Gauhati High Court
Bail Appln./1100/2025 on 9 May, 2025
GAHC010075382025
2025:GAU-AS:5773
IN THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM & ARUNACHAL PRADESH)
BAIL APPLICATION NO.1100 OF 2025
Arun Khundongbam @ Nanao,
S/o- Kh. Ingobi Singh,
R/o- Vill: Sikhong Bazaar,
P.O.- Yairipok, P.S.- Nongpok Sekmai
District- Thoubal, Manipur.
Pin- 795149
.......Petitioner
-Versus-
The Central Bureau of Investigation,
Represented by its Director, Plot No.5-B,
6th Floor, CGO Complex, Lodhi Road,
Jawaharlal Nehru Stadium Marg, New
Delhi- 110003.
.......Respondent
-BEFORE-
HON'BLE MR. JUSTICE KAUSHIK GOSWAMI
For the Petitioner(s) : Mr. R. Sekhar, Advocate.
For the Respondent(s) : Ms. M. Kumari, Retainer Counsel, CBI.
Date of Hearing : 02.05.2025.
Date of Order : 09.05.2025.
Page 1 of 24
ORDER (CAV)
Heard Mr. R. Sekhar, learned Counsel appearing for the petitioner. Also heard Ms. M. Kumari, learned Retainer Counsel, CBI for the sole respondent.
2. This application is filed under Section 483 BNSS 2023 seeking grant of regular bail to the accused/petitioner i.e. Shri Arun Khundongbam @ Nanao, who was arrested on 20.07.2023 in connection with CBI FIR No. RC0562023S0012/CBI/SCB/Kolkata, re-registered and re- numbered by the CBI by taking over the case from Nongpok Sekmai Police Station being FIR No. 110(06)2023 NSK-PS, registered under Section-
153A/398/427/436/448/302/354/364/326/376/34, read with section 25(1-C) of Arms Act, added Section 376-D of the IPC, read with Section 3(1)d, 3(1)e, 3(1)g, 3(1)(w(i)), 3(1)z, 3(2)(iii), 3(2)(iv) and 3(2)(v) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989.
3. The brief facts of the case are that pursuant to a notification No. 12/1(4)/2023-H(CBI) dated 26.07.2023 issued by the Government of Manipur u/s 6 of the Delhi Special Police Establishment Act, 1946 (hereinafter referred to as DSPE Act), and notification F. No. 228/47/2023-AVD- II dated 28.07.2023 issued by the Government of India, Ministry of Personnel, Public Grievances and Pension, New Delhi, under Section 5(1) of the DSPE Act, CBI/SCB/Kolkata has re-registered RC 0562023S0012 on 28.07.2023 by Page 2 of 24 taking over the said FIR No. 110(06)2023 NSK-PS dated 21.06.2023 of Nongpok Sekmai P.S., Thoubal District, Manipur, and its corresponding FIR No. ZERO (91)(5)2023 SKL-PS dated 18.05.2023 of Saikul P.S. District-
Kangpokpai registered u/s- 153A/398/427/436/448/302/354/364/326/376/34 IPC, read with section 25(1-C) of the Arms Act, registered against unknown miscreants numbering about 900-1000 persons.
4. Pertinent that the aforesaid case is registered on the basis of a written complaint of one Mr. Thangboi Vaiphei against unknown miscreants at Saikul P.S., alleging physical assault and gang rape of women victims, murder of the father and brother of one of the victim women, and other offences that took place in and around other villages on 04.05.2023. The brief case of the prosecution as unfolded from reading of the said complaint is that it is alleged, inter alia, that on 04.05.2023 at around 3 pm, some unknown miscreants numbering about 900-1000 carrying sophisticated weapons and suspected to be members of Meitei Leepun, Kangleipak Kanba Lup (KKL), Arambai Tenggol and World Meitei Council (WMC), Schedule Tribe Demand Committee (STDC) entered village B. Phainom, Island Sub-Division, Kangpokpi District, Manipur, and vandalized and burnt the houses. It is further alleged that 5 villagers fled towards the forest and rescued by the Nongpok Sekmai Police team; however, on the way they were blocked by the mob, which snatched the 5 villagers from the custody of the police team. It is further Page 3 of 24 alleged that father of one of the victims was killed on the spot, and 3 victim women were physically forced to remove their clothes and were stripped naked in front of the mob. It is further alleged that one victim woman was brutally gang raped in broad daylight and the younger brother of the victim woman was also murdered by the members of the mob, and the 3 victim women managed to escape from the mob with the help of some persons. It is on the basis of the aforesaid complaint that a case was registered on 18.05.2023 as FIR bearing No. ZERO (91)(5)2023 SKL-PS. Thereafter, the case was transferred to Nongpok Sekmai P.S. Thoubal district, Manipur, as it falls under the jurisdiction of the said police station, and accordingly, FIR No. 110(06)2023 NSK/PS dated 21.06.2023 was re- registered.
