Yogesh S/O Ramesh Tonde vs The State Of Maharashtra Thr. Police … on 16 April, 2025

Bombay High Court

Yogesh S/O Ramesh Tonde vs The State Of Maharashtra Thr. Police … on 16 April, 2025

2025:BHC-NAG:3950

                                                                                       390 ba191.25
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                IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
                           NAGPUR BENCH, NAGPUR

                    CRIMINAL APPLICATION (BA) NO.191/2025
                             Yogesh s/o Ramesh Tonde
                                        ..vs..
         The State of Maharashtra, through PSO PS Janefal, Buldhana, Tahsil
                               and District Buldhana
        ...............................................................................................
        Office Notes, Office Memoranda of Coram,
        appearances, Court orders or directions                          Court's or Judge's Order
        and Registrar's orders
        ...............................................................................................

                     Shri S.V.Sirpurkar, Counsel for the Applicant.
                     Shri V.A.Thakare, Additional Public Prosecutor for the State.


                                  CORAM                     : URMILA JOSHI-PHALKE, J.

                                  CLOSED ON                 : 02/04/2025
                                  PRONOUNCED ON             : 16/04/2025

1. By this application, being moved under Section

483 of the Bhartiya Nagrik Suraksha Sanhita, 2023, the

applicant seeks regular bail in connection with Crime

No.204/2024 registered with the non-applicant/police

station for offences punishable under Sections 302 and 365

read with 34 of the Indian Penal Code.

2. The applicant came to be arrested on 10.7.2024

and since then he is in jail.

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3. The crime is registered on the basis of report

lodged by Jyoti Dilip Ingle, the wife of the deceased,

alleging that her husband was working as a “Money Rain

Pourer”. On 22.6.2024, at around 3:00 pm, he left the

house by informing her that he is travelling to Ahmednagar

for the work related to money rain accompanied by the

applicant and one Sandip Shewale, but he did not return

until 27.6.2024 and, therefore, she lodged missing report

27.6.2024. During enquiry of the missing report, it revealed

that her husband has left in “Swift Desire Car

MH-03/BH/1824 along with the applicant and Sheikh Sajid

Sheikh. They travelled to Shirdi and were waiting at Nashik

Fata. At around 7:00 pm, another car arrived with three

unknown individuals. The informant was informed by

Sandip Shewal, who was along with the deceased, that the

deceased informed that he is proceeding at Kokandhan for

the said money rain event. Thus, said Sandip and the

deceased proceeded in the vehicle. The applicant was also

along with them. At around 10:30 to 11:00 pm, when they

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reached near SJS Hospital, another four-wheeler

approached them and 4-5 persons got down from the

vehicle and assaulted her husband. They forcibly took him

in their vehicle and abducted him. Subsequently, the dead

body of the deceased was found at Rashin-Karjat and,

therefore, the offence was registered on the basis of the

report lodged by the wife of the deceased alleging against

the other co-accused.

4. During investigation, involvement of the

applicant revealed in the conspiracy and, therefore, he is

also arraigned as an accused.

5. Heard learned counsel Shri S.V.Sirpurkar for the

applicant and learned Additional Public Prosecutor Shri

V.A.Thakare for the State.

6. Learned counsel for the applicant submitted that

the entire case is based on the circumstantial evidence. Not

a single circumstance is on record to prima facie establish

the involvement of the applicant in the conspiracy. Though

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the applicant, allegedly, went along with the deceased,

investigation papers show that from Kopargaon the

deceased was taken by the unknown persons and,

thereafter, his dead body was found. Thus, as far as

involvement of the applicant is concerned, there is no

sufficient material to connect him with the alleged offence.

Now, investigation is completed and chargesheet is filed.

7. Learned counsel for the applicant also raised

ground of non-compliance of Section 50 of the CrPC and

violation of Article 22(1) of the Constitution of India. He,

therefore, prays that the applicant be released on bail.

