegation of commission of offences under the provisions of UAPA or for that matter any other offence(s) has a fundamental and a statutory right to be informed about the grounds of arrest in writing and a copy of such written grounds of arrest have to be furnished to the arrested person as a matter of course and without exception at the earliest. The purpose of informing to the arrested person the grounds of arrest is salutary and sacrosanct inasmuch as this information would be the only effective means for the arrested person to consult his advocate; oppose the police custody remand and to seek bail. Any other interpretation would tantamount to diluting the sanctity of the fundamental right guaranteed under Article 22(1) of the Constitution of India. 20. The right to life and per....
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....breached under any situation. Non-compliance of this constitutional requirement and statutory mandate would lead to the custody or the detention being rendered illegal, as the case may be." 26. Subsequently, in Vihaan Kumar (supra), this Court underscored that a failure to comply with the requirement of informing the grounds of arrest soon after the arrest would render the arrest illegal. The Court referred to the above-mentioned decisions of this Court and observed that although the ideal mode of communication of grounds of arrest is to provide such grounds in writing, there is no such statutory requirement to provide such grounds in writing. The Court noted that it may not be practical to communicate grounds of arrest in writing in every situation, but if such a course is followed, the controversy about non-compliance will not arise at all. 27. It was further observed that to ensure the effective implementation of the constitutional mandate in Article 22, the law further requires such grounds to be effectively communicated not only to the detainee/arrestee but also to their friends, relatives or any other nominated person as envisaged in Section 50A of CrPC 1973 (now Sectio....
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...., 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. xxx xxx xxx N. Kotiswar Singh, J. (supplementing)- 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 ma....
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....ve failing which, such arrest may be rendered illegal." 28. Before we delve into analysing the provisions of law and jurisprudential developments by this Court, we find it quintessential to discuss the impact of arrest on an individual. The arrest of an individual invariably impacts not only the person arrested himself, but also the persons associated with him, i.e. family, friends, relatives, etc., affecting their psychological balance and overall social well-being. This Court has on several occasions underscored that there is a stigma attached to arrest which impairs the reputation and the standing of an individual in society. The stigma attached to arrest undermines a person's social dignity and results into consequences that reverberate beyond the individual but also extend to their social circle. 29. The impacts of arrest are multidimensional and are not only limited to societal impact but also extend to the physical and mental health of the person. Mental health issues like depression due to custodial confinement can be aggravated by inadequate and overcrowded conditions prevalent in prisons. Such conditions severely impinge upon the fundamental rights of the arrested p....
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....allow him to defend himself from the accusations that are levelled against him leading to his arrest. The salutary purpose of informing the grounds of arrest is to enable the person to understand the basis of his arrest and engage legal counsel to challenge his arrest, remand or seek bail and/or avail of any other remedy as may be available to him/her under law. 35. It is pertinent to note that the arrested person must be given early access to legal assistance to enable him to defend himself and oppose the remand. The early access to legal counsel becomes a quintessential object to ensure that the personal liberty of the arrested person is protected. This Court in Suhas Chakma v. Union of India and Others 2024 SCC OnLine SC 3031 while emphasizing on the need of pre-litigation assistance has directed that the "Guidelines on Early Access to Justice at Pre-arrest, Arrest and Remand Stage Framework" as framed by the National Legal Services Authority, are to be diligently pursued. The guidelines provide for legal assistance to the arrested person at the stage before remand. The remand advocate shall interact with the arrestee with the objective to inform him about the allegations aga....
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....t the stage of remand but to be represented by the counsel of his choice. Thereafter, the duty is cast upon the magistrate to apply his judicial mind to the material produced before him, hear the accused or the counsel representing him to determine whether the accused should be remanded to police custody or should be detained at all within the parameters prescribed in Section 167 of CrPC 1973 (Section 187 of BNSS 2023). The magistrate is not acting as a post office simply putting a stamp of approval to the remand papers as presented before him. In Manubhai Ratilal Patel v. State of Gujarat and Others (2013) 1 SCC 314 this Court held that it is obligatory on the part of the magistrate to satisfy himself whether the materials placed before him justify such a remand. 38. These above discussed principles embody the manifestation of the constitutional safeguard sought to be achieved in Article 22 of the Constitution of India which is that the arrested person must be well equipped with the information not only about his arrest but the reasons and grounds thereof prior to his production before the magistrate so as to enable him to effectively defend himself and oppose the police and ju....
