Bombay High Court
Saurabh Prasad vs Central Bureau Investigation on 31 January, 2025
Author: Sarang V. Kotwal
Bench: Sarang V. Kotwal, S. M. Modak
2025:BHC-AS:4688
1
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL WRIT PETITION (STAMP) NO. 24338 OF 2024
Vicky Bharat Kalyani ... Petitioner
Versus
The State of Maharashtra & Anr. ... Respondents
......
WITH
WRIT PETITION NO.5254 OF 2024
WITH
INTERIM APPLICATION NO.5017 OF 2024
......
WITH
WRIT PETITION NO.5270 OF 2024
......
WITH
WRIT PETITION NO.5588 OF 2024
......
WITH
WRIT PETITION NO.5590 OF 2024
......
WITH
WRIT PETITION NO.5694 OF 2024
......
WITH
WRIT PETITION NO.5845 OF 2024
......
WITH
WRIT PETITION NO.5874 OF 2024
......
WITH
WRIT PETITION NO.6000 OF 2024
......
WITH
WRIT PETITION NO.6115 OF 2024
......
WITH
WRIT PETITION NO.6223 OF 2024
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WITH
WRIT PETITION NO.6229 OF 2024
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WITH
WRIT PETITION NO.6663 OF 2024
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Deshmane(PS)
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WITH
WRIT PETITION (ST) NO.19741 OF 2024
WITH
WRIT PETITION (ST) NO.19845 OF 2024
......
WITH
WRIT PETITION (ST) NO.20923 OF 2024
......
WITH
WRIT PETITION (ST) NO.20933 OF 2024
......
WITH
WRIT PETITION (ST) NO.20938 OF 2024
......
WITH
WRIT PETITION (ST) NO.20996 OF 2024
......
WITH
WRIT PETITION (ST) NO.21638 OF 2024
......
WITH
WRIT PETITION (ST) NO.22085 OF 2024
WITH
INTERIM APPLICATION (ST) NO.26922 OF 2024
IN
WRIT PETITION (ST) NO.22085 OF 2024
......
WITH
WRIT PETITION (ST) NO.22813 OF 2024
......
WITH
WRIT PETITION (ST) NO.24115 OF 2024
......
WITH
WRIT PETITION (ST) NO.24183 OF 2024
......
WITH
WRIT PETITION (ST) NO.24461 OF 2024
......
WITH
WRIT PETITION (ST) NO.24704 OF 2024
......
WITH
WRIT PETITION (ST) NO.24806 OF 2024
......
WITH
WRIT PETITION (ST) NO.24885 OF 2024
......
WITH
WRIT PETITION NO.55 OF 2025
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WITH
WRIT PETITION NO.284 OF 2025
......
WITH
WRIT PETITION NO.336 OF 2025
......
WITH
WRIT PETITION NO.337 OF 2025
......
WITH
WRIT PETITION NO.395 OF 2025
......
WITH
WRIT PETITION NO.5257 OF 2024
......
WITH
WRIT PETITION NO.5263 OF 2024
......
WITH
WRIT PETITION NO.5693 OF 2024
......
WITH
WRIT PETITION NO.5706 OF 2024
......
WITH
WRIT PETITION NO.6046 OF 2024
......
WITH
WRIT PETITION (ST) NO.17586 OF 2024
......
WITH
WRIT PETITION (ST) NO.20400 OF 2024
WITH
WRIT PETITION (ST) NO.21352 OF 2024
WITH
WRIT PETITION (ST) NO.21607 OF 2024
WITH
WRIT PETITION (ST) NO.22165 OF 2024
WITH
INTERIM APPLICATION (ST) NO.294 OF 2025
......
WITH
WRIT PETITION (ST) NO.20755 OF 2024
......
WITH
WRIT PETITION (ST) NO.23019 OF 2024
......
WITH
WRIT PETITION (ST) NO.23383 OF 2024
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WITH
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WRIT PETITION (ST) NO.23385 OF 2024
......
WITH
WRIT PETITION (ST) NO.23527 OF 2024
......
WITH
WRIT PETITION (ST) NO.23924 OF 2024
......
[SR. NO.925]
Adv.Rishi Bhuta a/w Adv.Vivek Pandey, Adv.Neha Patil, Adv.K.R.Shah, Adv.Ashish Dubey,
Adv.Ujjwal Gandhi, Adv.Ankita Bamboli, Adv.Saakshi Jha, Adv.Prateek Dutta, Adv.Bhavi
Kapoor, Adv.Vaishnavi Javehri and Adv.Parth Govilkar-Advocates for Petitioner.
Dr.Birendra Saraf-Advocate General a/w Mr.H.S.Venegavkar- Public
Prosecutor,Smt.M.M.Deshmukh-APP, Smt.M.H.Mhatre-APP, for Respondents-State.
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[SR.NO.903]
WRIT PETITION NO.5254 OF 2024
WITH
INTERIM APPLICATION NO.5017 OF 2024
Mr.Binod Agarwal (In-person) present in Court for Petitioner/ Applicant.
Dr.Birendra Saraf-Advocate General a/w Mr.H.S.Venegavkar- Public Prosecutor and
Smt.M.M.Deshmukh-APP for Respondent-State.
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[SR. NO.904]
WRIT PETITION NO.5270 OF 2024
Adv.Niranjan Mundargi i/b. Adv.Vinay J. Bhanushali, Advocate for Petitioner.
Dr.Birendra Saraf-Advocate General a/w Mr.H.S.Venegavkar- Public Prosecutor,
Smt.M.M.Deshmukh-APP, Mr.S.R.Agarkar-APP for Respondents-State.
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[SR.NO.905]
WRIT PETITION NO.5588 OF 2024
Adv.C.J.Joveson i/b. Adv.Simran Patil, Advocate for Petitioner.
Dr.Birendra Saraf-Advocate General a/w Mr.H.S.Venegavkar- Public Prosecutor,
Smt.M.M.Deshmukh-APP and Mr.B.V.Holambe-Patil-APP for Respondents-State.
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[SR.NO.906]
WRIT PETITION NO.5590 OF 2024
Adv.Vaibhav Jagtap-Advocate for Petitioner.
Dr.Birendra Saraf-Advocate General a/w Mr.H.S.Venegavkar- Public Prosecutor and
Smt.M.M.Deshmukh-APP for Respondent-State.
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[SR.NO.907]
WRIT PETITION NO.5694 OF 2024
Adv.Kamlesh Mahadev Satre, Advocate for Petitioner.
Adv.Aruna S. Pai, Advocate for Respondent No.1-Union of India.
Dr.Birendra Saraf-Advocate General a/w Mr.H.S.Venegavkar- Public Prosecutor,
Smt.M.M.Deshmukh-APP, Smt.M.H.Mhatre-APP, for Respondent No.2-State.
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[SR.NO.908]
WRIT PETITION NO.5845 OF 2024
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Adv.Ujjwal Gandhi a/w Adv.Saakshi Jha, Adv.Prateek Dutta, Adv.Bhavi Kapoor-Advocates for
Petitioner.
Dr.Birendra Saraf-Advocate General a/w Mr.H.S.Venegavkar- Public Prosecutor and
Smt.M.M.Deshmukh-APP for Respondents-State.
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[SR.NO.909]
WRIT PETITION NO.5874 OF 2024
Adv.Anil S. Kamble - Advocate for Petitioner.
Dr.Birendra Saraf-Advocate General a/w Mr.H.S.Venegavkar- Public Prosecutor,
Smt.M.M.Deshmukh and Smt.M.H.Mhatre-APP for Respondent-State.
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[SR.NO.910]
WRIT PETITION NO.6000 OF 2024
Mr.Sudeep Pasbola-Senior Advocate a/w Mr.Ayush Pasbola-Advocate for Petitioner.
Dr.Birendra Saraf-Advocate General a/w Mr.H.S.Venegavkar- Public Prosecutor,
Smt.M.M.Deshmukh and Mr.S.R.Agarkar-APP for Respondent-State.
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[SR.NO.911]
WRIT PETITION NO.6115 OF 2024
Adv.Amit Singh-Advocate for Petitioner.
Dr.Birendra Saraf-Advocate General a/w Mr.H.S.Venegavkar- Public Prosecutor,
Smt.M.M.Deshmukh and Mr.Y.M.Nakhwa-APP for Respondents-State.
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[SR.NO.912]
WRIT PETITION NO.6223 OF 2024
Adv.Ayaz Khan-Advocate for Petitioner.
Dr.Birendra Saraf-Advocate General a/w Mr.H.S.Venegavkar- Public Prosecutor,
Smt.M.M.Deshmukh and Smt.M.H.Mhatre-APP for Respondent-State.
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[SR.NO.913]
WRIT PETITION NO.6229 OF 2024
Adv.Zehra Charania-Advocate for Petitioner.
Dr.Birendra Saraf-Advocate General a/w Mr.H.S.Venegavkar- Public
Prosecutor,Smt.M.M.Deshmukh-APP for Respondent-State.
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[SR.NO.914]
WRIT PETITION NO.6663 OF 2024
Adv.Suyash Nitin Khose a/w Mr.Mangesh Kusurkar, Mr.Abhishek Nandimath-Advocates for
Petitioner.
Dr.Birendra Saraf-Advocate General a/w Mr.H.S.Venegavkar- Public
Prosecutor,Smt.M.M.Deshmukh-APP, Mr.B.V.Holambe-Patil-APP, for Respondent-State.
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[SR.NO.915]
WRIT PETITION (ST) NO.19741 OF 2024
WITH
WRIT PETITION (ST) NO.19845 OF 2024
Adv.Taraq Sayed-Advocate for Petitioner.
Dr.Birendra Saraf-Advocate General a/w Mr.H.S.Venegavkar- Public
Prosecutor,Smt.M.M.Deshmukh-APP, Mr.Arfan Sait-APP, for Respondents-State.
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[SR.NO.916]
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WRIT PETITION (ST) NO.20923 OF 2024
Adv.Zehra Charania-Advocate for Petitioner.
Dr.Birendra Saraf-Advocate General a/w Mr.H.S.Venegavkar- Public
Prosecutor,Smt.M.M.Deshmukh-APP, Mr.S.R.Agarkar-APP, for Respondents-State.
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[SR.NO.917]
WRIT PETITION (ST) NO.20933 OF 2024
Adv.Zehra Charania-Advocate for Petitioner.
Dr.Birendra Saraf-Advocate General a/w Mr.H.S.Venegavkar- Public
Prosecutor,Smt.M.M.Deshmukh-APP, Mr.B.V.Holambe-Patil-APP, for Respondent-State.
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[SR.NO.918]
WRIT PETITION (ST) NO.20938 OF 2024
Adv.Ayaz Khan and Adv.Zehra Charania-Advocates for Petitioner.
Dr.Birendra Saraf-Advocate General a/w Mr.H.S.Venegavkar- Public
Prosecutor,Smt.M.M.Deshmukh-APP, Mr.S.R.Agarkar-APP, for Respondent-State.
----------------------------------------------------------------------------------------------------------------------
[SR.NO.919]
WRIT PETITION (ST) NO.20996 OF 2024
Adv.Taraq Sayed-Advocate for Petitioner.
Dr.Birendra Saraf-Advocate General a/w Mr.H.S.Venegavkar- Public
Prosecutor,Smt.M.M.Deshmukh-APP,for Respondents-State.
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[SR.NO.920]
WRIT PETITION (ST) NO.21638 OF 2024
Adv.Hitendra Parab-Advocate for Petitioner.
Dr.Birendra Saraf-Advocate General a/w Mr.H.S.Venegavkar- Public
Prosecutor,Smt.M.M.Deshmukh-APP, Mr.S.R.Agarkar-APP, for Respondent-State.
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[SR.NO.921]
WRIT PETITION (ST) NO.22085 OF 2024
ALONG WITH
INTERIM APPLICATION (ST) NO.26922 OF 2024
IN
WRIT PETITION (ST) NO.22085 OF 2024
Adv.Rahul Arote-Advocate for Petitioner.
Dr.Birendra Saraf-Advocate General a/w Mr.H.S.Venegavkar- Public
Prosecutor,Smt.M.M.Deshmukh-APP, for Respondent-State.
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[SR.NO.922]
WRIT PETITION (ST) NO.22813 OF 2024
Adv.Siddharth Sutaria a/w Adv.Suyash Nitin Khose, Adv.Chinmay Sawant, Mr.Vaibhav Mahajan
and Adv.Ashwin Hirulkar-Advocates for Petitioner.
Dr.Birendra Saraf-Advocate General a/w Mr.H.S.Venegavkar- Public
Prosecutor,Smt.M.M.Deshmukh-APP, Mr.S.R.Agarkar-APP, for Respondent-State.
----------------------------------------------------------------------------------------------------------------------
[SR.NO.923]
WRIT PETITION (ST) NO.24115 OF 2024
Adv.Ujjwal Gandhi a/w Adv.Saakshi Jha, Adv.Prateek Dutta, Adv.Bhavi Kapoor-Advocates for
Petitioner.
Dr.Birendra Saraf-Advocate General a/w Mr.H.S.Venegavkar- Public
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Prosecutor,Smt.M.M.Deshmukh-APP, Mr.B.V.Holamble-Patil -APP, for Respondent-State.
Adv.Nitee Punde a/w Adv.Mamta Omle, Adv.Siddharth Chandrashekar-Advocates for
Respondent No.2.