8. Per contra, learned Additional Public Prosecutor

for the State submitted that the deceased and one Amol

Rajput were involved in the activity like money rain and

some dispute arose between the deceased and said Amol on

account of money transaction. Therefore, said Amol

hatched conspiracy with co-accused Sandip, the present

applicant, and Sheikh Sajid Sheikh. As per the conspiracy,

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the deceased was taken by the applicant and other co-

accused at Kopargaon whereat they are contacted by the

persons who came in another vehicle. Thereafter, the

deceased was taken at Kokandhan for the event of money

rain. At Kokandhan, in one vehicle, four persons came there

and assaulted the deceased and the deceased was taken in

the vehicle and, thereafter, the dead body of the deceased

was found. Thus, involvement of the applicant revealed in

the conspiracy. He invited my attention towards station

diary entry No.027 and submitted that the grounds of arrest

were communicated to the applicant. He also invited my

attention towards the notice issued to the applicant and

submitted that this notice also shows that the applicant was

informed as to the grounds of his arrest. Thus, there is a

compliance of Section 50 of the CrPC. He also placed on

record extract of the register wherein entry was taken as to

the compliance of the said Section. Thus, he submitted that

there is no violation of Article 22(1) of the Constitution.

Therefore, the application deserves to be rejected. He also

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invited my attention towards statements of the witnesses

and submitted that the witnesses have seen the applicant

along with the deceased proceeding in Swift Desire Car MH-

03/BH/1824. Thereafter, the deceased went along with the

present applicant. The statements of witnesses further show

that all the accused were communicating with each other

and the CDRs show the calls between them. The dead body

of the deceased was found at Rashin-Karjat. There was

communication between the deceased and the co-accused

also. Thus, the involvement of the applicant reveals from

the investigation papers. In view of that, the application

deserves to be rejected.

9. After hearing both the sides and perusing the

investigation papers, it reveals that the applicant was lastly

seen in the company of the deceased. The statements of the

witnesses disclose that the deceased and the applicant along

with other co-accused left to proceed to Ahmednagar. They

went at Kopargaon. At Kopargaon, some persons

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approached the deceased and the deceased and the

applicant and other co-accused went at Kokandhan for

money rain event. Thereafter, some persons approached the

deceased at Kokandhan and assaulted him and taken him

and, thereafter, his dead body was found. The statements of

witnesses further reveal that there was enmity between

Amol and the deceased on account of money transaction.

On the say of co-accused Amol, the deceased was taken in a

vehicle by the applicant and Sheikh Sajid. After they left

with the deceased, there were continuous communications

with co-accused Amol and Santosh; Amol and Mahadev; the

deceased and co-accused Amol; and Amol and the applicant.

Thus, there is a sufficient material to connect the applicant

with the alleged offence.

10. As far as merits of the matter is concerned,

sufficient material is collected during the investigation to

show involvement of the applicant.

11. The statements of the witnesses and CDRs

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sufficiently show the involvement of the applicant in

conspiracy.

12. Admittedly, direct evidence would not be

available as far as conspiracy is concerned. The

circumstances show the applicant and other co-accused

went with the deceased, communication between the co-

accused and the applicant and other co-accused, statements

of the witnesses showing the meeting of the applicant and

other co-accused prior to the incident, and CDRs etc..

13. Thus, merits of the mater sufficiently show the

involvement of the applicant in the alleged incident.

14. The another ground raised in the application is

that there is non-compliance of Section 50 of the CrPC and

Article 22(1) of the Constitution.

15. Considering the submissions made by both the

parties, it is necessary to refer the relevant provisions.

16. Section 41 of the Code deals with when police

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may arrest without warrant. Sub section (1) of Section 41

of the Code (Clause (c) of sub-section (1) of Section 35 of

the BNSS Act) states about when police officer may without

an order from a Magistrate and without a warrant, arrest

any person subject to conditions enumerated therein.

Thus, it states that a police officer can arrest a

person after satisfying himself when an offence punishable

with imprisonment for more than 7 years is alleged. The

police officer can arrest subject to condition mentioned in

Section 35(1)(b) of the BNSS Act are satisfied.