5. During the investigation, the role of the accused/petitioner being surfaced, he was arrested from Nongpok Lourembam Chinglak by the Investigating Officer on 20.07.2023. Accordingly, he was produced before the jurisdictional Magistrate and upon being remand, he has been in custody. Hence, the instant bail application.
6. Mr. R. Sekhar, learned Counsel for the accused/petitioner, submits that the accused/petitioner was arrested on suspicion. He further submits that the arresting authority while arresting the accused/petitioner, has not informed the grounds for arrest, and as such, the fundamental and constitutional rights guaranteed to him under Article 22(1) of the Constitution of India have been Page 4 of 24 totally infringed by the arresting authority. He accordingly submits that the accused/petitioner is entitled to be released forthwith.
7. Per contra, Ms. M. Kumari, learned Retainer Counsel, CBI submits that the accused/petitioner was duly informed of the grounds of his arrest, and the same were also informed to his relatives. She accordingly submits that the arresting authority has duly complied with the mandatory requirement relating to arrest as contained under Article 22 of the Constitution of India. She further submits that there are materials available on record indicating the involvement of the accused/petitioner in the offence alleged. She further submits that the offence against which the accused/petitioner has been arrested is a heinous crime and the trial is yet to start. She further submits that if the bail is granted, the same shall hamper the trial. She further submits that the victims are staying outside their village and are scared to return to their homes. She further submits that in the event the accused/petitioner is released on bail there is a possibility of threat and tampering with the victims and the witnesses.
8. I have given my anxious considerations to the arguments advanced by the learned counsels appearing for the contending parties and have perused the materials available on record, including the case diaries and the scanned copies of the case records made available before this Court.
Page 5 of 249. It appears that pursuant to the directions of the Apex Court in SLP (Civil) Diary No. 19206/2023, the Gauhati High Court issued notification on 31.08.2023 designating the Court of Special Judge, CBI, Assam at Guwahati for trying the case relating to Manipur violence, including the instant case. It appears that during the pendency of the instant bail application, the CBI, after completion of the investigation, has filed Charge-sheet before the trial Court. It further appears that the trial Court is yet to take cognizance of the Charge-sheet.
10. A perusal of the case record, including the case diary, it appears that during the course of investigation, statements of three victims as well as one witness were recorded under Section 164 of Cr.P.C. It further appears that all the 3 victims and the independent witness have disclosed the naked parading, physical and sexual assault and gang rape of victim no.1 and victim no.2; the murder of father and brother of victim no.1; and physical assault of victim no.3 by the mob. It further appears that the victims have also confirmed the name of the accused/petitioner in their statement recorded under Section 164 of the Cr.P.C., thereby implicating him of the alleged offence.
11. It further appears that during the course of investigation, a photo test identification parade was conducted in accordance with law wherein victims also identified the accused/petitioner. It further appears that during investigation it revealed that the cause of death of the two deceased was homicidal in nature, and the death Page 6 of 24 of one of the deceased was due to laceration of the brain associated with fracture, dislocation of skull bone caused by hard and blunt force to the body and the death of the other deceased was due to shock and hemorrhage. It further appears from the material on record that the accused/petitioner, along with other co-accused, was part of the mob at the spot and played active role in the incident involving sexual assault/gang rape, naked parading of women victims, and murder of two relatives of one woman victim.
12. The primary ground urged in this bail application is as regard non-compliance of the constitutional and right of the accused/petitioner guaranteed under Article 21 and 22(1) of the Constitution of India.
13. Apt at the outset to refer to Article 21 of the Constitution of India, which reads as hereunder: -
"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."
14. Reading of the said Article, it is apparent that it is in relation to protection of life and personal liberty and that these two protections can only be taken away in accordance with procedure established by law.
15. Apt also to refer to Article 22(1) and (2) of the Constitution of India, which reads as hereunder: -
"22. Protection against arrest and detention in certain cases.--(1) No person who is arrested Page 7 of 24 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 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."
16. Reading clause (1) of the aforesaid Article, it is clear that it gives a twofold protection to an arrested person: firstly, he shall not be detained in custody without being told the grounds of such an arrest, and secondly, he shall be entitled to consult and to be defended by a legal practitioner of his choice. Under clause (2) of the aforesaid Article, it gives a further protection to an accused person that upon arrest, he must be produced before the nearest Magistrate within a period of 24 hours of his arrest. Therefore, it is the fundamental right of an arrestee, firstly, as soon as may be, to know the grounds of his arrest and, secondly, to be produced before the nearest Magistrate within 24 hours of his arrest. As such, whenever there is an arrest, the grounds of such arrest must be told to the arrestee, and he must be produced before the nearest Magistrate within 24 hours of his arrest. This right is guaranteed to the arrestee under the Constitution of India; if it is taken away from the arrestee, it would be depriving him of his right to liberty, which being his precious fundamental right, such arrest would be in total violation of Page 8 of 24 his fundamental rights. (Refer:- State of Madhya Pradesh Vs. Shobharam and Others., reported in AIR 1966 SC 1910.)
