Supreme Court of India
PRABIR PURKAYASTHAversusSTATE (NCT OF DELHI)
- Citation
- 2024 INSC 414
- Decided
- 15 May 2024
- Disposal
- Appeal(s) allowed
Holding
An arrest and subsequent police‑custody remand are invalid if the accused is not furnished with the written grounds of arrest before the remand, as mandated by Article 22(1) and the identical statutory duties under UAPA s.43B(1) and PMLA s.19(1).
Summary
The appellant was arrested under the Unlawful Activities (Prevention) Act (UAPA) on 3 October 2023 without the arrest memo containing the specific grounds of arrest, only generic reasons. He was presented before a Remand Judge on 4 October 2023 and remanded to police custody, but the copy of the remand application and the written grounds of arrest were only transmitted to his counsel after the remand order was passed. The Supreme Court examined whether the failure to communicate the grounds of arrest in writing, as mandated by Article 22(1) of the Constitution and the statutory provisions of UAPA and PMLA, vitiated the arrest and subsequent remand. Relying on the ratio in Pankaj Bansal v. Union of India and interpreting Sections 43B(1) of UAPA and 19(1) of PMLA as identical, the Court held that the requirement to furnish written grounds of arrest is sacrosanct and applies pari passu. Consequently, the arrest, the police‑custody remand, and the High Court’s order were declared illegal and set aside, and the appellant was directed to be released on bail. The appeal was allowed.
Issues considered
- The arrest memo failed to disclose the specific grounds of arrest as required by Article 22(1) of the Constitution.
- Whether the failure to provide the written grounds of arrest to the accused or his counsel before remand renders the arrest and police custody illegal.
- Whether the statutory provisions of UAPA (s.43B) and PMLA (s.19) impose an identical duty to communicate grounds of arrest in writing.
- Whether the ratio in Pankaj Bansal v. Union of India applies prospectively to the present case.
Legislation cited
- Code of Criminal Procedure, 1973s. 167, s. 57
- Constitution of Indias. 20, s. 21, s. 22(1), s. 22(5)
- Indian Penal Code, 1860s. 120B, s. 153A
- Prevention of Money Laundering Act, 2002s. 19
- Unlawful Activities (Prevention) Act, 1967s. 13, s. 16, s. 17, s. 18, s. 22C, s. 43A, s. 43B, s. 43C
Subjects
Remand applicationOrder of remandArrest memoGrounds of arrestGrounds of detentionInforming grounds of arrest in writingCommunication of grounds of arrest to person arrestedPolice custody remandCustodial remandRight to be informed about grounds of arrestReasons for arrestPreventive detentionOrder of detentionOrder of detention communicated to detenue in writingCustody or detention illegalRight to Life and Personal LibertyFundamental right
Judgment
[2024] 6 S.C.R. 666 : 2024 INSC 414
Prabir Purkayastha
v.
State (NCT of Delhi)
(Criminal Appeal No. 2577 of 2024)
15 May 2024
[B.R. Gavai and Sandeep Mehta,* JJ.]
Issue for Consideration
Whether the arrest and subsequent remand of the accused-
appellant was vitiated as the copy of the remand application
was not provided to him or his counsel before passing of the
order of remand thus, not informing him of the grounds of arrest
in writing.
Headnotes
Unlawful Activities (Prevention) Act, 1967 – Constitution
of India – Articles 22(1) and 22(5) – FIR registered u/ss.13,
16, 17, 18, 22C, UAPA r/w ss.153A, 120B, IPC – Appellant
was arrested in connection therewith however, the arrest
memo did not contain the ‘grounds of arrest’ – Appellant
subsequently remanded to police custody by Remand
Judge – Grounds of arrest were thus, not furnished to the
appellant at the time of his arrest and before remanding him
to police custody – Arrest and the police custody remand
challenged by the appellant – Rejected by Single Judge of
the High Court by impugned judgment – Validity:
Held: Requirement to communicate the grounds of arrest or
the grounds of detention in writing to a person arrested in
connection with an offence or a person placed under preventive
detention as provided under Articles 22(1) and 22(5) of the
Constitution of India is sacrosanct and cannot be breached
under any situation – Non-compliance of this constitutional
requirement and statutory mandate would lead to the custody
or the detention being rendered illegal – Grounds of arrest
must be communicated in writing to the person arrested of an
offence at the earliest – Arrest memo nowhere conveyed the
grounds on which the appellant was being arrested – It was
simply a proforma indicating the formal ‘reasons’ for which
* Author
[2024] 6 S.C.R. 667
Prabir Purkayastha v. State (NCT of Delhi)
he was being arrested – Copy of the FIR was provided to
the Advocate representing the accused for the first time on
5.10.2023 – Appellant was arrested on 3.10.2023 at 5:45 p.m.
as per the arrest memo – Investigating Officer (IO) had a clear
window till 5:44 p.m. on 4.10.2023 for producing the appellant
before the Magistrate concerned and to seek his police custody
remand, if required – The advocate of the appellant presented
himself at the police station on 3.10.2023 after the appellant
was arrested and his mobile number was available with the IO
however, the appellant was presented before the Remand Judge
at his residence sometime before 6:00 a.m. on 3.10.2023 – A
remand Advocate was kept present in the Court purportedly to
provide legal assistance to the appellant – This entire exercise
was done in a clandestine manner and was 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 was arrested; deprive him 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 reason as to why, information
about the proposed remand application was not sent in advance
to his Advocate – The remand application was transmitted to
the advocate of the appellant after the remand was granted by
the Remand Judge which was at 6:00 a.m. as per the remand
order dtd. 4.10.2023 – The remand order recorded that the copy
of the remand application was sent to the Advocate engaged
by the appellant through WhatsApp – These lines give a clear
indication of subsequent insertion – The order of remand had
already been passed at 6:00 a.m. and hence, the subsequent
opportunity of hearing, if any, provided to the counsel was
nothing but an exercise in futility – 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 or
his counsel before passing of the order of remand dtd. 4.10.2023
which vitiated his arrest and subsequent remand – Arrest of
the appellant followed by remand order dtd. 4.10.2023 and the
impugned order passed by the High Court are invalid and are
quashed and set aside – Appellant entitled to be released from
custody by applying the ratio in Pankaj Bansal v. Union of India
and Others [2023] 12 SCR 714. [Paras 30, 33, 34, 36, 39, 50, 51]
668 [2024] 6 S.C.R.