----------------------------------------------------------------------------------------------------------------------
[SR.NO.924]
WRIT PETITION (ST) NO.24183 OF 2024
Adv.Vishal M. Deshmukh-Advocate for Petitioner.
Dr.Birendra Saraf-Advocate General a/w Mr.H.S.Venegavkar- Public
Prosecutor,Smt.M.M.Deshmukh-APP,for Respondents-State.
----------------------------------------------------------------------------------------------------------------------
[SR.NO.926]
WRIT PETITION (ST) NO.24461 OF 2024
Adv.Manoj R. Gowd-Advocate for Petitioner.
Dr.Birendra Saraf-Advocate General a/w Mr.H.S.Venegavkar- Public
Prosecutor,Smt.M.M.Deshmukh-APP, Mr.S.R.Agarkar-APP, for Respondents-State.
----------------------------------------------------------------------------------------------------------------------
[SR.NO.927]
WRIT PETITION (ST) NO.24704 OF 2024
Adv.Ujjwal Gandhi a/w Adv.Saakshi Jha, Adv.Prateek Dutta and Adv.Bhavi Kapoor-Advocates
for Petitioner.
Dr.Birendra Saraf-Advocate General a/w Mr.H.S.Venegavkar- Public
Prosecutor,Smt.M.M.Deshmukh-APP,for Respondents-State.
----------------------------------------------------------------------------------------------------------------------
[SR.NO.928]
WRIT PETITION (ST) NO.24806 OF 2024
Adv.Rishi Bhuta a/w Adv.Manish Bohra, Adv.Neha Patil, Adv.K.R.Shah, Adv.Ashish Dubey,
Adv.Ujjwal Gandhi, Adv.Ankita Bamboli, Adv.Saakshi Jha, Adv.Prateek Dutta, Adv.Vaishnavi
Javheri, Adv.Parth Govilkar, Adv.Bhavi Kapoor-Advocates for Petitioners.
Dr.Birendra Saraf-Advocate General a/w Mr.H.S.Venegavkar- Public Prosecutor,
Smt.M.M.Deshmukh-APP, Ms.Sharmila S. Kaushik-APP, for Respondents-State.
----------------------------------------------------------------------------------------------------------------------
[SR.NO.929]
WRIT PETITION (ST) NO.24885 OF 2024
Mr.Amit Desai-Senior Advocate a/w Adv.Gopalkrishna Shenoy, Adv.Kushal Mor i/b.Adv.Rohan
Chauhan-Advocates for Petitioner.
Dr.Birendra Saraf-Advocate General a/w Mr.H.S.Venegavkar- Public
Prosecutor,Smt.M.M.Deshmukh-APP, Mr.Arfan Sait-APP, for Respondent-State.
----------------------------------------------------------------------------------------------------------------------
[SR.NO.930]
WRIT PETITION NO.55 OF 2025
Adv.Ganesh Gole i/b. Adv.Aarif Ali-Advocate for Petitioner.
Dr.Birendra Saraf-Advocate General a/w Mr.H.S.Venegavkar- Public
Prosecutor,Smt.M.M.Deshmukh-APP, Mr.Y.M.Nakhwa-APP, for Respondents-State.
----------------------------------------------------------------------------------------------------------------------
[SR.NO.931]
WRIT PETITION NO.284 OF 2025
Adv.P.K.Sanghrajka a/w Adv.Parth H.Zaveri i/b. Adv.Momin Musaddique Ahmed-Advocates for
Petitioner.
Dr.Birendra Saraf-Advocate General a/w Mr.H.S.Venegavkar- Public
Prosecutor,Smt.M.M.Deshmukh-APP, Mr.Arfan Sait-APP, for Respondent-State.
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[SR.NO.932]
WRIT PETITION NO.336 OF 2025
Adv.Ali Kaashif Khan Deshmukh a/w Adv.Snigdha Khandelwal, Adv.Hitanshi Gajaria and
Adv.Zainabh Burmawala, Adv.Shirish Shigwan-Advocates for Petitioner.
Dr.Birendra Saraf-Advocate General a/w Mr.H.S.Venegavkar- Public
Prosecutor,Smt.M.M.Deshmukh-APP,for Respondents-State.
----------------------------------------------------------------------------------------------------------------------
[SR.NO.933]
WRIT PETITION NO.337 OF 2025
Adv.S.R.Mishra-Advocate for Petitioner.
Dr.Birendra Saraf-Advocate General a/w Mr.H.S.Venegavkar- Public
Prosecutor,Smt.M.M.Deshmukh-APP, Smt.M.H.Mhatre-APP, for Respondents-State.
----------------------------------------------------------------------------------------------------------------------
[SR.NO.934]
WRIT PETITION NO.395 OF 2025
Adv.Anil S. Kamble-Advocate for Petitioner.
Dr.Birendra Saraf-Advocate General a/w Mr.H.S.Venegavkar- Public
Prosecutor,Smt.M.M.Deshmukh-APP, Mr.Y.M.Nakhwa-APP, for Respondent-State.
----------------------------------------------------------------------------------------------------------------------
[SR.NO.935]
WRIT PETITION NO.5257 OF 2024
Adv.Ujjwal Gandhi a/w Adv.Saakshi Jha, Adv.Prateek Dutta, Adv.Bhavi Kapoor-Advocates for
Petitioner.
Dr.Birendra Saraf-Advocate General a/w Mr.H.S.Venegavkar- Public
Prosecutor,Smt.M.M.Deshmukh-APP,for Respondents-State.
----------------------------------------------------------------------------------------------------------------------
[SR.NO.936]
WRIT PETITION NO.5263 OF 2024
Adv.Ujjwal Gandhi a/w Adv.Saakshi Jha, Adv.Prateek Dutta, Adv.Bhavi Kapoor-Advocates for
Petitioner.
Dr.Birendra Saraf-Advocate General a/w Mr.H.S.Venegavkar- Public
Prosecutor,Smt.M.M.Deshmukh-APP,for Respondents-State.
----------------------------------------------------------------------------------------------------------------------
[SR.NO.937]
WRIT PETITION NO.5693 OF 2024
Adv.Ujjwal Gandhi a/w Adv.Saakshi Jha, Adv.Prateek Dutta, Adv.Bhavi Kapoor-Advocates for
Petitioner.
Dr.Birendra Saraf-Advocate General a/w Mr.H.S.Venegavkar- Public
Prosecutor,Smt.M.M.Deshmukh-APP,for Respondents-State.
----------------------------------------------------------------------------------------------------------------------
[SR.NO.938]
WRIT PETITION NO.5706 OF 2024
Adv.Ujjwal Gandhi a/w Adv.Saakshi Jha, Adv.Prateek Dutta, Adv.Bhavi Kapoor-Advocates for
Petitioner.
Dr.Birendra Saraf-Advocate General a/w Mr.H.S.Venegavkar- Public
Prosecutor,Smt.M.M.Deshmukh-APP,for Respondents-State.
----------------------------------------------------------------------------------------------------------------------
[SR.NO.939]
WRIT PETITION NO.6046 OF 2024
Adv.Rishi Bhuta a/w Adv.Ajay Bhise, Adv.Neha Patil, Adv.K.R.Shah, Adv.Ashish Dubey,
Adv.Ujjwal Gandhi, Adv.Ankita Bamboli, Adv.Saakshi Jha, Adv.Prateek Dutta, Adv.Vaishnavi
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Javheri, Adv.Parth Govilkar, Adv.Bhavi Kapoor-Advocates for Petitioner.
Dr.Birendra Saraf-Advocate General a/w Mr.H.S.Venegavkar- Public Prosecutor,Smt.Sharmila S.
Kaushik-APP, for Respondents-State.
----------------------------------------------------------------------------------------------------------------------
[SR.NO.940]
WRIT PETITION (ST) NO.17586 OF 2024
Adv.Siddharth Sutaria a/w Adv.Suyash Nitin Khose, Adv.Chinmay Sawant, Adv.Vaibhav
Mahajan, Adv.Ashwin Hirulkar-Advocates for Petitioner.
Dr.Birendra Saraf-Advocate General a/w Mr.H.S.Venegavkar- Public
Prosecutor,Smt.M.H.Mhatre-APP,for Respondent-State.
----------------------------------------------------------------------------------------------------------------------
[SR.NO.942]
WRIT PETITION (ST) NO.20400 OF 2024
WITH
WRIT PETITION (ST) NO.21352 OF 2024
WITH
WRIT PETITION (ST) NO.21607 OF 2024
WITH
WRIT PETITION (ST) NO.22165 OF 2024
WITH
INTERIM APPLICATION (ST) NO.294 OF 2025
Adv.C.J.Joveson-Advocate for Petitioner in all the matters.
Dr.Birendra Saraf-Advocate General a/w Mr.H.S.Venegavkar- Public
Prosecutor,Smt.M.M.Deshmukh-APP,for Respondents-State.
----------------------------------------------------------------------------------------------------------------------
[SR.NO.943]
WRIT PETITION (ST) NO.20755 OF 2024
Adv.Sushil Gaglani i/b. Adv.Rohit R.Singh-Advocate for Petitioner.
Dr.Birendra Saraf-Advocate General a/w Mr.H.S.Venegavkar- Public
Prosecutor,Smt.M.M.Deshmukh-APP,for Respondents-State.
----------------------------------------------------------------------------------------------------------------------
[SR.NO.944]
WRIT PETITION (ST) NO.23019 OF 2024
Adv.Sandeep R. Karnik-Advocate for Petitioner.
Adv.Shreeram Shirsat a/w Adv.Shekhar V. Mane-Advocates for Respondent-NCB.
Dr.Birendra Saraf-Advocate General a/w Mr.H.S.Venegavkar- Public
Prosecutor,Smt.M.M.Deshmukh-APP,for Respondent-State.
----------------------------------------------------------------------------------------------------------------------
[SR.NO.945]
WRIT PETITION (ST) NO.23383 OF 2024
Adv.Nitin Gaware Patil a/w Adv.Narayan Rokade, Adv.Siddharth Agarwal, Adv.Hrushikesh Sayaji
Korhale, Adv.Pratibha Pawar, Adv.Vikrant Kadam, Adv.Siddharth Ghodke, Adv.Abhang
Suryawanshi, Adv.Harish Jadhav-Advocates for Petitioner.
Dr.Birendra Saraf-Advocate General a/w Mr.H.S.Venegavkar- Public Prosecutor, Mr.Ankur
Pahade, Mr.Sanjay Kokane i/b. Mr.Shishir Hiray-Special Public Prosecutor a/w Smt.M.M.
Deshmukh-APP, for Respondent-State.
----------------------------------------------------------------------------------------------------------------------
[SR.NO.946]
WRIT PETITION (ST) NO.23385 OF 2024
Adv.Nitin Gaware Patil a/w Adv.Narayan Rokade, Adv.Siddharth Agarwal, Adv.Hrushikesh Sayaji
Korhale, Adv.Pratibha Pawar, Adv.Vikrant Kadam, Adv.Siddharth Ghodke, Adv.Abhang
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Suryawanshi, Adv.Harish Jadhav-Advocates for Petitioner.
Dr.Birendra Saraf-Advocate General a/w Mr.H.S.Venegavkar- Public Prosecutor, Mr.Ankur
Pahade, Mr.Sanjay Kokane i/b. Mr.Shishir Hiray-Special Public Prosecutor,
Smt.M.M.Deshmukh-APP, for Respondent-State.
----------------------------------------------------------------------------------------------------------------------
WITH
[SR.NO.947]
WRIT PETITION (ST) NO.23527 OF 2024
Adv.Kishor Ajetrao-Advocate for Petitioner.
Dr.Birendra Saraf-Advocate General a/w Mr.H.S.Venegavkar- Public
Prosecutor,Smt.M.M.Deshmukh-APP,Mr.B.V.Holambe-Patil-APP, for Respondents-State.
----------------------------------------------------------------------------------------------------------------------
[SR.NO.948]
WRIT PETITION (ST) NO.23924 OF 2024
Adv.Rahul Agarwal a/w Adv.Vritee Ssoni, Adv.Shruti Adde i/b. Agarwal and Dhanuka Legal -
Advocates for Petitioner.
Adv.Kuldeep Patil a/w Adv.Dhavalsinh V. Patil-Advocates for Respondent-CBI.
Dr.Birendra Saraf-Advocate General a/w Mr.H.S.Venegavkar- Public Prosecutor,
Smt.M.M.Deshmukh-APP,for Respondent-State.
.....
CORAM : SARANG V. KOTWAL, AND
S. M. MODAK, JJ.
RESERVED ON : 17th JANUARY, 2025
PRONOUNCED ON : 31st JANUARY, 2025
JUDGMENT :
[PER SARANG V. KOTWAL, J.]
1. All these Petitions raise a common legal issue regarding
interpretation of Section 50 of the Code of Criminal Procedure,
1973 (for short, ‘Cr.P.C.’). In some of the Petitions, the
interpretation of Sections 41 & 41A of Cr.P.C. is also necessary. The
common contention in all these Petitions is the alleged violation of
these provisions rendering the Petitioners’ continued detention in
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custody as illegal detention. The Petitioners are seeking their
release on this ground. The facts pertaining to these Petitions
individually are obviously different and, therefore, before
considering the fact situation in each of these Petitions separately,
we thought it fit to consider the interpretation of these provisions.
Subject to such interpretation, an individual Petition from this
group can be decided separately. To afford an opportunity to the
counsel appearing for both the sides, we have listed these matters
together.