17. Article 22(1) of the Constitution reads as under:

“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.”

18. Thus clause (1) of Article 22 of the Constitution

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states that no person shall be detained in custody without

being informed as to the grounds of such arrest.

19. Section 50 of the Code (Section 47 of the BNSS

Act) deals with persons arrested to be informed of grounds

of arrest and of right to bail which reads as under:

“Section 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 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.

20. Thus, Section 41 of the Code (Section 35 of the

BNSS Act), Section 50 of the Code (Section 47 of the BNSS

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Act) and Article 22 of the Constitution are relevant

provisions.

21. Learned counsel for the applicant vehemently

submitted that there is non compliance of Section 50 of the

CrPC as grounds of arrest are not communicated to the

applicant. Whereas, the prosecution placed reliance on the

notice issued to the applicant and station diary entry. Entry

No.27 dated 10.7.2024 shows that the applicant was

arrested and referred for the medical examination and,

thereafter, entry was taken in register which is maintained

in view of directions of the Hon’ble Apex Court. Notice was

also issued to the applicant under Section 47(1)(2) of the

BNS (Section 50 of the CrPC). Recital of the said notice

shows that the offence is registered against the applicant

vide Crime No.204/2024 on 9.7.2024 and he is arrested in

the said crime. As to his arrest, information is given to his

mother. The entry is also taken in the register which is

maintained in view of the directions of the Hon’ble Apex

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Court as to the compliance of Section 50 of the CrPC.

22. Thus, learned Additional Public Prosecutor for

the State submitted that compliance under Section 50 of the

CrPC and Article 22(1) of the Constitution is complied with

before arrest of the applicant.

23. Learned counsel for the applicant placed reliance

on the decision in the case of Vihan Kumar vs. State of

Haryana and anr, Special Leave Petition (Cri.)

No.13320/2024 decided on 7.2.2025. He also placed

reliance on on the decision in the case of Prabir Purkayastha

vs. State (NCT of Delhi), reported in (2024)8 SCC 254

wherein the Hon’ble Apex Court by referring the relevant

provisions and relying upon the decision in the case of

Harikisan vs. State of Maharashtra and ors, reported in 1962

SCC OnLine SC 117 held that the communication of the

grounds of detention to the detenue in writing and in a

language which he understands is imperative and essential

to provide an opportunity to detenue of making an effective

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representation against the detention and in case, such

communication is not made, the order of detention would

stand vitiated as the guarantee under Article 22(5) of the

Constitution was violated.

By referring the decision in the case of Lallubhai

Jogobhai Patel vs. Union of India and ors, reported in

(1981)2 SCC 427, the Hon’ble Apex Court observed that

“…. ‘Communicate’ is a strong word. It means that sufficient

knowledge of the basic facts constituting the “grounds”

should be imparted effectively and fully to the detenu in

writing in a language which he understands. The whole

purpose of communicating the “ground” to the detenu is to

enable him to make a purposeful and effective

representation. If the “grounds” are only verbally explained

to the detenu and nothing in writing is left with him, in a

language which he understands, then that purpose is not

served, and the constitutional mandate in Article 22(5) is

infringed…..”

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The Hon’ble Apex Court further held that, “from

a holistic reading of various judgments pertaining to the law

of preventive detention including the Constitution Bench

decision of this Court in Harikisan supra , wherein, the

provisions of Article 22(5) of the Constitution of India have

been interpreted, we find that it has been the consistent

view of this Court that the grounds on which the liberty of a

citizen is curtailed, must be communicated in writing so as

to enable him to seek remedial measures against the

deprivation of liberty.

It is further held that the language used in Article

22(1) and Article 22(5) of the Constitution of India

regarding the communication of the grounds is exactly the

identical. Neither of the constitutional provisions require

that the ‘grounds’ of “arrest” or “detention”, as the case may

be, must be communicated in writing. Thus, interpretation

to this important facet of the fundamental right as made by

the Constitution Bench while examining the scope of Article

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22(5) of the Constitution of India would ipso facto apply to

Article 22(1) of the Constitution of India insofar the

requirement to communicate the grounds of arrest is

concerned.