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Unlawful Activities (Prevention) Act, 1967 – s.43B(1) –
Prevention of Money Laundering Act, 2002 – s.19(1) –
Constitution of India – Article 22(1) – Appellant placed
reliance on the judgment in Pankaj Bansal v. Union of India
and Others [2023] 12 SCR 714 to contend that in the said
case s.19(1) of PMLA which is pari materia to s.43B(1) of the
UAPA was interpreted and it was held that if the initial arrest
is not in conformity with law, mere passing of successive
remand orders would not be sufficient to validate the same:
Held: There is no significant difference in the language employed
in Section 19(1) of the PMLA and Section 43B(1) of the UAPA
– The provision regarding the communication of the grounds
of arrest to a person arrested contained in Section 43B(1) of
the UAPA is verbatim the same as that in Section 19(1) of the
PMLA – The contention advanced by the respondent that there
are some variations in the overall provisions contained in Section
19 of the PMLA and Section 43A and 43B of the UAPA would not
have any impact on the statutory mandate requiring the arresting
officer to inform the grounds of arrest to the person arrested
under Section 43B(1) of the UAPA at the earliest because, the
requirement to communicate the grounds of arrest is the same
in both the statutes – Both the provisions find their source in
the constitutional safeguard provided under Article 22(1) of the
Constitution – Hence, applying the golden rules of interpretation,
the provisions which lay down a very important constitutional
safeguard to a person arrested on charges of committing an
offence either under the PMLA or under the UAPA, have to be
uniformly construed and applied – The interpretation of statutory
mandate laid down in Pankaj Bansal on the aspect of informing
the arrested person the grounds of arrest in writing has to be
applied pari passu to a person arrested in a case registered
under the provisions of the UAPA. [Paras 17, 19]
Unlawful Activities (Prevention) Act, 1967 – Constitution of
India – Articles 20, 21 and 22 – Right to be informed about
grounds of arrest in writing – Purpose:
Held: 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
[2024] 6 S.C.R. 669
Prabir Purkayastha v. State (NCT of Delhi)
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 u/
Article 22(1) – The Right to Life and Personal Liberty is the most
sacrosanct fundamental right guaranteed u/Articles 20, 21 and
22 – Any attempt to violate such fundamental right, guaranteed
by Articles, 20, 21 and 22 of the Constitution of India, would
have to be dealt with strictly – 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 – The plea of the respondent that there
was no requirement under law to communicate the grounds of
arrest in writing to the appellant is rejected. [Paras 20-22]
Criminal Law – Arrest memo – ‘reasons for arrest’ vis-à-vis
‘grounds of arrest’ – ‘grounds of arrest’ cannot be equated
with the ‘reasons of arrest’:
Held: There is a significant difference in the phrase ‘reasons
for arrest’ and ‘grounds of arrest’ – The ‘reasons for arrest’ as
indicated in the arrest memo are purely formal parameters,
viz., to prevent the accused person from committing any further
offence; for proper investigation of the offence; to prevent the
accused person from causing the evidence of the offence to
disappear or tempering with such evidence in any manner; to
prevent the arrested person for making inducement, threat or
promise to any person acquainted with the facts of the case so
as to dissuade him from disclosing such facts to the Court or
to the Investigating Officer – These reasons would commonly
apply to any person arrested on charge of a crime whereas the
‘grounds of arrest’ would be required to contain all such details
in hand of the Investigating Officer which necessitated the arrest
of the accused – Simultaneously, the grounds of arrest informed
in writing must convey to the arrested accused all basic facts on
670 [2024] 6 S.C.R.
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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. [Para 49]
Constitution of India – Article 141 – Plea of the respondent
that the judgment in Pankaj Bansal v. Union of India and
Others [2023] 12 SCR 714 relied upon by the accused-
appellant would not apply to the proceedings of remand
made on 4.10.2023 as the appellant was remanded to police
custody on 4.10.2023 whereas the judgment in Pankaj Bansal
was uploaded on the website of Supreme Court in the late
hours of 4.10.2023 and hence, the arresting officer could not
be expected to ensure compliance of the directions given
therein and thus, the alleged inaction of the IO in furnishing
the grounds of arrest in writing to the appellant cannot be
called into question as the judgment in Pankaj Bansal was
uploaded and brought in public domain after the remand
order had been passed:
Held: Said plea is misconceived – Indisputably, the appellant was
remanded to police custody on 4.10.2023 whereas the judgment
in the case of Pankaj Bansal was delivered on 3.10.2023 – Merely
on a conjectural submission regarding the late uploading of the
judgment, the respondent cannot be permitted to argue that
the ratio of Pankaj Bansal would not apply to the present case
– Once this Court has interpreted the provisions of the statute
in context to the constitutional scheme and has laid down that
the grounds of arrest have to be conveyed to the accused in
writing expeditiously, the said ratio becomes the law of the land
binding on all the Courts in the country by virtue of Article 141
of the Constitution of India. [Para 45]
Constitution of India – Article 22(5), 22(1) – Respondent
referring to language of Article 22(5) contended that even
in a case of preventive detention, the Constitutional scheme
does not require that the grounds on which the order of
detention has been passed should be communicated to the
detenue in writing:
Held: Said submission is ex facie untenable in eyes of law – It
has been the consistent view of this Court that the grounds on
[2024] 6 S.C.R. 671
Prabir Purkayastha v. State (NCT of Delhi)
which the liberty of a citizen is curtailed, must be communicated
in writing so as to enable him to seek remedial measures
against the deprivation of liberty – The language used in Article
22(1) and Article 22(5) of the Constitution of India regarding the
communication of the grounds is exactly the identical – Neither of
the constitutional provisions require that the ‘grounds’ of “arrest”
or “detention”, as the case may be, must be communicated
in writing – Thus, interpretation to this important facet of the
fundamental right as made by the Constitution Bench in Harikisan
v. State of Maharashtra and Others [1962] Supp. 2 SCR 918
while examining the scope of Article 22(5) of the Constitution of
India would ipso facto apply to Article 22(1) of the Constitution
of India insofar the requirement to communicate the grounds of
arrest is concerned. [Paras 27-29]
Case Law Cited
Harikisan v. State of Maharashtra and Others [1962]
Supp. 2 SCR 918 : 1962 SCC OnLine SC 117 –
followed.
Pankaj Bansal v. Union of India and Others [2023] 12
SCR 714 : 2023 SCC OnLine SC 1244; Roy V.D. v.
State of Kerala [2000] Supp. 4 SCR 539 : (2000) 8 SCC
590; Lallubhai Jogibhai Patel v. Union of India and Ors.
[1981] 2 SCR 352 : (1981) 2 SCC 427 – relied on.
Ram Kishor Arora v. Directorate of Enforcement [2023]
16 SCR 743 : 2023 SCC OnLine SC 1682 – referred to.
List of Acts
Unlawful Activities(Prevention) Act, 1967; Constitution of India;
Penal Code, 1860.
List of Keywords
Remand application; Order of remand; Arrest memo; Grounds
of arrest; Grounds of detention; Informing grounds of arrest in
writing; Communication of grounds of arrest to person arrested;
Police custody remand; Custodial remand; Right to be informed
about grounds of arrest; ‘Reasons for arrest’; ‘Grounds of arrest’;
Preventive detention; Order of detention; Order of detention
communicated to detenue in writing; Custody or detention illegal;
Right to Life and Personal Liberty; Fundamental right.
672 [2024] 6 S.C.R.