2. We have heard respective learned counsel for the
Petitioners as well as a Petitioner appearing as party in-person, in
various Petitions. On the other hand, learned Advocate General Dr.
Birendra Saraf, Learned Public Prosecutor Mr. Venegavkar, Learned
counsel Ms. Nitee Punde and learned counsel Mrs.Aruna Pai
appeared for the Respondents.
3. Learned Advocate General put forth the perspective on
the issue on behalf of the State of Maharashtra. Mrs. Aruna Pai and
Ms. Nitee Punde, appeared on behalf of the respective investigating
agencies.
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4. After hearing both the sides extensively, we have formed
an opinion that these issues require serious consideration by a
Larger Bench. There are two main contingencies in which the
issues can be referred to a Larger Bench. The first contingency is –
if there is a difference of opinion of the Coordinate Benches of
equal strength, then the matters, for that issue, can be referred to a
Larger Bench. Similarly, when a Bench is of the opinion that the
issues can be more advantageously decided by a Larger Bench; in
that case also the issues can be referred for consideration to a
Larger Bench. Rule 8 of Chapter I of the Bombay High Court
Appellate Side Rules 1960 reads thus :
” CHAPTER I
JURISDICTION OF SINGLE JUDGES AND BENCHES OF THE
HIGH COURT
8. Reference to two or more Judges.–If it shall appear
to any Judge, either on the application of a party or
otherwise, that an appeal or matter can be more
advantageously heard by a Bench of two or more Judges,
he may report to that effect to the Chief Justice who shall
make such order thereon as he shall think fit.”
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5. This particular Rule 8 is interpreted by different Benches
of this Court to support our view that in the above two
contingencies the matters can be referred to a Larger Bench. A
reference can be made to the order passed by a Division Bench of
this Court in the case of Prajith Thayyil Kallil Vs. State of Maharashtra
in Anticipatory Bail Application No.161/2022 and connected
matters decided on 5.5.20221. The discussion on this point can be
found from paragraphs-15 to 21 from the reported judgment. This
reasoning was based on two more judgments; the first one was of a
Full Bench of this Court in the case of Anant H. Ulhalkar Vs. Chief
Election Commissioner2, and the other was the order passed by a
Division Bench of this Court in the case of Jalgaon Janta Sahakari
Bank Ltd. Vs. Joint Commissioner of Sales Tax and Another3.
We are relying on these judgments and orders to adopt
the course of referring the issues before us to a Larger Bench. In
the following discussion, we are expressing our disagreement and
difference of opinion on certain views expressed by the coordinate
1 2022 SCC OnLine Bom 1051
2 2017(1) Mh.L.J. 431
3 Dated 25.11.2021 passed in OS W.P.No.2935/2018 [Division Bench of this
Court]
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Benches; and on certain issues we find that the issues lack clarity
all throughout the State of Maharashtra about the necessary
procedure and requirements for arrest and, therefore, we are of the
opinion that the issues can be decided by a Larger Bench so that
there is an authoritative pronouncement on all the issues, which
would be binding on all the concerned parties.
6. As the legal issues were argued and debated before us, it
became more and more apparent that, there is a total confusion
and lack of clarity; particularly in the minds of the investigating
agencies. The arrested accused are approaching various Courts viz.
the Magistrate Courts, Sessions Courts and the High Court. Even
before the High Court, some applications are filed before the
learned Single Judge taking up bail applications and some matters
are filed before the Division Bench seeking writ of habeas corpus
and seeking exercise of the powers under Article 226 of the
Constitution of India. Hence, there is a lack of clarity even in
respect of the Forums which can grant such a relief. In some cases,
this has given rise to unhealthy practices of choosing a Forum for
the same relief. The same issues, simultaneously, are being
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contested before the different forums and, therefore, there is a
serious possibility of conflict of decisions by different Courts across
the State. There is also confusion about the cut-off date and the
date from which certain provisions are treated as mandatory
provisions. In some of the cases, due to lack of awareness on the
part of the investigating agencies, the accused are claiming benefits
even in the most serious or heinous crimes like, rape, murder,
offences under the Protection of Children from Sexual Offences Act,
2012 (POCSO Act), the Maharashtra Control of Organised Crime
Act, 1999 (MCOCA), the Narcotic Drugs and Psychotropic
Substances Act, 1985 (NDPS Act) etc..
7. During the arguments made by both the parties, it was
realized that the decisions on these issues will affect substantial
majority of the cases, if not all the cases, wherein the accused are
arrested till date.
8. During the arguments, it was emphatically submitted by
different counsel for the Petitioners that there is total lack of
uniformity in respect of the procedure followed at the time of
obtaining the first remand of the arrested accused. There are no
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clear Rules or Regulations regarding necessity to give a copy of the
remand report to the accused or his Advocate. Though learned
Public Prosecutor Shri Venegavkar submitted that in Mumbai and
in other Districts of the State of Maharashtra the practice of giving
a copy of the first remand report to the accused is followed. This
claim was seriously disputed by learned counsel Shri Mor. He
submitted that he appears in the Magistrate Courts in Mumbai and
such practice is not followed. All these issues involving the liberty
of citizens require serious consideration.
9. There cannot be two opinions regarding the necessity to
make any arrested person aware as to why he is arrested. The
questions which are raised before us are the requirements under
Section 50 of Cr.P.C. as to whether this communication has to be in
writing or oral communication is sufficient. The other issue is
about necessity of issuing notice under Section 41A of Cr.P.C..
SUBMISSIONS ON BEHALF OF THE PETITIONERS
10. The arguments were opened by learned counsel Shri
Rishi Bhuta appearing for the Petitioner in Criminal Writ Petition
[Stamp] No.24338/2024. Very briefly the facts of the case were,
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that, on 11.5.2023 an accused was apprehended carrying the
contraband. The FIR under provisions of the NDPS Act was lodged
and during investigation the name of the Petitioner Vicky surfaced.
He was arrested on 28.9.2024. Before that, his anticipatory bail
application was rejected in March, 2024. Now the Petitioner is
claiming that the grounds of arrest were not given to him in writing
at the time of arrest and, therefore, his detention is illegal. His Bail
Application on merits was rejected by the Special Court in
November, 2024. He did not prefer any Bail Application before the
High Court on merits; instead, he has preferred Criminal Writ
Petition (Stamp) No.24338/2024 claiming his release for violation
of the mandatory provisions of Section 50 of Cr.P.C. and Section 52
of the NDPS Act. His first remand was obtained on 29.9.2024. The
main submission of Shri Bhuta was in respect of non-compliance of
Section 50 of Cr.P.C.. He has relied on various judgments of the
Hon’ble Supreme Court and different Division Benches of this
Court.
11. The arguments of all the learned counsel for both the
sides revolve around these very judgments. These judgments are as
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follows :
➢ Judgments of the Hon’ble Supreme Court in the following cases :
i. Pankaj Bansal Vs. Union of India and others4
ii. Ram Kishor Arora Vs. Directorate of Enforcement5
iii. Prabir Purkayastha Vs. State (NCT of Delhi)6➢ A Division Bench of this High Court has granted relief to the accused
in the following cases.
i. Mahesh Pandurang Naik Vs. State of Maharashtra and another7
ii. Manulla Kanchwala Vs. State of Maharashtra8
iii. Nisha Gaikwad and others Vs. State of Maharashtra9
iv. Jahir Sukha Khan Vs. State of Maharashtra10
v. Sachin Nimbalkar Vs. State of Maharashtra11
vi. Shrawan Joshi Vs. Union of India12➢ Another Division Bench of this Court gave relief to the accused in the
following cases :
i. Bharat Chaudhary Vs. State of Maharashtra and others13
ii. Hanuman Choudhary Vs. State of Maharashtra144 2023 SCC OnLine SC 1244
5 2023 SCC OnLine SC 1682
6 2024 SCC OnLine SC 934
7 Decided on 18.7.2024 in W.P. [St.] No.13835/2024 [Division Bench of this
Court]
8 Decided on 14.8.2024 in W.P. No.3276/2024 [Division Bench of this Court]
9 Decided on 15.10.2024 in W.P. [St.] No.19472/2024 [Division Bench of this
Court]
10 Decided on 16.10.2024 in W.P. [St.] No.18225/2024 [Division Bench of this
Court]
11 Decided on 23.10.2024 in W.P.[St.] No.17029/2024 [Division Bench of this
Court]
12 Decided on 25.11.2024 in W.P. [St.] No.21016/2024 [Division Bench of this
Court]
13 Decided on 25.10.2024 in W.P. No.3604/2024 [Division Bench of this Court]
14 Decided on 25.10.2024 in W.P. [St.] No.17755/2024 [Division Bench of this
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12. Out of these cases, in Nisha Gaikwad‘s case, the offences
were under Sections 364-A and 389 of IPC. In Jahir Khan‘s case,
the offence was under Section 395 of IPC. In Sachin Nimbalkar’s
case the offence was mainly under Section 302 of IPC. In the cases
of Bharat Chaudhary, Hanuman Choudhary and Shrawan Joshi the
offences were under the NDPS Act. In all these cases, the
Petitioners therein were released on the ground of non-compliance
of Section 50 of Cr.P.C..
13. Shri Bhuta submitted that the ratio of Pankaj Bansal and
Prabir Purkayastha apply to the cases involving even serious, grave
and heinous offences because Section 50 of Cr.P.C. flows from
Articles 21 and 22 of the Constitution of India. If there is violation
of the fundamental rights of the arrested accused, then, irrespective
of the gravity of the offences he must get benefit of non-compliance
of the mandatory requirements of giving grounds of arrest in
writing under Section 50 of Cr.P.C.. Shri Bhuta submitted that at
the most the investigating agency has 24 hours to give the grounds
of arrest in writing if the ratio of Ram Kishor Arora‘s case is
applied. He submitted that the jurisdiction to release the arrested
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accused on such consideration can be exercised by all the Courts
including the Courts of Magistrate, Session and the High Court.
14. Shri Bhuta made his submissions in respect of the
different view taken by the same Division Bench which decided
Mahesh Naik‘s case. The different view was expressed in a
judgment dated 25.11.2024 passed in Criminal Writ Petition
No.3533/2024 in the case of Mihir Rajesh Shah Vs. State of
Maharashtra15. In the said case also, the arguments were advanced
by Shri Bhuta. On that occasion, the same Division Bench which
had decided Mahesh Naik‘s case; took a different view and had
made an exception in refusing relief to the Petitioner in that case.
Shri Bhuta submitted that the consideration in Mihir Shah‘s case
was in respect of the circumstances in which he was apprehended
and that the said ratio will not affect the ratio taken in all the other
cases by the two different Division Benches of this Court in the
aforementioned cases.
15. Learned Counsel Mr. C.J. Joveson in Criminal Writ
Petition No.5588/2024 relied on certain observations from Pankaj
15 2024 SCC OnLine Bom 3660
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Bansal‘s case to support the same submissions made by Shri Rishi
Bhuta. In this case the offence was under Section 302 of IPC.
16. Learned Senior Counsel Shri Pasbola was representing
the Petitioners, who were involved in the offences under Section
420 of IPC. The Petitioners were the bank officers. He submitted
that irrespective of the gravity of the offences, the mandate of
Section 50 of Cr.P.C. must be followed. Only when the accused is
caught red-handed while committing the offence or soon thereafter
the discretion may lie with the Court to consider that fact and deny
him the benefit of his release.
17. Learned counsel Shri Niranjan Mundargi submitted that
the language of Section 50 of Cr.P.C. does not leave any scope to
consider the circumstances in which the accused is arrested and, in
all cases, the mandatory provision of Section 50 of Cr.PC. of giving
grounds of arrest in writing has to be followed. He submitted that,
in future, there can be corrective measures viz. recording video at
the time of giving grounds of arrest in writing; which would
conclusively establish that such requirement is followed and there
would not be any dispute about compliance of Section 50 of Cr.P.C..
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18. Learned counsel Shri Satish Mishra supported the
submissions of Shri Bhuta.
19. Learned counsel Shri Manoj Goud appeared in Criminal
Writ Petition (Stamp) No.24461/2024. He submitted that the same
Division Bench that had decided Mihir Shah‘s case against the
accused, vide a subsequent order in the case of Amit Giridhar Lalge
Vs. The State of Maharashtra and another 16 had directed release of the
Petitioner in that case for non-compliance of Section 50 of Cr.P.C..
In that case, it was observed that Section 47 of the Bharatiya
Nagarik Suraksha Sanhita (BNSS) was pari materia with Section 50
of Cr.P.C.. Shri Goud submitted that in the case of Amit Lalge the
allegations were that the Petitioner therein by using his authority
had wrongly approved and disbursed tax refund to sixteen
taxpayers who were not eligible to get it. Shri Goud, therefore,
submitted that even after Mihir Shah’s judgment , the Division
Bench had granted relief to the accused in a serious case involving
huge amount of money, for non-compliance of Section 50 of Cr.P.C..
20. Learned Counsel Shri Ganesh Gole addressed another
16 Decided on 28.11.2024 in Criminal W.P. No.4487/2024 [Division Bench of this
Court]
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issue. He supported all these submissions and further added that if
the accused is released on these grounds he can be re-arrested
only if further material is found out, necessitating his arrest. And at
that time, there has to be due compliance of the procedure.
21. Learned counsel Shri Gaware-Patil referred to Sections
50 and 50-A of Cr.P.C. and supported the submissions in favour of
the accused.
22. Learned Senior Counsel Shri Amit Desai concluded the
debate on behalf of the Petitioners by making his own submissions.