24. The decision in the case of Prabir Purkayastha vs.

State (NCT of Delhi) supra further shows that the provisions

of Article 22(1) have already been interpreted by this Court

in Pankaj Bansal vs. Union of India and ors, reported in

2023 SCC OnLine SC 1244 laying down beyond the pale of

doubt that the grounds of arrest must be communicated in

writing to the person arrested of an offence at the earliest.

Hence, the fervent plea of learned ASG that there was no

requirement under law to communicate the grounds of

arrest in writing to the accused appellant is noted to be

rejected.

In paragraph No.48 in the decision in the case

Prabir Purkayastha vs. State (NCT of Delhi) supra it is

specifically observed that there is a significant difference in

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the phrase ‘reasons for arrest’ and ‘grounds of arrest’. The

‘reasons for arrest’ as indicated in the arrest memo are

purely formal parameters, viz., to prevent the accused

person from committing any further offence; for proper

investigation of the offence; to prevent the accused person

from causing the evidence of the offence to disappear or

tampering with such evidence in any manner; to prevent the

arrested person for making inducement, threat or promise to

any person acquainted with the facts of the case so as to

dissuade him from disclosing such facts to the Court or to

the Investigating Officer. These reasons would commonly

apply to any person arrested on charge of a crime whereas

the ‘grounds of arrest’ would be required to contain all such

details in hand of the Investigating Officer which

necessitated the arrest of the accused. Simultaneously, the

grounds of arrest informed in writing must convey to the

arrested accused all basic facts on which he was being

arrested so as to provide him an opportunity of defending

himself against custodial remand and to seek bail. Thus, the

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‘grounds of arrest’ would invariably be personal to the

accused and cannot be equated with the ‘reasons of arrest’

which are general in nature.

25. The Hon’ble Apex Court in the case of Vihan

Kumar vs. State of Haryana and anr supra also while

considering Section 50 of the Code and Article 22(1) of the

Constitution held that view taken in the cases of Pankaj

Bansal vs. Union of India and ors supra was reiterated by

this Court in the case of Prabir Purkayastha supra. The

Hon’ble Apex Court further referred the decision in the case

of Lallubhai Jogobhai Patel vs. Union of India and ors supra.

The Hon’ble Apex Court by referring various decision

observed that, “compliance can be made by communicating

sufficient knowledge of the basic facts constituting the

grounds of arrest to the person arrested. The grounds

should be effectively and fully communicated to the arrestee

in the manner in which he will fully understand the same.

Therefore, it follows that the grounds of arrest must be

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informed in a language which the arrestee understands.

That is how, in the case of Pankaj Bansal supra, this Court

held that the mode of conveying the grounds of arrest must

necessarily be meaningful so as to serve the intended

purpose. However, under Article 22(1), there is no

requirement of communicating the grounds of arrest in

writing. Article 22(1) also incorporates the right of every

person arrested to consult an advocate of his choice and the

right to be defended by an advocate. If the grounds of arrest

are not communicated to the arrestee, as soon as may be, he

will not be able to effectively exercise the right to consult an

advocate. This requirement incorporated in Article 22(1)

also ensures that the grounds for arresting the person

without a warrant exist. Once a person is arrested, his right

to liberty under Article 21 is curtailed. When such an

important fundamental right is curtailed, it is necessary that

the person concerned must understand on what grounds he

has been arrested. That is why the mode of conveying

information of the grounds must be meaningful so as to

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serve the objects stated above.”

In paragraph No.14 it is further held “thus, the

requirement of informing the person arrested of the grounds

of arrest is not a formality but a mandatory constitutional

requirement. Article 22 is included in Part III of the

Constitution under the heading of Fundamental Rights.