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Case Arising From
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 2577
of 2024
From the Judgment and Order dated 13.10.2023 of the High Court
of Delhi at New Delhi in CRLMC No. 7278 of 2023
Appearances for Parties
Kapil Sibal, Siddharth Aggarwal, Sr. Advs., Arshdeep Singh Khurana,
Nitin Saluja, Harsh Srivastava, Harshit Mahalwal, Sidak Singh Anand,
Manan Khanna, Nikhil Pawar, Ms. Saujanya Shankar, Ms. Rupali
Samual, Ms. Pinky Dubey, Ms. Simran Khurana, Ms. Ishita Soni, Ms.
Pranya Madan, Saahil Mongia, Advs. for the Appellant.
Suryaprakash V Raju, A.S.G., Zoheb Hussain, Mukesh Kumar
Maroria, Annam Venkatesh, Kanu Agrawal, Arkaj Kumar, Advs. for
the Respondent.
Judgment / Order of the Supreme Court
Judgment
Mehta, J.
1. Leave granted.
2. The instant appeal by special leave is preferred on behalf of the
appellant for assailing the order dated 13th October, 2023 passed by
learned Single Judge of the High Court of Delhi whereby the learned
Single Judge dismissed the Criminal Miscellaneous Case No. 7278
of 2023 filed by the appellant seeking the following directions: -
“A. Declare the arrest of the Petitioner as illegal and in
gross violation of the fundamental rights of the Petitioner
guaranteed under Article 21 and 22 of the Constitution of
India in relation to FIR No. 224/2023 dated 17.08.2023
PS Special Cell, Lodhi Road, Delhi Police;
B. Declare and set aside the Remand Order dated
04.10.2023 passed by the Ld. Special Judge, Patiala
House Court as null and void as the same being passed in
complete violation of all constitutional mandates including
failure to consult and to be defended by legal practitioner
of his choice during the Remand Proceedings, being
[2024] 6 S.C.R. 673
Prabir Purkayastha v. State (NCT of Delhi)
violative of Petitioner’s right guaranteed under Article 22
of the Constitution of India.
C. Direct immediate release of the Petitioner from custody
in FIR No. 224/2023 dated 17.08.2023 PS Special Cell,
Lodhi Road, Delhi Police.”
Brief Facts: -
3. The officers of the PS Special Cell, Lodhi Colony, New Delhi carried
out extensive raids at the residential and official premises of the
appellant and the company, namely, M/s. PPK Newsclick Studio
Pvt. Ltd. (“said company”) of which the appellant is the Director
in connection with FIR No. 224 of 2023 dated 17th August, 2023
registered at PS Special Cell, Lodhi Colony, New Delhi for the
offences punishable under Sections 13, 16, 17, 18, 22C of the
Unlawful Activities (Prevention) Act, 1967 (for short “UAPA”) read
with Section 153A, 120B of the Indian Penal Code, 1860 (hereinafter
being referred to as the ‘IPC’). During the course of the search
and seizure proceedings, numerous documents and digital devices
belonging to the appellant, the company and other employees of the
company were seized. The appellant was arrested in connection with
the said FIR on 3rd October, 2023 vide arrest memo (Annexure P-7)
prepared at PS Special Cell, Lodhi Colony, New Delhi.
4. It is relevant to mention here that the said arrest memo is in a
computerised format and does not contain any column regarding
the ‘grounds of arrest’ of the appellant. This very issue is primarily
the bone of contention between the parties to the appeal.
5. The appellant was presented in the Court of Learned Additional
Sessions Judge-02, Patiala House Courts, New Delhi (hereinafter
being referred to as the ‘Remand Judge’) on 4th October, 2023,
sometime before 6:00 a.m. which fact is manifested from the remand
order (Annexure P-1) placed on record of appeal with I.A. No. 217857
of 2023. The appellant was remanded to seven days police custody
vide order dated 4th October, 2023.
6. The proceedings of remand have been seriously criticized as being
manipulated by Shri Kapil Sibal, learned senior counsel for the
appellant and aspersions of subsequent insertions in the remand
order have been made. Hence, it would be apposite to reproduce
the remand order dated 4th October, 2023 in pictorial form so as to
form a part of this judgment.
674 [2024] 6 S.C.R.
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[2024] 6 S.C.R. 675
Prabir Purkayastha v. State (NCT of Delhi)
7. The appellant promptly questioned his arrest and the police custody
remand granted by the learned Remand Judge vide order dated
4th October, 2023 by preferring Criminal Miscellaneous Case No.
7278 of 2023 in the High Court of Delhi which stands rejected by
the learned Single Judge of the High Court of Delhi vide judgment
dated 13th October, 2023. The said order is subjected to challenge
in this appeal by special leave.
Submissions on behalf of the appellant: -
8. Shri Kapil Sibal, learned senior counsel representing the appellant
canvassed the following submissions in order to question the
proceedings of arrest and remand of the appellant: -
(i) That the FIR No. 224 of 2023 (FIR in connection of which
appellant was arrested) is virtually nothing but a second FIR
on same facts because prior thereto, another FIR No. 116
of 2020 dated 26th August, 2020 had been registered by PS
EOW, Delhi Police (“EOW FIR”) alleging violation of Foreign
Direct Investment (FDI) regulations and other laws of the
country by the appellant and the company, thereby causing
loss to the exchequer. A copy of the said FIR was, however,
not provided to the appellant. By treating the EOW FIR as
disclosing predicate offences, the Directorate of Enforcement
(for short “ED”) registered an Enforcement Case Information
Report (for short ‘ECIR’) for the offences punishable under
Sections 3 and 4 of the Prevention of Money Laundering Act,
2002 (for short ‘PMLA’). The ED carried out extensive search
and seizure operations at various places including the office
of the company-M/s. PPK Newsclick Studio Pvt. Ltd., of which
the appellant is the Director.
(ii) The company assailed the ECIR by filing Writ Petition (Crl.)
Nos. 1129 of 2021 and 1130 of 2021 wherein interim protection
against coercive steps was granted by High Court of Delhi
on 21st June, 2021. The appellant was also provided interim
protection in an application seeking anticipatory bail vide order
dated 7th July, 2021.
(iii) The FIR No. 224 of 2023 has been registered purely on
conjectures and surmises without there being any substance
in the allegations set out in the report. The contents of the FIR
which were provided to the appellant at a much later stage
676 [2024] 6 S.C.R.
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discloses a purely fictional story without any fundamental facts
or material warranting registration of the FIR.
(iv) Admittedly, the copy of FIR No. 224 of 2023 was neither made
available in the public domain nor a copy thereof supplied to
the appellant until his arrest and remand which is in complete
violation of the fundamental Right to Life and Personal Liberty
enshrined in Articles 20, 21 and 22 of the Constitution of India.
(v) Shri Sibal pointed out that the learned Remand Judge, vide
order dated 5th October, 2023, allowed the application filed by the
appellant seeking certified copy of the said FIR which was provided
to the learned counsel for the appellant in the late evening on 5th
October, 2023, i.e., well after the appellant had been remanded
to police custody.