He submitted that all these judgments passed by the Hon’ble
Supreme Court deal with the facet of fundamental rights under
Articles 21 & 22 of Constitution of India. Therefore, if there is a
breach of these rights by the investigating authorities, the question
of prejudice caused to the accused does not arise. All these
violations in respect of the fundamental rights, must uniformly and
without exception lead to release of the accused. The only
concession in these cases is that compliance of Section 50 of Cr.P.C.
by giving grounds of arrest in writing is made mandatory by Pankaj
Bansal‘s case from the date of that judgment. He submitted that in
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a given case the victim may claim prejudice caused by release of the
accused but the victim’s right is limited only for fair investigation.
The victim cannot have any say in the arrest and custody of the
accused in any case. It is purely the discretion of the investigating
officer. He submitted that, in case the accused is released on these
grounds; suitable conditions can be imposed on the accused so that
the victims are sufficiently protected and the accused does not
commit any crime in future. He submitted that after the accused is
released for non-compliance of Section 50 of Cr.P.C. he cannot be
re-arrested as it would be violation of Article 21 of the Constitution
of India. That would open flood-gates for litigation in cases where
the accused are already released for such non-compliance of
Section 50 of Cr.P.C.. Learned Senior Counsel made submissions
regarding provisions of Sections 41 & 41A of Cr.P.C.. According to
him, for the offence punishable upto seven years the notice under
Section 41A of Cr.P.C. is mandatory before arrest. He referred to the
circulars issued by the High Court and Director General of Police,
Maharashtra State. One of them was a notification dated
21.10.2023 issued by the Registrar General of this Court bearing
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No.Rule/Misc – 01/2023. The notification dated 21.10.2023 reads
thus :
“HIGH COURT OF JUDICATURE APPELLATE SIDE
AT BOMBAYNOTIFICATION
No. Rule/Misc – 01/2023 Date : 21/10/2023.
In exercise of the powers conferred under Article 227 of
the Constitution of India and all other enabling powers and in
compliance of the directions issued by the Hon’ble Supreme
Court of India vide order dated 31.07.2023 passed in Criminal
Appeal No. 2207 of 2023, titled as Md. Asfak Alam Vs. The
State of Jharkhand & Anr. 2023 SCC Online SC 892, the
Hon’ble the Chief Justice is pleased to direct that :
1. The police shall not automatically arrest when a
case under Section 498-A IPC is registered. The
Police shall first satisfy themselves about the
necessity for arrest under the parameters laid down
in Arnesh Kumar Vs. State of Bihar and Anr.
[Criminal Appeal No. 1277 of 2012] flowing from
Section 41 CrPC;
2. All police officers shall be provided with a check
list containing specified sub-clauses under Section
41(1)(b)(ii);
3. The police officer shall forward the check list duly
filled and furnish the reasons and materials which
necessitated the arrest, while forwarding /
producing the accused before the Magistrate for
further detention;
4. The Magistrate while authorizing detention of the
accused shall peruse the report furnished by the
police officer in terms aforesaid and only after
recording its satisfaction, the Magistrate will
authorize detention;
5. The decision not to arrest an accused, be forwarded
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to the Magistrate within two weeks from the date of
the institution of the case with a copy to the
Magistrate which may be extended by the
Superintendent of Police of the District for the
reasons to be recorded in writing;
6. Notice of appearance in terms of Section 41-A CrPC
be served on the accused within two weeks from
the date of institution of the case, which may be
extended by the Superintendent of Police of the
District for the reasons to be recorded in writing;
7. Failure to comply with the directions aforesaid shall
apart from rendering the police officers concerned
liable for departmental action, they shall also be
liable to be punished for contempt of court to be
instituted before the High Court of Bombay.
8. Authorizing detention without recording reasons as
aforesaid by the Judicial Magistrate concerned
shall be liable for departmental action by the
Bombay High Court.
9. The directions as aforesaid shall not only apply to
the case under Section 498-A IPC or Section 4 of
the Dowry Prohibition Act, but also such cases
where offence is punishable with imprisonment for
a terms which may be less than seven years or
which may extend to seven years, whether with or
without fine.
However, in view of Supreme Court’s
Judgment dated 07th August 2023, in Criminal
Appeal Nos. 2284-2285 of 2023 in the matter of V.
Senthil Balaji Vs. The State Represented by Deputy
Director and Ors., Section 41A of CrPC shall have
no application to an arrest made under the
Prevention of Money Laundering Act, 2002.
This Notification shall come into force with immediate
effect.
Strict compliance of the above directions is ensured.
HIGH COURT OF JUDICATURE )
AT BOMBAY ) Sd/-
) R. N. JOSHI
Dated 21st OCTOBER, 2023 ) REGISTRAR GENERAL"
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23. The other circular is in the nature of Director General’s
Standing Order No.3/2022 dated 20.7.2022. There is a reference
to certain judgments of the Hon’ble Supreme Court. These are the
directions to the various police officers issued by the Director
General of Police, Maharashtra State asking the police officers to
follow those judgments. Shri Desai submitted that if there is
violation of the fundamental rights; the question of prejudice to the
accused does not arise and the mandatory provisions flowing from
the Articles 21 and 22 of the Constitution of India will have to be
strictly followed.
24. Mr. Binod Agarwal appears as a party in-person and
submitted that the ratio of the Hon’ble Supreme Court in the case
of Arnesh Kumar Vs. State of Bihar17 and Satendra Kumar Antil Vs.
Central Bureau of Investigation and another18, is that the issuance of
notice under Section 41-A of Cr.P.C. is necessary in all cases
including where the punishment is only upto seven years.
17 (2014) 8 SCC 273
18 (2022) 10 SCC 51
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SUBMISSIONS OF LEARNED ADVOCATE GENERAL :
25. The learned Advocate General submitted that Section 50
of Cr.P.C. flows from Article 22(1) which is discussed in the
aforementioned Supreme Court cases. He submitted that the
investigating agency has at least 24 hours with them to furnish the
grounds of arrest in writing to the arrested accused, as is held in
the case of Ram Kishor Arora. He submitted that if the remand
report is given to the accused and his Advocate within 24 hours at
the time of the first remand, it is the sufficient requirement of
giving the grounds of arrest in writing to the accused under Section
50 of Cr.P.C.. He submitted that depending on the circumstances, if
those circumstances show that the grounds were within the
accused’s knowledge, then, there was no necessity to give him
grounds of arrest because no prejudice would be caused to him.
The necessity to communicate the grounds of arrest is with a
purpose that the accused should be aware as to why he is arrested
but when he is already aware that he is arrested because of his acts
and the circumstances in which he is arrested; then obviously it is
not necessary to complete the formality of giving grounds of arrest
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in writing. He submitted that, for example, an accused is caught in
the act of committing an offence like murder, in that case it would
be totally illogical to expect the investigating agency to write down
the grounds of arrest and hand them over to him. The
circumstances can be tested by the Court granting first remand as
to whether it was necessary to give grounds of arrest in writing. He
submitted that the proper Forum to raise this issue of release of the
accused for non-compliance of Section 50 of Cr.P.C. would be that
of the Magistrate’s Court before whom the accused is produced on
the first occasion for the first remand. It was for the accused to
raise this ground at the first available opportunity and, therefore,
he can not be left to raise this issue at his wish in any other forum
at a later point of time. He cannot raise this issue even before the
High Court or before any other Court in bail applications or similar
applications if he had not raised this issue at the first instance
before the learned Magistrate. He further submitted that in cases
where the accused had preferred Anticipatory Bail Applications
showing that they were contested and decided and after that if he
is arrested then obviously he would know why he is being arrested.
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In such cases, it would not be necessary to give grounds of arrest.
He submitted that the concept of requirement to communicate the
grounds of arrest is not new. It was first considered in the case of
Madhu Limaye and others19
26. Learned Advocate General relied on the case of Prashant
Kumar Brahmabhatt Vs. State of Maharashtra 20 decided by the same
Division Bench deciding the case of Mahesh Naik. But, on this
occasion the arrested accused was not directed to be released
because the Petitioner in that case had preferred Anticipatory Bail
Application under Section 438 of Cr.P.C. and, therefore, it was held
that he was aware of the grounds of arrest when he had
approached the Court for anticipatory bail. In that case, it was held
that it was not necessary to give the grounds of arrest to the
accused.
27. The learned Advocate General referred to the order
passed in the case of Danish Rafiq Fansophkar Vs. State of
Maharashtra21. In that case, the Petitioner was caught with the
19 AIR 1969 SUPREME COURT 1014
20 Decided on 24.10.2024 in Writ Petition (Stamp) No.18663/2024 (Division Bench
of this Court]
21 Decided on 16.10.2024 in Criminal Writ Petition (Stamp) No.19471/2024
(Division Bench of this Court]
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contraband. His search had led to seizure of the contraband. The
station diary entry mentioned that the Petitioner was informed
about the grounds of arrest. It was observed that in a peculiar case
like that, where the Petitioner was conscious of the fact as to why
his arrest was being effected, since his search led to seizure of
contraband from him and even if the formal grounds of arrest were
not communicated to him, the Court did not find any flaw in the
action on the part of the investigating agency; and hence he was
not released.
28. Learned Advocate General submitted that the law laid
down in Mihir Shah‘s case is correct and it should be followed in all
other cases. He tried to reconcile the ratio in Mihir Shah with
Mahesh Naik‘s case and submitted that in a given case depending on
the circumstances, the Court has discretion to deny such a relief
even if there is alleged non-compliance of Section 50 of Cr.P.C..
29. He submitted that the purpose to furnish grounds of
arrest is to enable the accused to effectively defend himself at the
stage of remand itself. According to him, giving a copy of the
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remand report would be sufficient compliance of the requirement
of giving the grounds of arrest in writing. Section 50 does not
speak about the particular form or format in which the grounds of
arrest are required to be given. He invited our attention to the
specific language of Articles 21 & 22 of the Constitution of India in
comparison with Section 50 of Cr.P.C. as well as in comparison to
the language of Section 19 of PMLA and Section 43-B of UAPA. He
further submitted that for the purpose of applying the ratio and
thereby holding that if the requirement to give grounds of arrest in
writing are to be considered, then it has to be from the date of the
judgment passed by the Hon’ble Supreme Court in Prabir
Purkayastha which was decided on 15.5.2024, in any case the cut
off date cannot be prior to the date of Pankaj Bansal’s judgment
which was decided on 3.10.2023.
30. The other main submission made by the learned
Advocate General was that even if the accused is released on some
procedural lapses on the part of the investigating agency, there is
no bar for re-arresting the accused. In fact in such cases, the
accused will have to be re-arrested after complying with the
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procedural requirements which were not complied with. He
submitted that if such course of action is not taken, the accused
may abscond by taking advantage of these technical lapses and the
victim may suffer irreparably. The investigation will not progress,
causing miscarriage of justice. In some cases the accused may even
leave the country and may not be available again. In short, the
entire society will be affected if the accused is given benefit of
technical lapses on the part of the investigating agency; if they are
not allowed to be corrected subsequently. He submitted that there
is no statutory embargo in rearresting the accused who is released
because of non-supply of grounds of arrest in writing.
31. The learned Advocate General referred to the judgment
of a Division Bench of this Court in the case of Kavita Manikikar Vs.
Central Bureau of Investigation and another 22 in which even after
directing release of the Petitioner therein for non-compliance of
Section 46(4) of Cr.P.C., the Division Bench further observed that
the investigating agency was not precluded from arresting the
Petitioner if the investigation so warranted after following due
22 Decided on 10.5.2018 in Writ Petition No.1142/2018 (Division Bench of this
Court)
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procedure of law.
32. Learned Advocate General advanced his separate
arguments on Sections 41 & 41A of Cr.P.C.. He submitted that the
judgments of the Hon’ble Supreme Court in Arnesh Kumar and
Satendra Kumar Antil clearly lay down that the provisions of Sections
41 & 41A of Cr.P.C. will have to be followed. He submitted that
Section 41 provides a check-list which the investigating officer has
to prepare in writing before arresting a person who is accused to
have committed an offence punishable upto seven years and there
is a proviso to Section 41(1)(b)(ii) which mentions that a police
officer in all cases where the arrest of a person is not required
under the provisions of this sub-section, must record the reasons in
writing for not making the arrest. Section 41A refers to the
provisions of sub-section (1) of Section 41 of Cr.P.C. and mentions
that in all cases where the arrest of a person is not required under
Section 41(1), a notice is required to be issued. He submitted that
therefore Section 41A covers the offences not only where the
punishment is more than seven years but also the offences where
the punishment is upto seven years and in such cases only when the
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arrest is not necessary, the police officer is duty bound to issue a
notice. But when a police officer wants to arrest a person who has
allegedly committed the offence punishable upto seven years he
has to prepare a check-list provided in Section 41(1)(b) of Cr.P.C.
and that check-list will have to be considered by the Magistrate
granting remand. Apart from that, there is no embargo for the
investigating agency to arrest any person if in its opinion the arrest
is necessary.
33. Learned Advocate General referred to the judgment of a
Division Bench of this Court in the case of Abhijit Arjun Padale Vs.
State of Maharashtra and others 23. In that case the offence for which
the Petitioner was arrested was under Sections 384 and 506 of IPC.
