TaxTMI 
TaxTMI 
2025 (3) TMI 1660
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.... Habeas Corpus, for release of detenu - Pushpinder Pal Singh Dhaliwal, father of the petitioner. (ii) declaration of the arrest of the detenu - Pushpinder Pal Singh Dhaliwal, father of the petiti oner, as illegal. FACTUAL MATRIX 2. Briefly, the facts, as per pleadings, are that in a social media post (Annexure P-1), one Sunanda Sharma, a professional artist, had leveled false allegations against the detenu qua criminal breach of trust, cheating, criminal misappropriation of property, wrongful restraint, defamation, intimidation and harassment. Consequently, on 08.03.2025, at about 7:30 PM, the detenu, a music producer, was picked up from his house in Mohali in a police car. Neither was an FIR registered against the detenu nor an arrest memo or a notice under Section 41-A, Code of Criminal Procedure, 1973 (hereinafter 'Cr. P.C.') were served on him. The detenu is currently being detained at Police Station Mataur, S.A.S. Nagar. CONTENTIONS 3. Learned senior counsel for the petitioner, inter alia, contends that pursuant to the appointment of the Warrant Officer by this Court, he reached the concerned Police Station at 12:40 AM on 09.03.2025. At that time, no arres....
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....ontempt of this Court. 5. Per contra, learned State counsel submits that the arguments advanced by learned senior counsel appearing on behalf of the petitioner are devoid of merit. It is neither a case of illegal detention nor one of custodial torture. It is submitted that DDR, bearing No.28 was recorded on 08.03.2025 at 19:09 hrs upon receipt of secret information indicating the complicity of the father of the petitioner in the alleged offence. Subsequently, vide DDR No. 29, recorded at 19:21 hrs, the departure of the police party for investigation into the matter was duly noted. Thereafter, the arrival of the police party along with the father of the petitioner at the police station was recorded vide GD No. 32 at 19:48 hrs for the purpose of interrogation. During the course of interrogation, an e-mail was received from the Senior Superintendent of Police, forwarding a detailed complaint submitted by one Sunanda Sharma at 09:57 PM. Based on this complaint, FIR No. 0039 (supra) was registered on 08.03.2025 at 23:23 hrs. Accordingly, the arrest of the petitioner's father was effected strictly in compliance with the prescribed legal procedure. It is further contended that there is....
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....nhance transparency, prevent police abuse, and hold law enforcement authorities accountable for their actions. The consistent reiteration of these safeguards underscores the unwavering commitment to protecting fundamental rights and upholding the principles of justice. By setting forth clear norms for police conduct during detention and custody, the judiciary has continuously strived to balance the imperatives of law enforcement with the inviolable rights of individuals, thereby fortifying the constitutional guarantee of justice and human dignity. Reference in this regard can also be made to the guidelines issued by the Hon'ble Supreme Court in cases of Arnesh Kumar Vs. State of Bihar (2014) 8 SCC 273, Satender Kumar Antil Vs. CBI (2022) 10 SCC 51 and Md. Asfak Alam vs. The State of Jharkhand and another (2023) 8 SCC 632. 8. Before proceeding further, it appears that a proper adjudication of the matter requires a study of the following provisions: Article 21, Constitution of India No person shall be deprived of his life or personal liberty except according to procedure established by law. Article 22, Constitution of India (1) No person who is ....
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....ining the opinion of an Advisory Board in accordance with the provisions of subclause (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). BNSS, 2023 Section 2. Definitions.- (1) In this Sanhita, unless the context otherwise requires, - (g)"cognizable offence" means an offence for which, and "cognizable case" means a case in which, a police officer may, in accordance with the First Schedule or under any other law for the time being in force, arrest without warrant; Section 35. When police may arrest without warrant. (erstwhile Section 41 and 41-A of Cr. P.C.) - (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; or (b) against whom a reasonable complaint has been made, or credible information has been received, or a reasonable suspicion exists that he has committe....
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....mplaint has been made, or credible information has been received, or a reasonable suspicion exists, of his having been concerned in, any act committed at any place out of India which, if committed in India, would have been punishable as an offence, and for which he is, under any law relating to extradition, or otherwise, liable to be apprehended or detained in custody in India; or (i) who, being a released convict, commits a breach of any rule made under sub-section (5) of section 394; or (j) for whose arrest any requisition, whether written or oral, has been received from another police officer, provided that the requisition specifies 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 39, 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. ....