(vi) That the grounds of arrest were not informed to the appellant either
orally or in writing and that such action is in gross violation of the
constitutional mandate under Article 22(1) of the Constitution of
India and Section 50 of the Code of Criminal Procedure, 1973
(hereinafter being referred to as the ‘CrPC’).
(vii) Reliance was placed by the learned senior counsel on the
judgment of this Court in Pankaj Bansal v. Union of India
and Others1 and it was contended that the mere passing of
successive remand orders would not be sufficient to validate
the initial arrest, if such arrest was not in conformity with law.
Learned senior counsel urged that this Court in the case of
Pankaj Bansal (supra) interpreted the provision of Section
19(1) of PMLA which is pari materia to the provisions contained
in Section 43B(1) of the UAPA. Thus, the said judgment fully
applies to the case of the appellant.
(viii) Shri Sibal referred to the observations made in the judgment of
Pankaj Bansal (supra) and urged that since the grounds of arrest
were not furnished to the appellant at the time of his arrest and
before remanding him to police custody, the continued custody
of the appellant is rendered grossly illegal and a nullity in the
eyes of law because the same is hit by the mandate of Article
22(1) of the Constitution of India.
1 [2023] 12 SCR 714 : 2023 SCC OnLine SC 1244
[2024] 6 S.C.R. 677
Prabir Purkayastha v. State (NCT of Delhi)
(ix) Shri Sibal further urged that the view taken by a two-Judge
Bench of this Court in Ram Kishor Arora v. Directorate of
Enforcement2 holding the judgment in Pankaj Bansal (supra)
to be prospective in operation would also not come in the way
of the appellant in seeking the relief. He pointed out that the
judgment in the case of Pankaj Bansal (supra) was pronounced
on 3rd October, 2023 whereas the illegal remand order of the
appellant was passed on 4th October, 2023 and hence, the law
laid down in the case of Pankaj Bansal (supra) is fully applicable
to the case of the appellant despite the interpretation given in
Ram Kishor Arora (supra).
(x) That the arrest of the appellant is in gross violation of the
provisions contained in Article 22 of the Constitution of India,
hence, the appellant is entitled to seek a direction for quashment
of the remand order and release from custody forthwith.
(xi) That the action of the Investigating Officer in arresting and in
seeking remand of the appellant is not only mala fide but also
fraught with fraud of the highest order.
(xii) Referring to the remand order dated 4th October, 2023, it was
contended that the appellant was kept confined overnight by
the Investigating Officer without conveying the grounds of
arrest to him. He was presented in the Court of the learned
Remand Judge on 4th October, 2023 in the early morning without
informing Shri Arshdeep Khurana, the Advocate engaged on
behalf of the appellant who was admittedly in contact with the
Investigating Officer because he had attended the proceedings
at the Police Station Lodhi Colony, post the appellant’s arrest.
In order to clandestinely procure police custody remand of the
appellant, the Investigating Officer, presented the appellant at
the residence of learned Remand Judge before 6:00 a.m. by
informing a remand Advocate Shri Umakant Kataria who had
never been engaged by the appellant to plead his cause.
(xiii) Learned Remand Judge remanded the accused to police custody
at 6:00 a.m. sharp as is evident from the remand order (supra).
Shri Arshdeep Khurana, the appellant’s Advocate was informed
2 [2023] 16 SCR 743 : 2023 SCC OnLine SC 1682
678 [2024] 6 S.C.R.
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about the order granting remand by a WhatsApp message at
7:07 a.m. but the same was an exercise in futility because
there was no possibility that the learned Advocate could have
reached the residence of the learned Remand Judge in time
to oppose the prayer for remand.
(xiv) That, as a matter of fact, the remand application had already
been accepted at 6:00 a.m. which fact is manifested from the
time appended at the end of the remand order (supra). The
learned Remand Judge signed the proceedings by recording
the time as 6:00 a.m. Hence, there is no escape from the
conclusion that the remand order was passed without supplying
copy of the grounds of arrest to the appellant or the Advocate
engaged by him. The appellant was intentionally deprived from
information about the grounds of his arrest and thereby he and
his Advocate were prevented from opposing the prayer of police
custody remand and from seeking bail.
(xv) He further urged that the stand taken by the respondent that the
grounds of arrest were conveyed to the learned counsel for the
appellant well before the learned Remand Judge passed the
remand order is unacceptable on the face of the record because
the time of passing the remand order is clearly recorded in
the order dated 4th October, 2023 as 6:00 a.m. Admittedly, the
grounds of arrest were conveyed to Shri Arshdeep Khurana,
Advocate for the appellant well after 7:00 a.m. It was contended
that the noting made by the learned Remand Judge in the
order dated 4th October, 2023 that the learned counsel for
the appellant was heard on the application for remand is a
subsequent insertion clearly visible from the remand order. The
fact of subsequent insertion of these lines is fortified from the
fact that the appellant had already been remanded to police
custody by the time the Advocate was informed and the copy
of the remand application containing the purported grounds of
arrest was transmitted to him.
(xvi) That the foundational facts in the FIR No. 224 of 2023 are
almost identical to the allegations set out in the EOW FIR. The
appellant had been granted protection against arrest by the
High Court of Delhi in the EOW FIR. Owing to this protection,
the mala fide objective of the authorities in putting the appellant
[2024] 6 S.C.R. 679
Prabir Purkayastha v. State (NCT of Delhi)
behind bars was not being served and, therefore, a new FIR
No. 224 of 2023 with totally cooked up allegations came to
be registered and the appellant was illegally deprived of his
liberty without the copy of the FIR been provided and without
the grounds of arrest being conveyed to the appellant.
9. On these grounds, Shri Sibal implored the Court to accept the appeal,
set aside the impugned orders and direct the release of the appellant
from custody in connection with the above FIR.
Submission on behalf of the respondent: -
10. Per contra, Shri Suryaprakash V. Raju, learned ASG, appearing for
the respondent vehemently and fervently opposed the submissions
advanced by the learned counsel for the appellant and made the
following pertinent submissions:-
(i) He urged that the judgment in the case of Pankaj Bansal
(supra) has been held to be prospective in operation by this
Court in the case of Ram Kishor Arora (supra).
(ii) The appellant was remanded to police custody on 4th October,
2023 whereas the judgment in the case of Pankaj Bansal
(supra) was uploaded on the website of this Court in the late
hours of 4th October, 2023 and hence, the arresting officer could
not be expected to ensure compliance of the directions given
in the said judgment. He thus urged that the alleged inaction
of the Investigating Officer in furnishing the grounds of arrest
in writing to the appellant cannot be called into question as the
judgment in Pankaj Bansal (supra) was uploaded and brought
in public domain after the remand order had been passed.