The maximum punishment under section 384 of IPC was extending
upto three years. A contention was raised that the notice under
Section 41A of Cr.P.C. was not served on the Petitioner and,
therefore, he was entitled to be released. In paragraph-8 of the
said judgment, it was observed that the offence alleged against the
Petitioner was not punishable with imprisonment of more than
23 Decided on 22.8.2024 in Writ Petition No.1197/2022 (Division Bench of this
Court).
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seven years and as such the notice under Section 41A of Cr.P.C.
ought to have been served on the Petitioner. As it was not served,
the Petitioner in that case was directed to be released on bail.
Learned Advocate General submitted that for the offences
punishable upto seven years also when the opinion of the Police
Officer is that the arrest of the accused is necessary, service of
notice under Section 41A is not necessary. The only requirement is
to prepare a check-list under Section 41(b)(ii) before the arrest of
the accused, and therefore, it is necessary that this position is
clarified by an authoritative pronouncement.
34. Learned Advocate General also referred to the order of
another Division Bench of this Court in the case of Bhairaram
Saraswat Vs. State of Maharashtra24. In that case the Petitioner was
accused of the offence punishable under Section 420 read with 34
of IPC, which is punishable upto seven years imprisonment. The
contention was that the Petitioner was not served with the
mandatory notice under Section 41A, according to the Petitioner.
In that case, the Division Bench expressed doubt as to whether
24 Decided on 5.4.2024 in Criminal Writ Petition (St.) No.7551/2024 (Division
Bench of this Court).
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Section 41-A notice was served and the Petitioner was released on
interim cash bail. The Petition was kept pending. He submitted that
this order would also indicate that for the offence punishable upto
seven years, the notice under Section 41A was necessary.
According to learned Advocate General this interpretation is not
correct based on bare reading of Sections 41 & 41A of Cr.P.C.. He
submitted that the specific directions of the Hon’ble Supreme Court
in the cases of Arnesh Kumar and Satendra Kumar Antil are very
clear that the provisions of Sections 41 & 41A will have to be
followed strictly and, therefore, reading something into these
provisions would be against the directions issued by the Hon’ble
Supreme Court in both these cases.
35. Learned counsel Mrs. Pai appeared for NCB in Criminal
Writ Petition No5694/2024. She relied on the observations of a
Single Judge Bench of the High Court of Karntaka in the case of
John Moses D @ Madan Kumar s/o John Devamani Vs. State of
Karnataka25. She submitted that this judgment has laid down that
the interpretation of the judgments of the Hon’ble Supreme Court
25 Decided on 28.11.2024 in Writ Petition No.22042/2024 [Single Bench of
Karnataka High Court]
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in the case of Pankaj Bansal and Prabir Purkayastha cannot be
stretched to the offences under IPC or any other penal law. It was
further held that if the arrest is under the PMLA or UAPA then the
directions of the Hon’ble Supreme Court in those cases would
become applicable. It was further observed that what was held by
the Hon’ble Supreme Court in those judgments was considered qua
the facts in the case at hand and those observations would not
become applicable to the offences under Karnataka Control of
Organised Crime Act, 2000 (KCOCA) or the IPC or any arrest under
any penal law.
36. Learned counsel Ms. Nitee Punde appearing for the CG-
ST Authorities in Criminal Writ Petition (Stamp) No.24115/2024
referred to Section 69 of the CGST Act, 2017. She invited our
attention to Sections 69 and 132 of the said Act. In such cases the
arrest is effected only after preliminary investigation and, therefore,
the accused is aware about the offence and hence furnishing
separate grounds of arrest, according to her, was not necessary.
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REJOINDER BY THE PETITIONERS :
37. In rejoinder on behalf of the Petitioners, learned Senior
Counsel Shri Amit Desai submitted that the remand report is
submitted for the purpose of asking for remand from the Magistrate
and satisfying the Magistrate for necessity of police custody or
judicial custody remand. The grounds of arrest are different for
these considerations. The grounds of arrest are required to be
given separately. They cannot be equated with the remand report.
The Cr.P.C. does not mention or define the ‘remand application’.
However, Cr.P.C. refers to the phrase ‘grounds of arrest’. There is no
uniformity about the format of remand report or necessity to give a
copy of the remand report to the accused. Therefore, that would be
left to the arbitrary exercise on the part of the investigating agency
to perform their duty if grounds of arrest in writing are to be
equated with the remand report. Some directions are required to
be given to ensure compliance of the Statutory and Constitutional
mandate. He submitted that floodgates opening for litigation on the
ground of non-supply of grounds of arrest is no reason to deny
benefit to the arrested accused who are not given grounds of arrest
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in writing. He submitted that re-arrest of the accused after release
on procedural lapses, violates Article 21 of the Constitution of India
and, therefore, is not permissible. The State should not be given a
second chance to perform their duty, if they fail to protect the
fundamental rights of a citizen while effecting arrest. Breach of
fundamental rights is more important than consideration of
possible prejudice to the accused. The Courts are required to see
the breach as alleged by the accused and not the prejudice which is
likely to be caused to the accused.
REASONS AND CONCLUSIONS :
38. Before discussing the reasons of our conclusion, it is
necessary to refer to certain provisions which are the subject matter
of this entire discussion. The relevant provisions are thus :
◦ Articles 21 & 22 of the Constitution of India:
21. Protection of life and personal liberty. — No person shall be
deprived of his life or personal liberty except according to
procedure established by law.
22. Protection against arrest and detention in certain cases.–
(1) No person who is arrested shall be detained in custody
without being informed, as soon as may be, of the grounds for
such arrest nor shall he be denied the right to consult, and to
be defended by, a legal practitioner of his choice.
(2) Every person who is arrested and detained in custody
shall be produced before the nearest magistrate within a
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period of twenty-four hours of such arrest excluding the time
necessary for the journey from the place of arrest to the court
of the magistrate and no such person shall be detained in
custody beyond the said period without the authority of a
magistrate.
(3) Nothing in clauses (1) and (2) shall apply-
(a) to any person who for the time being is an enemy
alien; or
(b) to any person who is arrested or detained under
any law providing for preventive detention.
(4) No law providing for preventive detention shall authorise
the detention of a person for a longer period than three months
unless-
(a) an Advisory Board consisting of persons who
are, or have been, or are qualified to be appointed
as, Judges of a High Court has reported before the
expiration of the said period of three 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
provision 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
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Board in accordance with the provisions of sub-
clause (a) of clause (4);
(b) the maximum period for which any person
may in any class or classes of cases be detained
under any law providing for preventive detention;
and
(c) the procedure to be followed by an Advisory
Board in an inquiry under sub-clause (a) of clause
(4).”
*******
◦ Sections 41, 41-A, 50 & 50A of Cr.P.C.:
41.When police may arrest without warrant
(1) Any police officer may without an order from a Magistrate
and without a warrant, arrest any person–
(a) who commits, in the presence of a police officer, a
cognizable offence;
(b) against whom a reasonable complaint has been made, or
credible information has been received, or a reasonable
suspicion exists that he has committed a cognizable offence
punishable with imprisonment for a term which may be less
than seven years or which may extend to seven years whether
with or without fine, if the following conditions are satisfied,
namely:–
(i) the police officer has reason to believe on the basis of such
complaint, information, or suspicion that such person has
committed the said offence;
(ii) the police officer is satisfied that such arrest is necessary–
(a) to prevent such person from committing any further
offence; or
(b) for proper investigation of the offence; or
(c) to prevent such person from causing the evidence of the
offence to disappear or tampering with such evidence in any
manner; or
(d) to prevent such person from making any inducement,
threat or promise to any person acquainted with the facts of
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(e) as unless such person is arrested, his presence in the Court
whenever required cannot be ensured,
and the police officer shall record while making such arrest,
his reasons in writing.
[Provided that a police officer shall, in all cases where the
arrest of a person is not required under the provisions of this
sub-section, record the reasons in writing for not making the
arrest.]
(ba) against whom credible information has been received that
he has committed a cognizable offence punishable with
imprisonment for a term which may extend to more than
seven years whether with or without fine or with death
sentence and the police officer has reason to believe on the
basis of that information that such person has committed the
said offence;
(c) who has been proclaimed as an offender either under this
Code or by order of the State Government; or
(d) in whose possession anything is found which may
reasonably be suspected to be stolen property and who may
reasonably be suspected of having committed an offence with
reference to such thing; or
(e) who obstructs a police officer while in the execution of his
duty, or who has escaped, or attempts to escape, from lawful
custody; or
(f) who is reasonably suspected of being a deserter from any
of the Armed Forces of the Union; or
(g) who has been concerned in, or against whom a reasonable
complaint 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
(h) who, being a released convict, commits a breach of any
rule made under sub-section (5) of section 356; or
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(i) 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 42, no person
concerned in a non-cognizable offence or against whom a
complaint has been made or credible information has been
received or reasonable suspicion exists of his having so
concerned, shall be arrested except under a warrant or order of
a Magistrate.
…………
41A. Notice of appearance before police officer
(1) The police officer shall, in all cases where the arrest of a
person is not required under the provisions of sub-section (1)
of section 41, issue a notice directing the person against whom
a reasonable complaint has been made, or credible
information has been received, or a reasonable suspicion
exists that he has committed a cognizable offence, to appear
before him or at such other place as may be specified in the
notice.
(2) Where such a notice is issued to any person, it shall be the
duty of that person to comply with the terms of the notice.
(3) Where such person complies and continues to comply with
the notice, he shall not be arrested in respect of the offence
referred to in the notice unless, for reasons to be recorded, the
police officer is of the opinion that he ought to be arrested.
(4) Where such person, at any time, fails to comply with the
terms of the notice or is unwilling to identify himself, the
police officer may, subject to such orders as may have been
passed by a competent Court in this behalf, arrest him for the
offence mentioned in the notice.
…………
50. Person arrested to be informed of grounds of arrest
and of right to bail
(1) Every police officer or other person arresting any person
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without warrant shall forthwith communicate to him full
particulars of the offence for which he is arrested or other
grounds for such arrest.
(2) Where a police officer arrests without warrant any person
other than a person accused of a non-bailable offence, he shall
inform the person arrested that he is entitled to be released on
bail and that he may arrange for sureties on his behalf.
…………
50A. Obligation of person making arrest to inform about
the arrest, etc., to a nominated person. — (1) Every police
officer or other person making any arrest under this Code shall
forthwith give the information regarding such arrest and place
where the arrested person is being held to any of his friends,
relatives or such other persons as may be disclosed or
nominated by the arrested person for the purpose of giving
such information.
(2) The police officer shall inform the arrested person of his
rights under sub-section (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 may be prescribed in this behalf
by the State Government.
(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.]
********
◦ Section 19 of PMLA Act :
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 (that 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
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other officer shall, immediately after arrest of such person
under sub-section (1), forward a copy of the order alongwith
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.
*******
◦ Section 43B of UAPA :
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.
*******
39. As submitted by the learned Advocate General, in a given
case viz., apprehending the accused while he is in the act of
committing serious offence like murder or soon thereafter; it would
not be possible for the police officers to write down the grounds of
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arrest and handing over them to the accused. It would be equally
difficult to serve grounds of arrest when an absconding accused or
a proclaimed offender is arrested from a place which is not easily
accessible. The circumstances of arrest in such cases would be
important. However, if Section 50 is to be held mandatory to mean
that the grounds of arrest must be given in writing then such
requirement must apply to all the cases, or the arrest made under
all the circumstances without exception, irrespective of the gravity
or seriousness of the crime. Section 50 does not qualify its
applicability to the circumstances in which the arrest is effected or
the gravity of the offence. The Cr.P.C. itself takes note of different
degree of gravity of offences. Depending on that differentiation,
the offences are made bailable or non-bailable, cognizable or non-
cognizable and takes note of different punishments provided for
different offences. For example, Section 41 differentiates between
the offences which are punishable upto seven years and the other
offences punishable with more than seven years. But such
differentiation is conspicuously absent in Section 50 of Cr.P.C. It is
not possible to read something more in Section 50 than the clear
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expressions of that particular Section. Therefore, we are unable to
agree with the submissions of learned Advocate General that the
Court has discretion to see the circumstances in which the accused
is arrested.
40. We are unable to agree with the submissions of the
learned Advocate General that if the accused has applied for
anticipatory bail and after due consideration of arguments of both
the sides and the material produced, it is rejected; then if he is
arrested, in that case the grounds of arrest are not required to be
served on him as he is aware as to why he is arrested. That would
carve out an unfair category of the accused who exercise their
statutory remedy of applying for anticipatory bail under Section
438 of Cr.P.C.. They would be deprived of the compliance of
requirement or necessity enjoined on the investigating officers to
furnish the grounds of arrest. To that extent we do not agree with
the view expressed by a Division Bench of this Court in the case of
Prashantkumar Brahmabhatt wherein it was held that since at the
stage of anticipatory bail application the material against the
accused was considered then there was no necessity to furnish
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grounds of arrest. In that case relief of anticipatory bail was sought.
The grounds taken for that relief would reflect that the Applicant
was aware of the accusations levelled against him and what were
the grounds which necessitated his arrest. In that case, it was held
that the Petitioner had knowledge about the grounds and,
therefore, no prejudice was caused to him; and he was not directed
to be released, though the grounds of arrest were not served on
him.
In fact, this particular view expressed in Prashantkumar
Brahmabhatt was in direct contrast to the discussion and reasons
mentioned in Mahesh Naik‘s case by the Division Bench. In Mahesh
Naik‘s case also the same argument was noted in Paragraph-7. The
learned APP had submitted that since the accused therein had filed
anticipatory bail application, he was expected to know the reasons
for his arrest. Therefore, this issue of filing anticipatory bail
application was specifically raised in that case, which did not find
favour for deciding that Petition directing the Petitioner’s release.