Thus, it is the fundamental right of every person arrested

and detained in custody to be informed of the grounds of

arrest as soon as possible. If the grounds of arrest are not

informed as soon as may be after the arrest, it would

amount to a violation of the fundamental right of the

arrestee guaranteed under Article 22 (1). It will also

amount to depriving the arrestee of his liberty. The reason is

that, as provided in Article 22, no person can be deprived of

his liberty except in accordance with the procedure

established by law. The procedure established by law also

includes what is provided in Article 22(1). Therefore, when

a person is arrested without a warrant, and the grounds of

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arrest are not informed to him, as soon as may be, after the

arrest, it will amount to a violation of his fundamental right

guaranteed under Article 21 as well. In a given case, if the

mandate of Article 22 is not followed while arresting a

person or after arresting a person, it will also violate

fundamental right to liberty guaranteed under Article 22,

and the arrest will be rendered illegal. On the failure to

comply with the requirement of informing grounds of arrest

as soon as may be after the arrest, the arrest is vitiated.

Once the arrest is held to be vitiated, the person arrested

cannot remain in custody even for a second.”

The Hon’ble Apex Court, therefore, concludes as

follows:

a) The requirement of informing a person

arrested of grounds of arrest is a mandatory

requirement of Article 22(1);

b) The information of the grounds of arrest must

be provided to the arrested person in such a

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manner that sufficient knowledge of the basic

facts constituting the grounds is imparted and

communicated to the arrested person effectively

in the language which he understands. The mode

and method of communication must be such that

the object of the constitutional safeguard is

achieved;

c) When arrested accused alleges non-compliance

with the requirements of Article 22(1), the

burden will always be on the Investigating

Officer/Agency to prove compliance with the

requirements of Article 22(1);

d) Non-compliance with Article 22(1) will be a

violation of the fundamental rights of the accused

guaranteed by the said Article. Moreover, it will

amount to a violation of the right to personal

liberty guaranteed by Article 21 of the

Constitution. Therefore, non-compliance with the

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requirements of Article 22(1) vitiates the arrest

of the accused. Hence, further orders passed by a

criminal court of remand are also vitiated.

Needless to add that it will not vitiate the

investigation, charge sheet and trial. But, at the

same time, filing of chargesheet will not validate

a breach of constitutional mandate under Article

22(1);

e) When an arrested person is produced before a

Judicial Magistrate for remand, it is the duty of

the Magistrate to ascertain whether compliance

with Article 22(1) and other mandatory

safeguards has been made; and

f) When a violation of Article 22(1) is

established, it is the duty of the court to forthwith

order the release of the accused. That will be a

ground to grant bail even if statutory restrictions

on the grant of bail exist. The statutory

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restrictions do not affect the power of the court

to grant bail when the violation of Articles 21 and

22 of the Constitution is established.

26. Thus, in view of the judgment in the case of

Vihan Kumar vs. State of Haryana and anr supra, statutory

compliance under Section 50 as well as Article 22(1) of the

Constitution is mandatory.

27. These aspects are further dealt with by the Three

Judge Bench of the Hon’ble Apex Court while considering

Section 19 of the Prevention of Money Laundering Act, 2002

in the case of Vijay Madanlal Choudhary & ors vs. Union of

India and ors, reported in 2022 SCC Online SC 929 wherein

it is observed that, “so long as the person has been informed

about grounds of his arrest that is sufficient compliance of

mandate of Article 22(1) of the Constitution. Moreover, the

arrested person before being produced before the Special

Court within twenty-four hours or for that purposes of

remand on each occasion, the Court is free to look into the

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relevant records made available by the Authority about the

involvement of the arrested person in the offence of money-

laundering.”