(iii) Without prejudice to the above, learned ASG urged that as per
the appellant’s version set out in the pleadings filed before the
High Court of Delhi, he was actually remanded to the police
custody after 7:00 a.m. With reference to these pleadings, Shri
Raju contended that the appellant cannot be heard to urge that
he was remanded to the police custody in an illegal manner
and without the grounds of arrest having been conveyed to
him in writing.
(iv) Learned ASG referred to the provisions contained in Articles
22(1) and 22(5) of the Constitution of India and urged that
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there is no such mandate in either of the provisions that the
grounds of arrest or detention should be conveyed in writing to
the accused or the detenue, as the case may be.
(v) He urged that the right conferred upon the appellant by Article
22(1) of the Constitution of India to consult and to be defended
by a legal practitioner was complied with in letter and spirit
because the relative of the appellant, namely, Shri Rishabh
Bailey, was informed before producing the appellant before the
learned Remand Judge. Admittedly, Shri Rishabh Bailey had
intimated the appellant’s Advocate, Shri Arshdeep Khurana
regarding the proposed proceedings of police custody remand
of the appellant.
(vi) He urged that the Advocate transmitted a written objection
against the prayer for police custody remand over WhatsApp
through the Head Constable Rajendra Singh and the learned
Remand Judge has taken note of the said objection opposing
remand in the remand order dated 4th October, 2023 and thus
it would be futile to argue that the order granting remand is
illegal in any manner.
(vii) Learned ASG further contended that now the investigation has
been completed and charge sheet has also already been filed
and, thus, the illegality/irregularity, if any, in the arrest of the
appellant and the grant of initial police custody remand stands
cured and hence, the appellant cannot claim to be prejudiced
by the same.
(viii) He vehemently urged that there are significant differences in
the language employed in Section 19 of the PMLA and Section
43A and 43B of the UAPA and, thus, the law as laid down by
this Court in Pankaj Bansal (supra) does not come to the aid
of the appellant in laying challenge to the remand order.
(ix) Learned ASG further urged that there is a presumption regarding
the correctness of acts performed in discharge of judicial
functions and hence, the noting recorded in the remand order
dated 4th October, 2023 that the Advocate for the appellant had
been heard on the remand application and that the grounds of
arrest had been conveyed to the appellant cannot be questioned
or doubted. He thus implored the Court to dismiss the appeal
and affirm the order passed by the High Court of Delhi.
[2024] 6 S.C.R. 681
Prabir Purkayastha v. State (NCT of Delhi)
Rejoinder on behalf of learned counsel for the appellant: -
11. Shri Sibal, learned senior counsel for the appellant submitted that the
argument advanced by learned ASG that the provisions contained
in Section 19 of the PMLA and Section 43A and 43B of the UAPA
operate in different spheres, is misconceived. He urged that language
of both the provisions is pari materia and hence, the law laid down
in Pankaj Bansal (supra) fully covers the controversy at hand.
12. Shri Sibal emphasised that on a plain viewing of the order dated
4th October, 2023, it is clear that the lines indicating the sending of
the copy of the remand application to the learned counsel for the
appellant and the opportunity of hearing provided to the Advocate
through telephone call have been subsequently inserted in the order.
He thus urged that the plea advanced by Shri Raju, learned ASG
that there is a presumption regarding the correctness of judicial
proceedings cannot be accepted as a gospel truth in the peculiar
facts of the case at hand. He contended that applying the same
principle to the remand order dated 4th October, 2023 is counter
productive to the stand taken by learned ASG inasmuch as, the order
records the time of passing as 6:00 a.m. whereas the Advocate was
admittedly informed after 7:00 a.m. Thus, there was no possibility
of the remand application being sent to the Advocate or he being
heard before passing of the remand order. He, thus, reiterated his
submissions and sought acceptance of the appeal.
Discussion and conclusion: -
13. We have given our thoughtful considerations to the submissions
advanced at bar and have gone through the material placed on record.
14. Since, learned ASG has advanced a fervent contention regarding
application of ratio of Pankaj Bansal (supra) urging that there is an
inherent difference between the provisions contained in Section 19
of the PMLA and Section 43A and 43B of the UAPA, it would first
be apposite for us to address the said submission.
15. In the case of Pankaj Bansal (supra), this Court after an elaborate
consideration of the provisions contained in PMLA, CrPC and the
constitutional mandate as provided under Article 22 held as below: -
“32. 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
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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 of the Act of
2002 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 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 authorized
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 Act of 2002. 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 of the Act of 2002, is meant to serve this
higher purpose and must be given due importance.
36. 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
[2024] 6 S.C.R. 683
Prabir Purkayastha v. State (NCT of Delhi)
person against the word of the authorized officer as
to whether or not there is due and proper compliance
in this regard. In the case on hand, that is the situation
insofar as Basant Bansal is concerned. Though the ED
claims that witnesses were present and certified that the
grounds of arrest were read out and explained to him in
Hindi, that is neither here nor there as he did not sign
the document. Non-compliance in this regard would entail
release of the arrested person straightaway, as held in V.
Senthil Balaji (supra). Such a precarious situation is easily
avoided and the consequence thereof can be obviated
very simply by furnishing the written grounds of arrest,
as recorded by the authorized officer in terms of Section
19(1) of the Act of 2002, to the arrested person under due
acknowledgment, instead of leaving it to the debatable
ipse dixit of the authorized officer.
37. 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 (supra) 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 not serve the intended purpose. Further, in the
event 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
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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) of the
Act of 2002.
38. We may also note that the grounds of arrest recorded
by the authorized officer, in terms of Section 19(1) of the Act
of 2002, 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 authorized 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.
39. On the above analysis, to give true meaning and
purpose to the constitutional and the statutory mandate
of Section 19(1) of the Act of 2002 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 decisions of the Delhi High Court in Moin Akhtar
Qureshi (supra) and the Bombay High Court in Chhagan
Chandrakant Bhujbal (supra), which hold to the contrary,
do not lay down the correct law. In the case on hand,
the admitted position is that the ED’s Investigating
Officer merely read out or permitted reading of the
grounds of arrest of the appellants and left it at that,
which is also disputed by the appellants. As this form
of communication is not found to be adequate to fulfil
compliance with the mandate of Article 22(1) of the
Constitution and Section 19(1) of the Act of 2002, we
have no hesitation in holding that their arrest was
[2024] 6 S.C.R. 685
Prabir Purkayastha v. State (NCT of Delhi)
not in keeping with the provisions of Section 19(1)
of the Act of 2002. Further, as already noted supra, the
clandestine conduct of the ED in proceeding against the
appellants, by recording the second ECIR immediately after
they secured interim protection in relation to the first ECIR,
does not commend acceptance as it reeks of arbitrary
exercise of power. In effect, the arrest of the appellants
and, in consequence, their remand to the custody of the ED
and, thereafter, to judicial custody, cannot be sustained.”