Thus, there is already a conflict of opinion on that particular issue.
In our opinion, whether the accused had preferred
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anticipatory bail application or not should not make a difference
and it would be the duty of the investigating agency to
communicate to the accused as to why he is arrested. Having said
this, the core question remains as to what should be the mode of
communication, whether the grounds of arrest have to be given in
writing or it is sufficient compliance if the accused is orally
communicated forthwith of full particulars of the offence for which
he is arrested or other grounds for such arrest.
41. The bare reading of Section 50 does not lay down that
this requirement of communicating forthwith has to be in writing.
As discussed earlier, under some circumstances, it would not be
possible to prepare the grounds of arrest in writing and serving
them on the accused. The word ‘forthwith’ will also have to be
construed accordingly.
42. The next issue would be the effect of the aforementioned
Apex Court judgments on Section 50 of Cr.P.C. and as to whether
the ratio of those Supreme Court judgments would mean that the
accused should be given the grounds of arrest in writing as a
requirement of Section 50 of Cr.P.C.. On this issue, we are inclined
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to agree with the observations of the learned Single Judge of the
Karnataka High Court in the case of John Moses D and, therefore,
we are taking a different view from the view expressed in Mahesh
Naik and other cases, referred to hereinabove, which require that
the grounds of arrest have to be served on the accused in writing
at the time of his arrest within the meaning of Section 50 of Cr.P.C..
43. Section 50A of Cr.P.C. also provides safeguards against
the arbitrary arrest and keeping the accused in custody arbitrarily.
It is the duty cast on the police officer making arrest to forthwith
give information regarding such arrest and the place where he is
held, to his friends, relatives or other persons as disclosed or
nominated by the arrested person and it is the duty of the police
officer to inform the arrested person of his rights under Section 50A
of Cr.P.C.. The Police Officers are also required to make an entry to
that effect in a book kept for that purpose at the police station. And
it is the duty of the Magistrate to satisfy himself that all these
requirements are complied with. In the entire scheme of Section
50A the wordings used is ‘forthwith give the information’ (emphasis
supplied). Section 50 and Section 50A will have to be read
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together. There is no doubt that the accused must be told why he is
being arrested and the particulars of the offence, but if he is clearly
informed about it, then whether it is further required that such
information must be provided in writing, is the question.
44. It is our firm opinion that it is important to communicate
forthwith to the arrested accused as to why he is arrested. We are
also of the opinion that a copy of the remand report, particularly at
the time of obtaining first remand, must be given to the accused or
his Advocate so that they can resist grant of remand on the very
first occasion. It is necessary that some rules are framed or
provision is made to ensure fair opportunity to the accused to resist
his custody on the very first occasion when he is produced before
the Magistrate.
45. The question would arise whether at the time of arrest
the grounds of arrest must be given in writing or oral
communication forthwith would be sufficient. We are inclined to
refer this issue to a Larger Bench for consideration.
46. The Division Bench of this court in the case of Mahesh
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Naik has referred to the Judgments of the Hon’ble Supreme Court.
The first judgment which needs to be discussed is Pankaj Bansal’s
judgment. In Paragraph-16 of the said judgment, the Hon’ble
Supreme Court observed that the only issue for consideration was
whether the arrest of those Appellants under Section 19 of PMLA
was valid and lawful and whether the impugned orders of remand
passed by the Additional Sessions Judge, Panchkula were valid. It
was further observed that in that context, mere passing of an order
of remand would not be sufficient in itself to validate their arrest if
such arrests were not in conformity with the requirements of
Section 19 of PMLA. In this background, the Hon’ble Supreme
Court considered various other cases, including a Three Judge
Bench judgment of the Hon’ble Supreme Court in the case of Vijay
Madanlal Choudhary Vs. Union of India 26 and the judgment of the
Hon’ble Supreme Court in the case of V. Senthil Balaji Vs. State27.
In Paragraph-35, the Hon’ble Supreme Court observed
that no consistent and uniform practice seemed to be followed by
ED in respect of furnishing grounds of arrest in writing to the
26 (2023) 12 SCC 1
27 (2024) 3 SCC 51
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arrested person, as written copies of the grounds of arrest are
furnished to arrested persons in certain parts of the country but in
other areas, that practice is not followed and the grounds of arrest
are either read out to them or allowed to be read by them.
Paragraphs-38, 39 & 42 lay down the ratio of this judgment which
read thus :
“38. In this regard, we may note that Article 22(1) of the
Constitution provides, inter alia, that no person who is
arrested shall be detained in custody without being
informed, as soon as may be, of the grounds for such arrest.
This being the fundamental right guaranteed to the arrested
person, the mode of conveying information of the grounds
of arrest must necessarily be meaningful so as to serve the
intended purpose. It may be noted that Section 45 PMLA
enables the person arrested under Section 19 thereof to seek
release on bail but it postulates that unless the twin
conditions prescribed thereunder are satisfied, such a
person would not be 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 to54 / 91
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WP-ST-24338-24-GROUP.odtbe 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.
39. We may also note that the language of Section 19 PMLA
puts it beyond doubt that the authorized officer has to
record in writing the reasons for forming the belief that the
person proposed to be arrested is guilty of an offence
punishable under the Act of 2002. Section 19(2) requires
the authorized officer to forward a copy of the arrest order
along with the material in his possession, referred to in
Section 19(1), to the Adjudicating Authority in a sealed
envelope. Though it is not necessary for the arrested person
to be supplied with all the material that is forwarded to the
Adjudicating Authority Under Section 19(2), he/she has a
constitutional and statutory right to be ‘informed’ of the
grounds of arrest, which are compulsorily recorded in
writing by the authorized officer in keeping with the
mandate of Section 19(1) PMLA. As already noted
hereinbefore, it seems that the mode of informing this to
the persons arrested is left to the option of the ED’s55 / 91
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WP-ST-24338-24-GROUP.odtauthorised officers in different parts of the country, i.e., to
either furnish such grounds of arrest in writing or to allow
such grounds to be read by the arrested person or be read
over and explained to such person.
xxxxxxx
xxxxxxx
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 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 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
Vs. State (2024) 3 SCC 51. 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)56 / 91
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WP-ST-24338-24-GROUP.odtPMLA, to the arrested person under due acknowledgment,
instead of leaving it to the debatable ipse dixit of the
authorized officer.”
In Paragraph-43, it is observed that conveying the
information regarding grounds of arrest was not only to apprise the
arrested person as to why he/she was 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.
. In Paragraph-45, it was observed thus :
“45. 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. ……..”
Thus, it can be seen that this judgment exclusively deals
with the provisions of the PMLA Act in terms of arrest and necessity
to furnish the grounds of arrest in writing. Reference is also made
to Section 45 of the PMLA Act where the twin conditions for grant
of bail as referred to in Paragraph-38 are required to be considered.
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47. After Pankaj Bansal‘s case, the Hon’ble Supreme Court
considered the words and phrases ‘as soon as may be’ in the case of
Ram Kishor Arora. In Paragraph-22, the Hon’ble Supreme Court
observed thus :
“…………Therefore, in our opinion the person arrested, if
he is informed or made aware orally about the grounds of
arrest at the time of his arrest and is furnished a written
communication about the grounds of arrest as soon as may
be i.e. as early as possible and within reasonably
convenient and requisite time of twenty-four hours of his
arrest, that would be sufficient compliance of not only
Section 19 of PMLA but also of Article 22(1) of the
Constitution of India.”
The Hon’ble Supreme Court, in this case, also observed
that Pankaj Bansal’s judgment itself mentions that those directions
would apply prospectively and from the date of Pankaj Bansal’s
case. A specific reference was made to Section 19 of PMLA.
48. Another important judgment in this context is in the case
of Prabir Purkayastha. The brief facts of this case are that in
connection with FIR No.224/2023 dated 17.8.2023 registered at PS
Special Cell, Lodhi Colony, New Delhi, the residential and official
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premises of the Appellant in that case, and one company were raided.
The offences applied were punishable under Sections 13, 16, 17, 18, 22-C
of the Unlawful Activities (Prevention) Act, 1967 (for short, ‘UAPA’)
read with Sections 153-A, 120-B of IPC. The Appellant therein was
arrested in connection with that FIR on 3.10.2023. He was produced in
the Court of Additional Sessions Judge-02, Patiala House Courts, New
Delhi on 4.10.2023 sometime before 6.00 a.m.. It was argued on behalf
of the Appellant that the grounds of arrest were conveyed to the Advocate
for the Appellant well after 7.00 a.m.. The Hon’ble Supreme Court while
deciding this case extensively referred to the ratio of Pankaj Bansal’s
case. Section 19 of PMLA and Sections 43A, 43B & 43C of UAPA were
quoted and considered. In Paragraph-16, it was observed that there was
no significant difference in the language employed in Section 19(1) of
PMLA & Section 43B(1) of the UAPA. It was observed that the
provision regarding the communication of the grounds of arrest to a
person arrested contained in Section 43B(1) of UAPA were verbatim as
that in Section 19(1) of the PMLA. It was observed that both the
provisions find their source in Article 22(1) of the Constitution of India.
It was further observed that applying the golden Rules of interpretation,
the provisions which lay down a very important Constitutional safeguard
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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.
Paragraphs-18 & 19 of the said judgment, in this context, are important
which read thus :
“18. We may note that the modified application of
Section 167 Code of Criminal Procedure 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 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.
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; oppose60 / 91
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WP-ST-24338-24-GROUP.odtthe 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.”
In Paragraph-21, it was further observed that mere filing
of the charge-sheet 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.
In Paragraph-29, it was further observed 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 cannot be
breached under any situation and non-compliance of this
constitutional requirement would lead to custody being rendered
illegal. It was further observed that the copy of the FIR was
provided to the learned Advocate for the Applicant for the first time
on 5.10.2023 and till the time of being deprived of liberty, no
communication had been made to the Appellant therein regarding
the grounds on which he was arrested.
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In Paragraph-37, it was explained that the reasons for arrest
were formal in nature; whereas the grounds of arrest would be
personal in nature and specific to the person arrested.
. In Paragraph-49 it was observed thus :
“49. From the detailed analysis made above, there is no
hesitation in the mind of the Court to reach to a
conclusion that the copy of the remand application in the
purported exercise of communication of the grounds of
arrest in writing was not provided to the Appellant –
Accused 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.”
Thus, it can be seen that the Hon’ble Supreme Court had
specifically considered the provisions of arrest under Sections 43A,
43B and 43C of the UAPA in comparison with the similar provisions
under PMLA; and in Paragraph-49 it was also observed that copy of
the remand application was not provided to the arrested Appellant
in that case before passing of the remand order. The Hon’ble
Supreme Court specifically considered the provisions of arrest
under PMLA and UAPA. The discussion was in respect of procedure
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of arrest under UAPA. The investigating agency was exercising the
power under UAPA. Therefore, the procedure to effect arrest under
UAPA was required to be followed notwithstanding the fact that
even offences under IPC formed part of that case. The special
power and procedure under UAPA was considered. In the cases
involving offences only under IPC, the power and procedure for
arrest under Cr.P.C. will have to be seen. Even under Section 5 of
Cr.P.C.. when a special statute operates for a particular procedure
then the procedure under that Special Statute will have to operate.
Hence to effect arrest involving the offences under UAPA, the
procedure for arrest under UAPA would apply notwithstanding the
fact that some of the IPC Sections are also applied. In that context,
the observations of Prabir Purkayastha‘s case will have to be seen.
Hence even if some provisions of IPC are applied since the
procedure for arrest is exercised under UAPA in that case, that
procedure will prevail over Cr.P.C.. But if the offence is only under
IPC, then the procedure under Cr.P.C. is applicable.
49. In Mahesh Naik‘s case the Division Bench of this Court
relied on the judgment in Prabir Purkayastha to observe that even
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for the offences only under IPC, the requirement of giving grounds
of arrest in writing had to be followed. In this context, it would be
advantageous to refer to the judgment of a Single Judge Bench of
the High Court of Karnataka in the case of John Moses D.. In this
case the notice under Section 41A of Cr.P.C. was issued to the
Petitioner. When he appeared before the investigating officer he
was arrested. The contention was raised on his behalf that the
notice of arrest would not suffice and what should be made known
to the Petitioner was the grounds of arrest.
The High Court of Karnataka considered the judgments of
Pankaj Bansal, Prabir Purkayastha and also the judgment in the case
of Arvind Kejriwal Vs. Central Bureau of Investigation 28. The learned
Judge had considered this issue in the context of offences under the
Indian Penal Code and the Karnataka Control of Organized Crimes
Act, 2000 (KCOCA). In Paragraph-11 of this case, it was observed
that in all those cases the Apex Court was considering the purport
and importance of the UAPA and PMLA. In Paragraph-13 onwards,
the Karnataka High Court considered as to whether interpretation
28 Decided on 12.7.2024 in Criminal Appeal No.2493/2024 [Hon’ble Supreme
Court]
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of the Apex Court should be stretched to the offences under the IPC
or any other Penal Law for that matter. After that Section 50 of
Cr.P.C. was quoted and various other judgments were considered.