17. Keeping the aforesaid principle in mind, let me now examine whether the fundamental right of the accused/petitioner to be informed of the grounds of his arrest as soon as after his arrest is complied with or not in the instant case. It appears from the case diary that the accused/petitioner was arrested on 20.07.2023 at 6.49 pm by preparing an arrest memo in presence of witnesses and giving intimation to the father of the accused/petitioner. It further appears that the grounds for arrest of the accused/petitioner exist in the contemporaneous record of the local police diary. It further appears that the accused/petitioner was produced before the jurisdictional Magistrate through a petition on 21.07.2023, within 24 hours of his arrest. It further appears that the accused/petitioner, upon being produced was informed by the jurisdictional Magistrate of the grounds of his arrest, and the accused/petitioner, upon being asked whether his arrest is communicated to his relatives, answered in the affirmative.
18. Apt to reproduce the remand order dated 21.07.2023, which reads as hereunder:-
"REMAND ORDER 21/07/2023 The I0 of the case namely, Shri N. Suraj Singh, Addl SP (Law & Order), Thoubal filed an Page 9 of 24 application for allowing the production of the accused persons for police remand via Video Conferencing. Therein, it is stated that the present case is being highly covered by media as well as both bonafide and malafide various angry Civil Society Organisations. That, there exist high security risk to both the accused persons as well as security personnel. It is also stated therein that there is reported incidents of burning houses of the accused persons yesterday as well as today through inputs of police intelligence and sources. That, due to the present unpredictable law and order condition in which mobs are formed at the drop of a hat, production of the accused persons is very difficult. The I.0. further stated that in such extraordinary circumstances, the option of producing the accused persons via Video Conferencing be allowed considering the safety of the accused persons, police personnel and general public.
Considering the submission of the I.O. of the case, volatile law and order condition of the State as it exist today and keeping in view of the safety of the accused persons and extraordinary circumstances, the prayer of the I.0. is allowed. As such, the present remand application hearing is done through the mode of Video Conferencing and there was no disturbances in the internet network connection during the hearing.
Today, the accused persons namely, 1) Huirem Herodash Meitei (32), S/o Late H. Rajen Meitei of Pechi Awang Leikai, 2) Arun Khundongbam @ Nanao (29), S/o Kh. Ingobi Singh of Sikhong Bazar, Nongpok Sekmai, 3) Yumlembam Jiban Singh (18), S/o Y. Ibomcha Singh of Nongpok Sekmai Awang Leikai and 4) Ningombam Tomba Singh @Tomthin (21), S/o N. Biren Singh of Pechi Awang Leikai are produced before this Court via VC mode through Ld. APP to JMFC, Thoubal in connection with the above referred FIR along with the prayer for remanding the accused persons in police custody for a period of 11 days with effect from 21.7.23 to 31.7.23.Page 10 of 24
The brief facts of the Prosecution is that on 21.6.23 at 4:31 pm one ZERO FIR ZERO (91)(5)2023 SKL PS u/s 153A/398/427/436/448/302/354/364/326/376 /34 IPC & 25(1-C) A. Act from SKL PS was received in which one complainant namely Thangboi Vaiphei (65), S/o Late Buthen Vaiphei, Chief of B. Phainom village, PO Yairipok, PS Nongpok Sekmai, Kangpokpi District, Manipur lodged a written report to OC/SKL-PS stating that on 4.5.23 at around 3:00 pm some unknown miscreants suspected to be members of Meitei Youth Organizations, Meetei Leepun, Kangleipak Kanba Lup (KKL), Arambai Tenggol and World Meitei Council (WMC), Schedule Tribe Demand Committee (STDC) numbering about 900-1000 persons carrying sophisticated weapons like AK Rifles, SLR, INSAS and .303 Rifles forcefully entered their village B. Phainom, Island Sub-Division, Kangpokpi District, Manipur which is about 68 Km South from Saikul PS. The violent mob vandalised all the houses and burnt them to the ground after looting all the moveable properties and cash including furniture, electronic items, utensils, clothes, grains, cattles, domestic animals etc. leaving all of them homeless.
It is also stated that five villagers namely
1. Soitinkam Vaiphei (56), S/o Lalminlian Vaiphei,
2. Nengkholun Vaiphei (19), S/o Soitinkam Vaiphei,
3. Ms. Thiamthainhoi Vaiphei (21), D/o Soitinkam Vaiphei, 4. Tingngailam Vaiphei (42), W/o Thangboi Vaiphei and 5. Tingdoihat Vaiphei (52), W/o Joseph Vaiphei who feared loss of life fled towards the forest.