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....ut to him. The Court underscored that if the authorities are permitted to read out the grounds and claim compliance with the constitutional and statutory mandate, the very purpose of the constitutional protection would be nugatory. 42. As mentioned above, it has been held while dealing with the mode of communicating the grounds of arrest so as to serve the intended purpose of the constitutional mandate that the language used in Article 22(1) and 22(5) regarding communication of the grounds is identical and therefore the interpretation of Article 22(5) shall ipso facto apply to Article 22(1). The grounds of arrest must be furnished in writing, in order to attend the true intended purpose of Article 22(1). Reference at this stage may be made to the Constitution Bench Judgment of this Court in Harikisan (supra) wherein while dealing with the Article 22(5) of the Constitution of India in the context of the right of a detainee to be made aware of the grounds of arrest, it has been held that the same should be furnished in a language which he can understand and in a script which he can read, if he is a literate person. The relevant portion thereof reads thus: "7. It has not b....
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....ith which to make his representation. In order that the detenue should be in a position effectively to make his representation against the Order, he should have knowledge of the grounds of detention, which are in the nature of the charge against him setting out the kinds of prejudicial acts which the authorities attribute to him. Communication, in this context, must, therefore, mean imparting to the detenue sufficient knowledge of all the grounds on which the Order of Detention is based. In this case the grounds are several, and are based on numerous speeches said to have been made by the appellant himself on different occasions and different dates. Naturally, therefore, any oral translation or explanation given by the police officer serving those on the detenue would not amount to communicating the grounds. Communication, in this context, must mean bringing home to the detenue effective knowledge of the facts and circumstances on which the Order of Detention is based. 8. We do not agree with the High Court in its conclusion that in every case communication of the grounds of detention in English, so long as it continues to be the official language of the State, is enough c....
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...., oppose the remand and effectively defend himself by exercising his rights and safeguards as provided in law. The grounds of arrest must be provided to the arrestee in such a manner that sufficient knowledge of facts constituting grounds is imparted and communicated to the arrested person effectively in a language which he/she understands. The mode of communication ought to be such that it must achieve the intended purpose of the constitutional safeguard. The objective of the constitutional mandate would not be fulfilled by mere reading out the grounds to the arrested person, such an approach would be antithesis to the purpose of Article 22(1). There is no harm in providing the grounds of arrest in writing in the language the arrestee understands, this approach would not only fulfil the true intent of the constitutional mandate but will also be beneficial for the investigating agency to prove that the grounds of arrest were informed to the arrestee when a challenge is made to the arrest on the plea of non-furnishing of the grounds of arrest. 46. This Court is of the opinion that to achieve the intended objective of the constitutional mandate of Article 22(1) of the Constitution....
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....me of his arrest or immediately. 50. It may so happen that in the presence of a police officer a cognizable offence is being committed and the factual matrix presents a tangible and imminent risk of the suspect absconding or committing further offence(s). For instance, in a case involving a murder being committed in front of a police officer, it may not be possible for the officer to provide the grounds of arrest in writing before the arrest or forthwith on the arrest to the accused. A rigid insistence upon informing of written ground(s) of arrest before or at the time of effecting the arrest or immediately thereafter may result into police officer not being able to discharge their duty and responsibility efficiently and effectively. The constitutional safeguards, valuable as they are, cannot be interpreted in a manner so as to allow it to metamorphose into a procedural impediment that handicaps the law enforcing agencies in due lawful discharge of their duties. Therefore, a balance between compliance of the constitutional as also the statutorily mandated safeguards on the one hand vis-a-vis the effective discharge of lawful statutory law enforcement duties and responsibilities ....
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....e the basis of arrest and gather relevant material to defend the arrestee proficiently and capably while opposing the remand. Any shorter interval may render such preparation illusory, thereby resulting in non-compliance of the constitutional and statutory mandate. The two-hour threshold before production for remand thus strikes a judicious balance between safeguarding the arrestee's constitutional rights under Article 22(1) and preserving the operational continuity of criminal investigations. 54. In view of the above, we hold with regard to the second issue that non supply of grounds of arrest in writing to the arrestee prior to or immediately after arrest would not vitiate such arrest on the grounds of non-compliance with the provisions of Section 50 of the CrPC 1973 (now Section 47 of BNSS 2023) provided the said grounds are supplied in writing within a reasonable time and in any case two hours prior to the production of the arrestee before the magistrate for remand proceedings. 55. It goes without saying that if the abovesaid schedule for supplying the grounds of arrest in writing is not adhered to, the arrest will be rendered illegal entitling the release of the arrestee....