The important observations are made in Paragraphs-15 & 16, which
read thus :
“15. The Police Stations, in the country are close to
20,000, arrests happen day in and day out. If grounds
of arrest is to be informed, as is held by the Apex
Court in PANKAJ BANSAL, PRABIR PURKAYASTHA
and ARVIND KEJRIWAL in every arrest on any
cognizable offence, it would undoubtedly open a
Pandora’s box, of interpretation of what could be the
grounds of arrest, and mushroom huge litigation
before the constitutional Courts.
16. The Apex Court holds it mandatory in the aforesaid
three cases, owing to the fact that enlargement of an
accused for the offences under the UAPA and PMLA
on grant of bail, is extremely limited. The burden to
prove that he is not guilty begins at the threshold. It is
in fact a reverse burden on the accused. It is,
therefore, in such cases the grounds of arrest should
be informed to the accused. In the case, before the
Apex Court, the arrest memo did not contain any
grounds of arrest and it was blatant violation of the
statute and the Constitution. Therefore, interpretation
that has stood the test of time, qua Section 50 of the65 / 91
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WP-ST-24338-24-GROUP.odtCr.P.C., of information of grounds of arrest to the
accused is what is required to be followed even in the
case at hand as the offences are under the IPC and
KCOCA, both of them would not mandate divergence
of grounds of arrest except as found in Section 50 of
Cr.P.C. What is informed to the petitioner in the case
at hand is information of arrest. Cr.P.C. mandates that
the accused should be informed of the grounds of
arrest. In my considered view, the information of
grounds of arrest as is indicated to the petitioner in the
case at hand, would suffice and it would not vitiate the
arrest and result in enlargement on grant of bail or
interim bail.”
The learned Judge referred to the judgment of the
Hon’ble Supreme Court in the case of Haryana Financial Corporation
Vs. Jagdamba Oil Mills29 wherein it was observed that the Courts
should not place reliance on decisions without discussing as to
how the factual situation fits in with the fact situation of the
decision on which reliance is placed. Observations of Courts are
not to be read as Euclid’s theorems nor as provisions of the statute.
These observations must be read in the context in which they
appear. Finally, the learned Judge held that what would
29 (2002) 3 SCC 496
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unmistakably emerge is what was ingrained in the Cr.P.C., qua
Section 50 should necessarily be followed and the information of
grounds of arrest in the manner in which the Apex Court has held
in Pankaj Bansal, Prabir Purkayastha or even Arvind Kejriwal would
not become applicable to the offence under the KCOCA or the IPC
or any arrest under any penal law except in cases of prevention of
detention. It was also made clear that Section 50 of Cr.P.C. must
necessarily be followed and information or grounds of arrest must
necessarily be indicated to every accused who is to be arrested
under the general law. If the arrest was under the PMLA or UAPA
then what was laid down by the Hon’ble Supreme Court in those
cases would straight away become applicable and non-divulgence
would vitiate the arrest.
50. In the subsequent judgment of Arvind Kejriwal the
Hon’ble Supreme Court referred to the judgment in the case of
Vijay Madanlal Choudhary. In Paragraph-23 it was observed that the
PMLA, a special legislation for the offence of money laundering
creates a unique mechanism for inquiry/investigation into the
offence. An analogy cannot be drawn with the provisions of Cr.P.C.
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In Paragraph-40, the Hon’ble Supreme Court has
observed that arrest under Section 41 of Cr.P.C. can be made on the
grounds mentioned in clauses (a) to (i) of Section 41(1) of Cr.P.C..
The grounds mentioned in Section 41 are different from the
juridical preconditions for exercise of power of arrest under Section
19(1) of the PMLA. Section 19(1) conditions are more rigid and
restrictive. As such the two provisions cannot be equated. The
legislature has deliberately avoided reference to the grounds
mentioned in Section 41 and considered it appropriate to impose
strict and stringent conditions that act as a safeguard.
It was further observed in Paragraph-41 that the power to
arrest under Section 19(1) was not for the purpose of
investigation. Arrest can and should wait, and the power in terms
of Section 19(1) of the PMLA can be exercised only when the
material with the designated officer enables them to form an
opinion, by recording reasons in writing that the arrestee is guilty.
In Paragraph-42, it was further elaborated that Section
439 of Cr.P.C. does not impose statutory restrictions, except under
Section 437(3) when applicable, on the court’s power to grant bail.
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However, Section 45 of the PMLA prescribes specific fetters in
addition to the stipulations under the Code.
Thus, the observations of the Hon’ble Supreme Court
clearly show that there is a difference between the provisions under
Cr.P.C. and under the PMLA regarding the procedure for arresting a
person. It was observed that the provisions from PMLA and Cr.P.C.
cannot be equated. Thus, in effect there are sufficient indications
that the observations in Pankaj Bansal‘s, case which are in relation
to PMLA, would not be applicable to the provisions of the Cr.P.C..
Prabir Purkayastha’s case relied on the observations in Pankaj Bansal
and on the similarities between the PMLA and UAPA to apply the
ratio in Pankaj Bansal to the procedure to arrest under UAPA.
51. The Division Bench of this Court in Mahesh Naik‘s case has
referred to the observations in Paragraph-19 of Prabir Purkayastha’s
case to apply them to the offences under IPC. However, as
discussed earlier, there is a difference in the procedure to arrest
under UAPA and under Cr.P.C..
52. The same Division Bench of this Court in the case of Mihir
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Shah however carved out an exception and even though the
grounds of arrest were not furnished to the arrested accused in that
case in writing it was not held that the arrest was illegal. There is,
thus, direct conflict in the observations of the same Division Bench
in the case of Mahesh Naik and Mihir Shah. In the case of Mihir
Shah one of the accused was caught with the car which had the
struck a motorcycle at a high speed. According to the prosecution
case, the car was driven by Mihir Shah but he left the car after
some time and absconded. He was subsequently arrested. In that
case it was held that the accused Mihir Shah was aware as to why
he was being arrested and, therefore, the grounds of arrest not
having been furnished in writing was not held to be a ground for
declaring his arrest as illegal. In that case it was observed that
while focusing on the rights of the accused, the Courts cannot lose
sight of the victim. It was further observed that, for too long, the
victims of crimes have been the forgotten persons in a criminal
justice system. Crime is not a problem of the victim, since the
victim did not create it. For considerable time, what the system
offered to the victim was only sympathy, but with the introduction
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of discipline of ‘victimology’ the concept has gained momentum and
found its place in the existing Cr.P.C.. We fully agree with the
sentiments expressed and observations made by the Division Bench
in the case of Mihir Shah. These observations are in direct
contrast/conflict with the ratio expressed by the Division Bench in
the case of Mahesh Naik and, therefore, there is a necessity to refer
the issue to a Larger Bench. In our opinion, Section 50 of Cr.P.C.
has to operate uniformly in all cases because it does not leave scope
for discretion to the Court to consider the circumstances in which
the accused is arrested or the gravity of the offence.
53. In this context, it would be advantageous to reproduce
the observations of the Hon’ble Supreme Court in respect of rights
of the victims vis-a-vis Article 21 of the Constitution of India.
54. It is well settled that Article 21 offers protection not only
to the person who is being arrested but also to the victim to live the
life of dignity.
55. Therefore, in the heinous cases like those involving the
offence of rape or heinous sexual assault under POCSO and even
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families of the victims of murder deserve protection under Article
21 of the Constitution of India.
56. The Hon’ble Supreme Court has held that right to life
contained in Article 21 is also available to the victims. The Hon’ble
Supreme Court in the case of Bodhisattwa Gautam Vs. Subhra
Chakraborty (Ms)30 has observed in the context of the offence of
rape as follows :
“….. Rape is, therefore, the most hated crime. It is a crime
against basic human rights and is also violative of the
victim’s most cherished of the Fundamental Rights,
namely, the Right to Life contained in Article 21″
57. The accused has certain rights, as discussed earlier.
Similarly the victims also have their own rights. In cases involving
heinous crimes like rape, murder, those under POCSO, MCOCA,
NDPS, the victims and even the society are the sufferer. The victims
do not have any control over the investigation and the investigating
officers’ efficiency or inefficiency. Therefore, if an accused is
released on the ground of non-furnishing of the grounds of arrest in
writing if required under Section 50 of Cr.P.C. that would cause
30 (1996) 1 SCC 490
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serious prejudice to the victims. Such lapse can be attributed to
various factors viz. inefficiency, lack of awareness etc.. In that case,
the consequences would be causing serious prejudice to the victims.
In a given case, the investigating agency may have material in their
possession that propensity of the accused indicated that he is likely
to commit a similar offence, and that would be a serious threat to
the security and safety of the potential victims in the offences like
rape, under POCSO etc.. If an accused is released on that ground
then there could be serious threat to the witnesses also. Therefore,
there is need to strike a balance between the rights of the victims
and the rights of the accused. There is also a possibility of
destruction of evidence, threatening of witnesses etc.. Merely
imposing conditions in these cases may not suffice. On the other
hand, when the bail applications are considered, then looking at
the background of the case, the Court would exercise jurisdiction in
bail matters taking into account all the factors including merits of
the matter; which in the cases of violation of alleged rights of the
accused under Section 50 of Cr.P.C. would not be possible for the
Court to exercise.
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58. In this context, we have seriously considered the
arguments advanced by learned Advocate General about re-arrest
of the accused who is released with or without bail bonds on the
ground of alleged non-compliance of the provisions of Section 50 of
Cr.P.C. for not giving the grounds of arrest in writing. In this
context, Shri Bhuta could not point out any embargo or bar upon
such re-arrest. Shri Amit Desai, however, submitted that once the
accused is released on that ground, re-arrest would violate the
protection of the accused under Article 21 of the Constitution of
India. The State should not be given a second chance. In this
connection, we are inclined to agree with the learned Advocate
General that there is no bar in re-arresting the persons who are
released for non-furnishing the grounds of arrest in writing. What
the accused are claiming in this situation, is that, they were
arrested in violation to the provisions of Cr.P.C. and it infringes their
constitutional right under Article 21 but if they are released on that
ground and thereafter if the grounds of arrest are supplied to them,
they cannot have any grievance. The purpose behind these
provisions is to make the accused aware as to why he was arrested
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and thereafter enable him to defend himself. Leaving aside the
issue whether such ground should be communicated orally or
should be given in writing for the time being; if on the ground of
non-communication they are released and if thereafter the grounds
are furnished as per the requirement; then the accused cannot have
any grievance, that they were not aware as to why they were
arrested. From that point onward, the procedure for remand can
be followed and the shortcoming of non-compliance of the
provision is wiped out. In that context, reference can be made to
the case of Kavita Manikikar. In that case, the Petitioner before the
Court was a lady. She was released because she was arrested after
sun-set for breach of Section 46(4) of Cr.P.C. Having held her arrest
illegal, the Division Bench of this Court went on to observe that
considering the seriousness of the allegations, she could be re-
arrested after following due procedure of law. The same course
can be adopted in the cases where the investigating agency wants
to re-arrest the accused if they are released for non-compliance of
Section 50 of Cr.P.C..
59. As discussed earlier, the cases of Pankaj Bansal, Ram
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Kishor Arora and Prabir Purkayastha deal with the provisions of
PMLA and UAPA specifically as mentioned earlier. As against that the
Hon’ble Supreme Court in the case of Arnesh Kumar and Satendra
Kumar Antil extensively dealt with the issue and procedure of arrest of
persons under Cr.P.C. and the safeguards provided under Cr.P.C..
60. As we have discussed earlier, the Hon’ble Supreme Court
had considered the provisions of PMLA and UAPA in the
aforementioned judgments of Pankaj Bansal, Prabir Purkayastha,
Ram Kishor Arora and Arvind Kejariwal. The question of necessity to
arrest and power to arrest and the safeguards while effecting that
arrest specifically fell for consideration before the Hon’ble Supreme
Court in the case of Arnesh Kumar. In that case, Paragraphs-5 & 6
of the said judgment, are very important, which are as follows :
“5. Arrest brings humiliation, curtails freedom and cast
scars forever. Law makers know it so also the
police. There is a battle between the law makers
and the police and it seems that police has not
learnt its lesson; the lesson implicit and embodied
in CrPC. It has not come out of its colonial image
despite six decades of Independence, it is largely
considered as a tool of harassment, oppression and76 / 91
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WP-ST-24338-24-GROUP.odtsurely not considered a friend of public. The need
for caution in exercising the drastic power of arrest
has been emphasized time and again by Courts but
has not yielded desired result. Power to arrest
greatly contributes to its arrogance so also the
failure of the Magistracy to check it. Not only this,
the power of arrest is one of the lucrative sources
of police corruption. The attitude to arrest first and
then proceed with the rest is despicable. It has
become a handy tool to the police officers who lack
sensitivity or act with oblique motive.
6. Law Commissions, Police Commissions and this
Court in a large number of judgments emphasized
the need to maintain a balance between individual
liberty and societal order while exercising the
power of arrest. Police officers make arrest as they
believe that they possess the power to do so. As the
arrest curtails freedom, brings humiliation and casts
scars forever, we feel differently. We believe that
no arrest should be made only because the offence
is non-bailable and cognizable and therefore,
lawful for the police officers to do so. The
existence of the power to arrest is one thing, the
justification for the exercise of it is quite another.