(emphasis supplied)
16. Section 19 of the PMLA and Sections 43A, 43B and 43C of the
UAPA are reproduced hereunder for the sake of ready reference: -
Section 19 of the PMLA
“19. Power to arrest.—(1) If the Director, Deputy Director,
Assistant Director or any other officer authorised in this
behalf by the Central Government by general or special
order, has on the basis of material in his possession,
reason to believe (the reason for such belief to be recorded
in writing) that any person has been guilty of an offence
punishable under this Act, he may arrest such person and
shall, as soon as may be, inform him of the grounds for
such arrest.
(2) The Director, Deputy Director, Assistant Director or
any other officer shall, immediately after arrest of such
person under sub-section (1), forward a copy of the order
along with the material in his possession, referred to in
that sub-section, to the Adjudicating Authority in a sealed
envelope, in the manner, as may be prescribed and such
Adjudicating Authority shall keep such order and material
for such period, as may be prescribed.
(3) Every person arrested under sub-section (1) shall,
within twenty-four hours, be taken to a [Special Court or]
Judicial Magistrate or a Metropolitan Magistrate, as the
case may be, having jurisdiction:
Provided that the period of twenty-four hours shall exclude
the time necessary for the journey from the place of arrest
to the [Special Court or] Magistrate’s Court.”
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Sections 43A, 43B and 43C of the UAPA
“43A. Power to arrest, search, etc.—Any officer of the
Designated Authority empowered in this behalf, by general
or special order of the Central Government or the State
Government, as the case may be, knowing of a design
to commit any offence under this Act or has reason to
believe from personal knowledge or information given
by any person and taken in writing that any person has
committed an offence punishable under this Act or from
any document, article or any other thing which may furnish
evidence of the commission of such offence or from any
illegally acquired property or any document or other
article which may furnish evidence of holding any illegally
acquired property which is liable for seizure or freezing or
forfeiture under this Chapter is kept or concealed in any
building, conveyance or place, may authorise any officer
subordinate to him to arrest such a person or search such
building, conveyance or place whether by day or by night
or himself arrest such a person or search a such building,
conveyance or place.
43B. Procedure of arrest, seizure, etc.—(1) Any officer
arresting a person under section 43A shall, as soon as
may be, inform him of the grounds for such arrest.
(2) Every person arrested and article seized under section
43A shall be forwarded without unnecessary delay to the
officer-in-charge of the nearest police station.
(3) The authority or officer to whom any person or article is
forwarded under sub-section (2) shall, with all convenient
dispatch, take such measures as may be necessary in
accordance with the provisions of the Code.
43C. Application of provisions of Code. —The provisions
of the Code shall apply, insofar as they are not inconsistent
with the provisions of this Act, to all arrests, searches and
seizures made under this Act.”
17. Upon a careful perusal of the statutory provisions (reproduced
supra), we find that there is no significant difference in the language
employed in Section 19(1) of the PMLA and Section 43B(1) of the
[2024] 6 S.C.R. 687
Prabir Purkayastha v. State (NCT of Delhi)
UAPA which can persuade us to take a view that the interpretation of
the phrase ‘inform him of the grounds for such arrest’ made by this
Court in the case of Pankaj Bansal (supra) should not be applied
to an accused arrested under the provisions of the UAPA.
18. We find that the provision regarding the communication of the
grounds of arrest to a person arrested contained in Section 43B(1)
of the UAPA is verbatim the same as that in Section 19(1) of the
PMLA. The contention advanced by learned ASG that there are
some variations in the overall provisions contained in Section 19 of
the PMLA and Section 43A and 43B of the UAPA would not have
any impact on the statutory mandate requiring the arresting officer
to inform the grounds of arrest to the person arrested under Section
43B(1) of the UAPA at the earliest because as stated above, the
requirement to communicate the grounds of arrest is the same
in both the statutes. As a matter of fact, both the provisions find
their source in the constitutional safeguard provided under Article
22(1) of the Constitution of India. Hence, applying the golden rules
of interpretation, the provisions which lay down a very important
constitutional safeguard to a person arrested on charges of committing
an offence either under the PMLA or under the UAPA, have to be
uniformly construed and applied.
19. We may note that the modified application of Section 167 CrPC is
also common to both the statutes. Thus, we have no hesitation in
holding that the interpretation of statutory mandate laid down by
this Court in the case of Pankaj Bansal (supra) on the aspect of
informing the arrested person the grounds of arrest in writing has
to be applied pari passu to a person arrested in a case registered
under the provisions of the UAPA.
20. 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
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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.
21. The Right to Life and Personal Liberty is the most sacrosanct
fundamental right guaranteed under Articles 20, 21 and 22 of the
Constitution of India. Any attempt to encroach upon this fundamental
right has been frowned upon by this Court in a catena of decisions.
In this regard, we may refer to following observations made by this
Court in the case of Roy V.D. v. State of Kerala3:-
“7. The life and liberty of an individual is so sacrosanct that
it cannot be allowed to be interfered with except under the
authority of law. It is a principle which has been recognised
and applied in all civilised countries. In our Constitution
Article 21 guarantees protection of life and personal liberty
not only to citizens of India but also to aliens.”
Thus, any attempt to violate such fundamental right, guaranteed by
Articles, 20, 21 and 22 of the Constitution of India, would have to
be dealt with strictly.
22. 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.
23. Learned ASG referred to the language of Article 22(5) of the
Constitution of India and urged that even in a case of preventive
detention, the Constitutional scheme does not require that the
grounds on which the order of detention has been passed should
be communicated to the detenue in writing. Ex facie, we are not
impressed with the said submission.
24. The contention advanced by learned ASG based on the language
of Article 22(5) of the Constitution of India persuaded us to delve
deeper on the issue as to whether it is mandatory to communicate
3 [2000] Supp. 4 SCR 539 : (2000) 8 SCC 590
[2024] 6 S.C.R. 689
Prabir Purkayastha v. State (NCT of Delhi)
the grounds of arrest or detention in writing to the accused or the
detenue, as the case may be, even though the constitutional mandate
under Articles 22(1) and 22(5) of the Constitution of India does not
explicitly require that the grounds should be communicated in writing.
25. A Constitution Bench of this Court examined in detail the scheme of
Article 22(5) of the Constitution of India in the case of Harikisan v.
State of Maharashtra and Others4 and held that the communication
of the grounds of detention to the detenue in writing and in a language
which he understands is imperative and essential to provide an
opportunity to detenue of making an effective representation against
the detention and in case, such communication is not made, the
order of detention would stand vitiated as the guarantee under
Article 22(5) of the Constitution was violated. The relevant para is
extracted hereinbelow:
“ 7. ….. clause (5) of Article 22 requires that the grounds
of his detention should be made available to the detenue
as soon as may be, and that the earliest opportunity of
making a representation against the Order should also be
afforded to him. In order that the detenue should have
that opportunity, it is not sufficient that he has been
physically delivered the means of knowledge with
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 communication, in
4 [1962] Supp. 2 SCR 918 : 1962 SCC OnLine SC 117
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this context, must mean bringing home to the detenue
effective knowledge of the facts and circumstances
on which the Order of Detention is based.