28. In the case of Ram Kishor Arora vs. Directorate of

Enforcement, reported in AIR 2024 SC 220, while

considering the decisions in Vijay Madanlal Choudhary &

ors vs. Union of India and ors supra and Pankaj Bansal

supra, highlighting the utmost importance of doctrine of

binding precedent in the administration of judicial system, it

is observed that, “in view of the aforestated proposition of

law propounded by the Constitution Benches, there remains

no shadow of doubt that the law laid down by the Three-

Judge bench in Vijay Madanlal Choudhary supra that

Section 19(1) of the PMLA has a reasonable nexus with the

purposes and objects sought to be achieved by the PML Act

and that the said provision is also compliance with the

mandate of Article 21(1) of the Constitution of India, any

observation made or any finding recorded by the Division

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Bench of lesser number of Judges contrary to the said ratio

laid down in Vijay Madanlal Choudhary supra would be not

in consonance with the jurisprudential wisdom expounded

by the Constitution Benches in cases referred above. The

Three-Judge Bench in Vijay Madanlal Choudhary case supra

having already examined in detail the constitutional validity

of Section 19 of PMLA on the touchstone of Article 22(1)

and upheld the same, it holds the field as on the date.

The Hon’ble Apex Court in Ram Kishor Arora

supra in paragraph No.22 further observed that in Vijay

Madanlal Choudhary case supra, it has been categorically

held that so long as the person has been informed about the

grounds of his arrest, that is sufficient compliance of

mandate of Article 22(1) of the Constitution. It is also

observed that the arrested person before being produced

before the Special Court within twenty-four hours or for that

purposes of remand on each occasion, the Court is free to

look into the relevant records made available by the

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Authority about the involvement of the arrested person in

the offence of money-laundering. Therefore, in our opinion

the person asserted, 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.

29. While concluding, the Hon’ble Apex Court in the

case of Ram Kishor Arora supra held that since the

appellant was indisputably informed about the grounds of

arrest and he having also put his signature and the

endorsement on the said document of having been

informed, there was due compliance of the provisions

contained in Section 19 of PMLA and his arrest could

neither be said to be violative of the said provision nor of

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Article 22(1) of the Constitution of India.

30. In the light of the above observations, if the facts

of the present case are taken into consideration, the notice is

given to the applicant disclosing the name of the applicant,

crime number, and other details which is signed by the

applicant. The station diary entry shows that he was

informed as to his arrest and entry was taken in the

concerned register.

31. Thus, in view of the observations of the Hon’ble

Apex Court in the case of Vihan Kumar vs. State of Haryana

and anr supra wherein it is observed that if the police want

to prove communication of the grounds of arrest only based

on a diary entry, it is necessary to incorporate those grounds

of arrest in the diary entry or any other document. The

grounds of arrest must exist before the same are informed.

32. In view of the above observations, in the present

case, the notice issued to the applicant shows the reason as

to the arrest of the applicant informing the crime number,

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the provisions of law, which are applied against him, and

the information that his relatives are informed. He also puts

his signature on the said notice.

33. In view of the requirement of informing the

person arrested, which is held by the Hon’ble Apex Court in

the case of Vihan Kumar vs. State of Haryana and anr supra,

the same is not a formality, but a mandatory constitutional

requirements. It further states that the mode of conveying

information of the grounds of arrest must necessarily be

meaningful so as to serve the intended purpose. The Hon’ble

Apex Court further clarified that under Article 22(1) of the

Constitution, there is no requirement of communicating the

grounds of arrest in writing. The purpose of Article 22(1) of

the Constitution is that the right of every person arrested to

consult an advocate of his choice and the right to be

defended by an advocate. The said purpose appears to be

fulfilled as sufficient information by giving the notice to the

applicant.

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34. Thus, there is substantial compliance by taking

entry in station diary and issuing the notice and taking entry

in the register maintained as per the directions of the

Hon’ble Apex Court.

35. In this view of the matter, the ground of non-

compliance of Section 50 of the Code and Article 22(1) of

the Constitution is not available to the present applicant

and, therefore, the application deserves to be rejected and

the same is rejected.

Application stands disposed of.

(URMILA JOSHI-PHALKE, J.)

!! BrWankhede !!

Signed by: Mr. B. R. Wankhede
Designation: PS To Honourable Judge …../-
Date: 17/04/2025 10:53:56