Apart from the power to arrest, the police officers
must be able to justify the reasons thereof. No
arrest can be made in a routine manner on a mere
allegation of commission of an offence made77 / 91
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WP-ST-24338-24-GROUP.odtagainst a person. It would be prudent and wise for a
police officer that no arrest is made without a
reasonable satisfaction reached after some
investigation as to the genuineness of the
allegation. Despite this legal position, the
legislature did not find any improvement. Numbers
of arrest have not decreased. Ultimately, Parliament
had to intervene and on the recommendation of the
177th Report of the Law Commission submitted in
the year 2001, Section 41 of the Code of Criminal
Procedure (for short “CrPC“), in the present form
came to be enacted. It is interesting to note that
such a recommendation was made by the Law
Commission in its 152nd and 154th Report
submitted as back in the year 1994. The value of
the proportionality permeates the amendment
relating to arrest.”
Thus, the Hon’ble Supreme Court was considering the
comprehensive measures as far as the arrest under Cr.P.C. was
concerned. The safeguards were considered and there was a
reference made to Sections 41 and 41A of Cr.P.C.. In this entire
judgment, there is no reference made or requirement noted that the
grounds of arrest were required to be furnished in writing to the
accused at the time of his arrest.
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61. The Hon’ble Supreme Court followed Arnesh Kumar’s
judgment in the case of Satendra Kumar Antil. In addition, various
other provisions under CrP.C. were considered viz., Section 167
read with 57 and 60-A of Cr.P.C. and all the provisions for bail.
Certain directions were issued. Even in this judgment there was no
requirement laid down that the grounds of arrest had to be
furnished in writing to the accused at the time of his arrest. These
two judgments are directly on the subject of arrest of persons under
Cr.P.C..
REQUIREMENT OF ISSUANCE OF NOTICE UNDER SECTION 41A
Cr.P.C.:
62. The next question which requires consideration is
regarding necessity to issue a notice under Section 41A of Cr.P.C.
before effecting arrest. The arguments are advanced that the notice
under Section 41A is necessary before effecting arrest in all cases
and definitely for the cases involving offences punishable upto
seven years under Section 41A of Cr.P.C..
63. As mentioned earlier, the Division Bench in the case of
Abhijit Arjun Padale has taken a view in the case involving offence
under Section 384 and 506 of IPC, where the punishment is less
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than seven years it was necessary to issue a notice under Section
41A of Cr.P.C. and arrest effected without issuance of such notice
was held to be illegal. A reference was made to the judgment of
Arnesh Kumar by the Division Bench while deciding case of Abhijit
Padale. In this context, it is necessary to reproduce Paragraphs-11
and 12 of Arnesh Kumar, which read as under :
“11. Our endeavour in this judgment is to ensure that
police officers do not arrest accused unnecessarily
and Magistrate do not authorise detention casually
and mechanically. In order to ensure what we have
observed above, we give the following direction:
11.1. All the State Governments to instruct its police
officers not to automatically arrest when a case
Under Section 498-A IPC is registered but to
satisfy themselves about the necessity for arrest
under the parameters laid down above flowing
from Section 41 CrPC;
11.2. All police officers be provided with a check list
containing specified sub-clauses Under Section
41(1)(b)(ii);
11.3. The police officer shall forward the check list duly
filled and furnish the reasons and materials which
necessitated the arrest, while
forwarding/producing the accused before the
Magistrate for further detention;
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11.4. The Magistrate while authorising detention of the
accused shall peruse the report furnished by the
police officer in terms aforesaid and only after
recording its satisfaction, the Magistrate will
authorise detention;
11.5. The decision not to arrest an accused, be forwarded
to the Magistrate within two weeks from the date
of the institution of the case with a copy to the
Magistrate which may be extended by the
Superintendent of police of the district for the
reasons to be recorded in writing;
11.6. Notice of appearance in terms of Section 41A
CrPC be served on the accused within two weeks
from the date of institution of the case, which
may be extended by the Superintendent of Police
of the district for the reasons to be recorded in
writing;
11.7. Failure to comply with the directions aforesaid
shall apart from rendering the police officers
concerned liable for departmental action, they
shall also be liable to be punished for contempt of
court to be instituted before the High Court
having territorial jurisdiction.
11.8. Authorising detention without recording reasons as
aforesaid by the judicial Magistrate concerned
shall be liable for departmental action by the
appropriate High Court.
12. We hasten to add that the directions aforesaid shall
not only apply to the cases Under Section 498-A
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IPC or Section 4 of the Dowry Prohibition Act, the
case in hand, but also such cases where offence is
punishable with imprisonment for a term which may
be less than seven years or which may extend to
seven years; whether with or without fine.”
64. Arnesh Kumar’s judgment was followed in Satendra Kumar
Antil‘s case. Paragraphs-11 and 12 from the judgment of Arnesh
Kumar were specifically quoted in Satendra Kumar Antil‘s case.
Paragraph-11 of Arnesh Kumar judgment lays down the guidelines
and requirements which are to be followed by the police officers
and the Magistrates. There is a reference to Section 41(1)(b)(ii)
and the check-list provided under that provision. Paragraph-11.6
mentions that notice of appearance in terms of Section 41A be
served on the accused within two weeks from the date of institution
of the case. The question is whether the notice is required to be
issued under Section 41-A where the police officers want to arrest
the accused. There is a check list provided under Section 41(1)(b)
(ii) of Cr.P.C. when the police officer has reason to believe on the
basis of the complaint, information or suspicion that the person has
committed the offence. Section 41(1)(b) refers to the offences
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where the punishment may extend upto seven years with or
without fine. Section 41(1)(b)(i) requires that the police officer has
to have reason to believe that such person has committed an
offence and then he has to prepare the check-list mentioned in
Section 41(1)(b)(ii) of Cr.p.C. as to the reasons in writing for
making such arrest. The check-list includes necessity to prevent
such person from committing any further offence, for proper
investigation, for preventing destruction of evidence, for preventing
the accused to make any inducement to the witnesses and to
ensure his presence in the Court. There is an important proviso
under Section 41(1)(b)(ii), which reads thus :
“Provided that a police officer shall, in all cases where the
arrest of a person is not required under the provisions of
this sub-section, record the reasons in writing, for not
making the arrest.”
This would mean that even when the police officer is of
the opinion that the arrest of a person is not required he has to
record the reasons in writing for not making the arrest. After this
proviso, Section 41(1)(ba) upto 41(1)(i) lay down the different
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categories where such check list is not mentioned. In other words
for the offences punishable for more than seven years and other
circumstances where the offender is a proclaimed offender etc.,
preparation of check list is not necessary. Thus, Section 41(1)
differentiates between the offence punishable upto seven years and
the offences which are punishable for more than seven years. As a
safeguard, wherever the arrest is necessary for the offences
punishable upto 7 years, the police officer has to prepare a check
list in writing as to why the arrest is necessary.
Section 41A on the other hand refers to all cases. It does
not make any distinction between the offences punishable upto
seven years or the offences punishable for more than seven years.
Sub-section 1 of Section 41A starts with the following words :
“The police officer shall, in all cases where the arrest
of a person is not required under the provisions of
sub-section (1) of section 41, issue a notice ……..”
[Emphasis supplied].
The Section is very clear and it applies where the arrest
of a person is ‘not’ required. Only in those cases the notice under
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Section 41A is required to be issued to a person against whom a
reasonable complaint is made or credible information is received or
a reasonable suspicion exists that he has committed a cognizable
offence; then the police officer has to issue a notice calling upon
such a person to appear before such police officer. Therefore, this
requirement of issuance of notice is applicable where a reasonable
suspicion exists or credible information is available against such
person and yet the police officer does not want to arrest him then it
is the duty of the police officer to issue a notice to him. This
provisions serves two purposes, first it prevents unnecessary arrests
and secondly it aids in proper investigation. Therefore, this
provision cannot be stretched to mean that in all cases including
the offences punishable upto seven years, the notice has to be
issued if the police officers want to arrest a person. Hence it cannot
be said that serving of notice is a precondition of arrest of an
accused even if the police officer is of the opinion that the arrest is
required. On the contrary, such interpretation would defeat the
clear language of Section 41A of Cr.P.C.. The safeguard is
preparation of checklist if the offence is punishable upto seven
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years.
65. In fact, the Hon’ble Supreme Court in the judgments of
Arnesh Kumar and Santendra Kumar Antil have repeatedly held that
the provisions of Sections 41 & 41A are required to be complied
when the police officer wants to arrest a person. That also means
even for offences which are punishable for more than seven years,
the police officers do not have to arrest the accused when his
arrest is not necessary. In that case, the police officer has to issue a
notice to such person under Section 41A of Cr.P.C. asking him to
appear before him. Sub-section (3) of Section 41A further provides
that if such person complies with the notice then he shall not be
arrested unless the reasons to be recorded that the police officer is
of the opinion that he ought to be arrested. Again in this situation
the police officer is given an option to arrest such person but he has
to record his reasons for such an arrest.
Therefore in our opinion it is not the requirement of law
where the police officers want to arrest a person, they have to give
notice under Section 41A of Cr.P.C. to the accused. In fact when the
arrest of a person is not required, only then the notice is required to
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be issued. If it is to be held that in all cases before arrest and in
particular in the cases involving offences upto seven years, the
notice is required to be issued under Section 41A of Cr.P.C. then it
could be argued that once notice is issued it would mean that the
police officers did not want to arrest the accused which would run
contrary to the express provision of Section 41A of Cr.P.C..
The accused person on receiving such a notice, can easily
destroy the evidence, abscond or leave the country. It defeats the
purpose of effective investigation. This may affect the cases where
the offences are upto seven years of punishment viz. the offences
under Section 420 of IPC or under Section 406 of IPC involving
cheating or misappropriation of huge amounts wherein many
persons are cheated. This may affect the investor’s rights under the
MPID Act. If the accused is given sufficient time before arrest, he
can destroy the evidence or dispose of the property. In case of even
serious offences like MCOCA he is likely to threaten the witnesses
and in the cases of NDPS, the main offenders may get a hint. The
investigation in all such cases will be seriously affected. These are
the illustrative examples and certainly are not exhaustive list of
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offences where the investigation will be seriously hampered.
Therefore, we record our difference of opinion in respect of the
ratio of the judgment of a Division Bench of this Court in the case
of Abhijit Padale.
66. Based on the above discussion, in our opinion the proper
course for us is to refer these important questions for consideration
to a Larger Bench. The questions are formulated as follows :
(1) Whether the ratio of the decisions in Pankaj Bansal Vs.
Union of India 2023 SCC OnLine SC 1244, Ram Kishor
Arora Vs. Enforcement Directorate 2023 SCC OnLine 1682,
Prabir Purkayastha Vs. State (NCT of Delhi) 2024 SCC
OnLine 934, are applicable to Section 50 of the Code of
Criminal Procedure, 1973 and involving the offences
under the other statutes than Prevention of Money
Laundering Act, 2002 & Unlawful Activities
(Prevention) Act, 1967 ?
(2) Whether Section 50 of the Code of Criminal Procedure,
1973 mandates the furnishing of the grounds of arrest
in writing to the accused ?
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(3) If it is held that the communication of grounds of arrest
in writing is necessary under Section 50 of the Code of
Criminal Procedure Code, 1973, then
[i] Whether it has to be furnished at the time of arrest
or any time before consideration of the first remand
application ?
[ii] Whether the Court has discretion to consider such
necessity depending on the gravity of the offence or
circumstances in which the accused is arrested ?
[iii] Whether, in the given cases, the Court can consider
the prejudice caused to the accused for not
furnishing the grounds of arrest in writing ?
[iv] Before which forum the arrested person can raise his
grievance for his release on this ground ? Whether it
can be Magistrate’s Court granting remand, Sessions
Court, Single Judge of this Court exercising
jurisdiction in bail matters or before the Division
Bench exercising powers under Article 226 of the
Constitution of India ?
[v] For implementation of this mandate, what should be
the cut off date ? Whether it should be from the date
of the decision in Pankaj Bansal Vs. Union of India
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2023 SCC OnLine SC 1244 or from the date of
decision in Prabir Purkayastha Vs. State (NCT of Delhi)
2024 SCC OnLine 934 or from the date of decision in
Mahesh Pandurang Naik Vs. State of Maharashtra and
another decided on 18.7.2024 in Criminal Writ
Petition [Stamp] No.13835/2024.
(4) If it is held that oral communication under Section 50
of the Cr.P.C. is sufficient, then whether it can be
communicated within 24 hours of the arrest or at the
time of first Remand or it has to be at the time of
arrest.
(5) If a person is released for non-compliance of Section 50
of the Code of Criminal Procedure, 1973, can he be
arrested again after following due procedure after his
release ?
(6) Whether the notice under Section 41A of the Code of
Criminal Procedure, 1973, is required to be given before
arrest in all cases and in particular in the cases where
the offence is punishable upto seven years, when the
arrest of an accused is necessary ?
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67. Apart from these questions formulated for consideration
of a Larger Bench, we are of the opinion that some clear and
definite guidelines are required to be issued to the Courts of
Magistrates and to the investigating agencies to follow the
procedure of giving a remand report sufficiently in advance to the
arrested accused before his first remand application is considered
by the appropriate Court.
68. The Registry is directed to place this order before the
Hon’ble The Chief Justice for consideration for placing it before a
Larger Bench consisting of three or more Judges. The Registry shall
take such steps at the earliest considering that the issue raised in
these Petitions is in respect of alleged illegal detention of large
number of arrested accused.
(S.M. MODAK, J.) (SARANG V. KOTWAL, J.)
Deshmane (PS)
Digitally signed
by
PRADIPKUMAR
PRADIPKUMAR PRAKASHRAO
PRAKASHRAO DESHMANE
DESHMANE
Date:
2025.01.31
12:18:18 +0530
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