(emphasis supplied)
26. Further, this Court in the case of Lallubhai Jogibhai Patel v. Union
of India and Ors.5, laid down that the grounds of detention must
be communicated to the detenue in writing in a language which
he understands and if the grounds are only verbally explained, the
constitutional mandate of Article 22(5) is infringed. The relevant para
is extracted hereunder: -
“20. …. “Communicate” is a strong word. It means that
sufficient knowledge of the basic facts constituting the
“grounds” should be imparted effectively and fully to the
detenu in writing in a language which he understands.
The whole purpose of communicating the “ground” to the
detenu is to enable him to make a purposeful and effective
representation. If the “grounds” are only verbally
explained to the detenu and nothing in writing is left
with him, in a language which he understands, then
that purpose is not served, and the constitutional
mandate in Article 22(5) is infringed…..”
(emphasis supplied)
27. From a holistic reading of various judgments pertaining to the law
of preventive detention including the Constitution Bench decision of
this Court in Harikisan (supra), wherein, the provisions of Article
22(5) of the Constitution of India have been interpreted, we find that
it has been the consistent view of this Court that the grounds on
which the liberty of a citizen is curtailed, must be communicated in
writing so as to enable him to seek remedial measures against the
deprivation of liberty.
28. Thus, there is no hesitation in the mind of this Court that the
submission of learned ASG that in a case of preventive detention,
the grounds of detention need not be provided to a detenue in writing
is ex facie untenable in eyes of law.
5 [1981] 2 SCR 352 : (1981) 2 SCC 427
[2024] 6 S.C.R. 691
Prabir Purkayastha v. State (NCT of Delhi)
29. The language used in Article 22(1) and Article 22(5) of the Constitution
of India regarding the communication of the grounds is exactly the
identical. Neither of the constitutional provisions require that the
‘grounds’ of “arrest” or “detention”, as the case may be, must be
communicated in writing. Thus, interpretation to this important facet
of the fundamental right as made by the Constitution Bench while
examining the scope of Article 22(5) of the Constitution of India would
ipso facto apply to Article 22(1) of the Constitution of India insofar
the requirement to communicate the grounds of arrest is concerned.
30. Hence, we have no hesitation in reiterating that the requirement to
communicate the grounds of arrest or the grounds of detention in
writing to a person arrested in connection with an offence or a person
placed under preventive detention as provided under Articles 22(1)
and 22(5) of the Constitution of India is sacrosanct and cannot be
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.
31. Furthermore, the provisions of Article 22(1) have already been
interpreted by this Court in Pankaj Bansal (supra) laying down
beyond the pale of doubt that the grounds of arrest must be
communicated in writing to the person arrested of an offence at
the earliest. Hence, the fervent plea of learned ASG that there was
no requirement under law to communicate the grounds of arrest in
writing to the accused appellant is noted to be rejected.
32. Now, coming to the facts of the case at hand. Indisputably, FIR No.
224 of 2023 came to be registered on 17th August, 2023. Copy of
the FIR was never brought in public domain as the same was not
uploaded on the website by the Investigating Agency. Admittedly,
the copy of the FIR was not provided to the appellant despite an
application having been made in this regard on his behalf till after
the order of police custody remand was passed by the learned
Remand Judge.
33. The copy of the FIR was provided to Shri Arshdeep Khurana,
learned Advocate representing the accused for the first time on 5th
October, 2023 and hence, till the time of being deprived of liberty,
no communication had been made to the appellant regarding the
grounds on which he had been arrested.
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34. The accused was arrested on 3rd October, 2023 at 5:45 p.m. as per
the arrest memo (Annexure P-7). As per Section 43C of the UAPA,
the provisions of CrPC shall apply to all arrests, search and seizures
made under the UAPA insofar as they are not inconsistent with the
provisions of this Act. As per Section 57 CrPC read with Section
167(1) CrPC, the appellant was required to be produced before the
concerned Magistrate within twenty-four hours of his arrest. The
Investigating Officer, therefore, had a clear window till 5:44 p.m. on
4th October, 2023 for producing the appellant before the Magistrate
concerned and to seek his police custody remand, if so required.
There is no dispute that Shri Arshdeep Khurana, learned Advocate,
engaged on behalf of the appellant had presented himself at the
police station on 3rd October, 2023 after the appellant was arrested
and the mobile number of the Advocate was available with the
Investigating Officer. Inspite thereof, the appellant was presented
before the learned Remand Judge at his residence sometime before
6:00 a.m. on 4th October, 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.
35. It is apparent that the appellant had objected to the appearance of
the remand counsel before the learned Remand Judge and this is
the reason, the Investigating Officer undertook a charade of informing
of the Advocate engaged by the appellant on mobile. The learned
Remand Judge recorded the presence of Shri Arshdeep Khurana,
Advocate, mentioning that he had been informed and heard on the
remand application through telephone call. The initial information
about the accused appellant being presented before the learned
Remand Judge was sent by the arresting officer to the appellant’s
[2024] 6 S.C.R. 693
Prabir Purkayastha v. State (NCT of Delhi)
relative Shri Rishab Bailey at around 6:46 a.m. and he, in turn,
informed the Advocate Shri Arshdeep Khurana around 7:00 a.m.
These facts are manifested from perusal of the call logs presented
for the perusal of the Court. Thus, by the time, the Advocate engaged
by the accused appellant had been informed, the order of remand
had already been passed. Unquestionably, till that time, the grounds
of arrest had not been conveyed to the appellant in writing.
36. The learned ASG had argued that the grounds of arrest were
set out in the remand application which was transmitted through
WhatsApp to Advocate Shri Arshdeep Khurana. However, the fact
remains that the remand application was transmitted to the Advocate
Shri Arshdeep Khurana after the remand had been granted by the
learned Remand Judge which was at 6:00 a.m. as per the recording
made in the remand order (reproduced supra). The contention of the
learned ASG that there is variance in time of passing of the remand
order as per the pleadings made on behalf of the accused appellant
before the High Court of Delhi does not impress us in view of the
time recorded in the remand order.
37. Learned Single Judge of the High Court of Delhi held at para No.
31 of the impugned order that the respondent had taken a categoric
stand that the grounds of arrest were informed to the appellant orally
and the same were also conveyed in writing as per the details set out
in the memo of arrest. However, learned ASG fairly did not advance
any such argument based on the arrest memo.
38. 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 on the face of the record because the arrest
memo does not indicate the grounds of arrest being incorporated in
the said document. Column No. 9 of the arrest memo (Annexure P-7)
which is being reproduced hereinbelow simply sets out the ‘reasons
for arrest’ which are formal in nature and can be generally attributed
to any person arrested on accusation of an offence whereas the
‘grounds of arrest’ would be personal in nature and specific to the
person arrested.
“9. Reason for arrest
a. Prevent accused person from committing any further
offence.