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....in person, or shall depute one of his subordinate officers not being below such rank as the State Government may, by general or special order, prescribe in this behalf, to proceed, to the spot, to investigate the facts and circumstances of the case, and, if necessary, to take measures for the discovery and arrest of the offender: Provided that- (a) when information as to the commission of any such offence is given against any person by name and the case is not of a serious nature, the officer in charge of a police station need not proceed in person or depute a subordinate officer to make an investigation on the spot; (b) if it appears to the officer in charge of a police station that there is no sufficient ground for entering on an investigation, he shall not investigate the case: Provided further that in relation to an offence of rape, the recording of statement of the victim shall be conducted at the residence of the victim or in the place of her choice and as far as practicable by a woman police officer in the presence of her parents or guardian or near relatives or social worker of the localityand such statement may also be recorded through a....
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....yes of the society, the mere act of being taken into custody is equated with guilt, regardless of the eventual outcome of the case. The stigma lingers, which severely affects the person's social standing. Unlike a legal acquittal, which is confined to the court records, public perception is shaped by the spectacle of arrest itself, fueling suspicion and causing irreversible damage to one's dignity. In this way, even a fleeting moment in custody can cast a lifelong shadow. 11. A three Judge bench of the Hon'ble Supreme Court in Joginder Kumar vs. State of U.P., (1994) 4 SCC 260 has held that the rights enshrined in Article 21 and 22(1) of the Constitution of India are required to be recognized and scrupulously protected. Speaking through the then Chief Justice M.N. Venkatachaliah, the following observations were made: "24. The above guidelines are merely the incidents of personal liberty guaranteed under the Constitution of India. No arrest can be made because it is lawful for the Police Officer to do so. The existence of the power to arrest is one thing. The justification for the exercise of it is quite another. The Police Officer must be able to justify the arrest apar....
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.... the arrestee remains unaware of the reason of his arrest. Significantly, this requirement acts as a check on the misuse of power by the law enforcement agencies, as it causes them to produce a lawful justification for any arrest made by them, especially in cases where no warrant is issued. 13. Article 21 of the Constitution of India bestows the precious and most cherished fundamental right to liberty on individuals, which is directly curtailed when one is placed under arrest. Given the gravity of the same, the duty to communicate the grounds of arrest in a meaningful and comprehensible manner becomes all the more imperative. In order to realize the constitutional mandate and ensure it is not reduced to a hollow formality, such information must be conveyed in a manner that enables the arrestee to effectively respond. Merely conveying the grounds in technical or mechanical terms, without ensuring his comprehension, would defeat the overarching goal which is to protect the individual from unlawful detention, prevent misuse of power and reinforce the rule of law. 14. Recently, a two Judge bench of the Hon'ble Supreme Court in Vihaan Kumar vs. State of Haryana and another, 2025 S....
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....ringement of this fundamental right would vitiate the process of arrest and remand. Mere fact that a chargesheet 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) xxx xxx xxx 14. ...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 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. This Court has suggested that the proper and ideal course of communicating the grounds of arrest is to provide grounds of arrest in writing. Obviously, before a police officer communicates the grounds of arrest, the grounds of arres....
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....inal Procedure (Amendment) Act, 2008. A scrutiny of the said provision makes it clear that in all cases where the arrest of a person is not required under Section 41 of Cr. P.C. (now Section of 35 BNSS), the police officer is required to issue notice directing the accused to appear before him at a specified place and time. It is obligatory for the accused to appear before the police officer once such notice is served. Moreover, if the accused complies with the terms of notice, he shall not be arrested, unless the police officer is of the opinion that the arrest is necessary and the reasons for the same are recorded in writing. 16. Adverting to the facts of the case, on 08.03.2025 at 7:30 PM, the detenu was picked up from his residence by the police on the pretext of questioning and upon his arrival at Police Station Mataur, a DDR, bearing No. 32 was recorded at 07:48 PM. At this point, undisputedly, no FIR or complaint had been registered against him. This is reinforced by the fact that the Warrant Officer was not provided with a copy of the FIR or the memo of arrest of the detenu when he arrived at the Police Station Mataur. It was only at 02:26 AM on 09.03.2025 that the SHO ha....
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.... basis of this credible information, that the accused has committed the offence. A perusal of the record indicates that no reasons were recorded by the police, after conducting some investigation as to the genuineness of the allegations, that the information received is credible and arrest of the detenu is necessary. 18. Judicial and procedural justice are essential components of administration of justice. The bypassing of procedural justice often prejudices the trial and impedes the constitutional right of the parties to free and fair trial. While it is true that procedure is the hands maid of justice, pragmatic judicial practice requires that only when it is expedient in the interest of justice and does not cause prejudice to the prosecution or the defence, that deviation from the procedure may be made. However, when the fundamental rights of an individual are at stake, adherence to procedural safeguards is not merely desirable but a constitutional mandate, admitting of no deviation whatsoever. Otherwise, any such deviation from the procedural safeguards would be impermissible and would defeat the ends of justice. Additionally, it is a settled law that where a power is give....