694 [2024] 6 S.C.R.
Digital Supreme Court Reports
b. For proper investigation of the offence.
c. To prevent the accused person from causing the
evidence of the offence to disappear or tempering
with such evidence in any manner.
d. To prevent such person from making any inducement
threat or promise to any person acquainted the facts
of the case so as to dissuade him from disclosing
such facts to the Court or to the Police officer.
e. As unless such person is arrested, his presence in
the Court whenever required cannot be ensured.”
39. The remand order dated 4th October, 2023(reproduced supra) records
that the copy of the remand application had been sent to the learned
Advocate engaged by the accused appellant through shriApp. A bare
perusal of the remand order is enough to satisfy us that these two
lines were subsequently inserted in the order because the script in
which these two lines were written is much finer as compared to
the remaining part of the order and moreover, these two lines give
a clear indication of subsequent insertion. It is quite possible that
the learned Remand Judge may have heard the learned counsel for
the appellant after signing the remand order and thus, these lines
were inserted later without intending any harm or malintention but
the fact remains that the order of remand had already been passed
at 6:00 a.m. and hence, the subsequent opportunity of hearing, if
any, provided to the counsel was nothing but an exercise in futility.
40. Learned ASG had argued that the copy of the remand application
forwarded over WhatsApp to the learned counsel for the accused
appellant gives a complete picture about the grounds of arrest. We
feel that any comment on the contents of the remand application and
whether the same actually conveyed intelligible grounds of arrest
to the accused or whether the same are so vague that it would be
impossible to understand, may prejudice the trial of the case.
41. We may, however, briefly mention that the grounds of arrest as
conveyed to the Advocate are more or less a narration of facts
picked up from the FIR which in itself does not indicate any particular
incident or event which gave rise to the alleged offences. However,
the law is well settled that the FIR is not an encyclopaedia and is
registered just to set the process of criminal justice in motion. The
[2024] 6 S.C.R. 695
Prabir Purkayastha v. State (NCT of Delhi)
Investigating Officer has the power to investigate the matter and
collect all relevant material which would form the basis of filing of
charge sheet in the Court concerned.
42. Extensive arguments were advanced by Shri Sibal, with reference to
the stipulations made in Sections 13, 16, 17, 18, 22C of the UAPA
in order to contend that even if the FIR and the grounds set out
in the remand application are taken to be true on the face of the
record, apparently, the same convey just a fictional web spun around
conjectures and surmises. It was contended that though a reference
is made in the FIR that the appellant and one Neville Roy Singham,
a foreign national were found to be discussing how to create a
map of India without Kashmir and to show Arunachal Pradesh as a
disputed area but the fact remains that no such map was prepared
or published or was found in possession of the appellant or on his
devices till the date of his arrest.
43. Shri Sibal had also argued that the appellant was arrested without
any indication as to how he was connected with the alleged incorrect
map of India. He also urged that the FIR refers to farmers’ agitation
without justifying as to how the appellant was connected with those
incidents. He contended that not a single incident is mentioned in
the FIR or the remand application which can give rise to the offences
alleged and that the FIR was registered without any plausible reason
or basis just to victimise the appellant.
44. We do not feel persuaded to examine these aspects at this stage
because the same would require entering into the merits of the case.
This would be within the domain of the Court examining the matter
after the filing of the charge sheet. The core issue in this appeal is
regarding the illegality of the process whereby the appellant was
arrested and remanded to police custody which does not require
examining the merits of the case.
45. It was the fervent contention of learned ASG that in the case of Ram
Kishor Arora (supra), a two-Judge Bench of this Court interpreted
the judgment in the case of Pankaj Bansal (supra) to be having
a prospective effect and thus the ratio of Pankaj Bansal (supra)
cannot come to the appellant’s aid. Indisputably, the appellant herein
was remanded to police custody on 4th October, 2023 whereas the
judgment in the case of Pankaj Bansal (supra) was delivered on
3rd October, 2023. Merely on a conjectural submission regarding the
696 [2024] 6 S.C.R.
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late uploading of the judgment, learned ASG cannot be permitted
to argue that the ratio of Pankaj Bansal (supra) would not apply
to the present case. Hence, the plea of Shri Raju, learned ASG
that the judgment in Pankaj Bansal (supra) would not apply to the
proceedings of remand made on 4th October, 2023 is misconceived.
46. We are of the firm opinion that once this Court has interpreted the
provisions of the statute in context to the constitutional scheme and
has laid down that the grounds of arrest have to be conveyed to the
accused in writing expeditiously, the said ratio becomes the law of
the land binding on all the Courts in the country by virtue of Article
141 of the Constitution of India.
47. Now, coming to the aspect as to whether the grounds of arrest were
actually conveyed to the appellant in writing before he was remanded
to the custody of the Investigating Officer.
48. We have carefully perused the arrest memo (Annexure P-7) and find
that the same nowhere conveys the grounds on which the accused
was being arrested. The arrest memo is simply a proforma indicating
the formal ‘reasons’ for which the accused was being arrested.
49. It may be reiterated at the cost of repetition that there is a significant
difference in the phrase ‘reasons for arrest’ and ‘grounds of arrest’. The
‘reasons for arrest’ as indicated in the arrest memo are purely formal
parameters, viz., to prevent the accused person from committing any
further offence; for proper investigation of the offence; to prevent
the accused person from causing the evidence of the offence to
disappear or tempering with such evidence in any manner; to prevent
the arrested person for making inducement, threat or promise to any
person acquainted with the facts of the case so as to dissuade him
from disclosing such facts to the Court or to the Investigating Officer.
These reasons would commonly apply to any person arrested on
charge of a crime whereas the ‘grounds of arrest’ would be required
to contain all such details in hand of the Investigating Officer which
necessitated the arrest of the accused. Simultaneously, 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.
[2024] 6 S.C.R. 697
Prabir Purkayastha v. State (NCT of Delhi)
50. 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 accused
appellant or his counsel before passing of the order of remand dated
4th October, 2023 which vitiates the arrest and subsequent remand
of the appellant.
51. As a result, the appellant is entitled to a direction for release from
custody by applying the ratio of the judgment rendered by this Court
in the case of Pankaj Bansal (supra).
52. Accordingly, the arrest of the appellant followed by remand order
dated 4th October, 2023 and so also the impugned order passed by
the High Court of Delhi dated 13th October, 2023 are hereby declared
to be invalid in the eyes of law and are quashed and set aside.
53. Though we would have been persuaded to direct the release of the
appellant without requiring him to furnish bonds or security but since
the charge sheet has been filed, we feel it appropriate to direct that
the appellant shall be released from custody on furnishing bail and
bonds to the satisfaction of the trial Court.
54. We make it abundantly clear that none of the observations made
above shall be treated as a comment on the merits of the case.
55. The appeal is allowed in these terms.
56. Pending application(s), if any, shall stand disposed of.
Headnotes prepared by: Divya Pandey Result of the case:
Appeal allowed.
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