Later, they were rescued by Nongpok Sekmai Police team and on their way to Nongpok Sekmai PS, however, they were blocked on the way by the mob and snatched them from the custody of police team by the violent mob near Toubul (Sekmai Khunou) which is about 2 km from Nongpok Sekmai PS and about 3 Km from 33 AR Somrei Post.
Further it is stated that Mr. Sotinkam Vaiphei (56), S/o Lalminlinan Vaiphei was killed at Page 11 of 24 the spot by the mob and all three women were physically forced to remove their clothes and were stripped naked in front of the mob. Miss Thiamthianhoi Vaiphei (21), D/o Soitinkam Vaiphei was brutally gang raped in the broad daylight in front of the witnesses namely Nengkholun Vaiphei (19), S/o Soitinkam Vaiphei, Mrs. Tingngailam Vaiphei (42), w/o Thangboi Vaiphei and Tingdoihat Vaiphei (52), W/o Joseph Vaiphei. Mr. Nengkholun Vaiphei (19), S/o Soitinkam Vaiphei who is the younger brother tried to defend his sister's modesty and life but he was murdered by the members of the mob on the spot. The victim (Ms. Thiamthianhoi Vaiphei) alongwith witnesses namely Mrs. Tingngailam Vaiphei (42), w/o Thangboi Vaiphei and Tingdoihat Vaiphei (52), W/o Joseph Vaiphei managed to escape from the spot with the help of some people of the areas who were known to them.
A regular FIR No. 110 (06) 2023 NSK-PS u/s 153A/398/427/436/448/302/354/364/326/376 /34 IPC & 25 (1-C) Arms Act was registered on 21/06/2023 for further investigation.
Hence, the present application praying for remanding the accused persons in police custody for a period of 11 days w.e.f. 21.7.2023 to 31.7.2023 in the interest of further investigation of the case.
The I.O. of the case also made prayer for adding section 376DIPC, section 3(1)d, 3(1)e, 3(1)g, 3(1)w(i), 3(1)z, 3(2)(iii) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989.
The accused persons are made known about the grounds of their arrest and was asked if their arrests is informed to their relatives. All the accused persons answered in affirmative. This Court also enquired about the medical condition of all the accused persons. The accused persons replied that they do not have any such medical condition or had such history of medical condition. The I.O. of the case through Ld. APP also forwarded the copy of FIR and OE pertaining to the Page 12 of 24 case also the arrest memo of the accused persons through Whatsapp. The same are examined and perused. The extract copy of the CD is also forwarded alongwith the present application through Whatsapp and same is perused.
Heard the submission of Shri. Tipoo Ningombam, Id. APP of the State as well as remand objection made by Shri. Yumnam Johnson, Deputy Legal Aid Defence Council, Thoubal for the accused persons. Perused the documents available on record.
Shri. Yumnam Johnson, Deputy Legal Aid Defence Council, Thoubal for the accused persons had objected to the remand application and submitted that the period of detention of the accused persons in police custody be shortened from 11 days.
As the present case is at initial stage of investigation and considering the serious nature of offences alleged against the accused persons, this Court is of view that proper and thorough investigation is required. Considering the submissions of the Prosecution and for smooth investigation of the case, the detention of the accused persons in police custody is highly required for the purpose of investigation of the case so as to unearth the real facts of the case. Thus, the present remand application is allowed and the accused persons are remanded into police custody for a period of 11 days w.e.f 21.7.23 to 31.7.23 for proper and further investigation of the case.
The I.0 of the case is directed to produce the accused persons before a registered Medical Officer for medical checkup for every 48 hours while they are in the police custody and to provide every required medication as prescribed or as per the requirement of the accused persons and to provide proper meal.
Produce the accused persons before this Court on 31.7.23.
(Ningombam Sofiarani Devi) i/c Judicial Magistrate First Class, Thoubal."
Page 13 of 2419. Reading of the aforesaid remand order it is absolutely clear that the accused/petitioner was produced before the jurisdictional Magistrate within 24 hours of his arrest. Therefore, clause (2) of Article 22 stands fully complied.
20. This brings me to the first part of clause (1) of Article 22, with which I am concerned in this case. The requirement under the first part of Article 22(1) is that a person arrested must be told the brief facts constituting the grounds of his arrest as soon as may be, after the arrest. Non-compliance with Article 22(1) will be in violation of the fundamental right of the accused guaranteed under the said Article. Therefore, when an accused is produced before a judicial Magistrate after arrest, it is the duty of the Magistrate to ascertain whether compliance with Article 22(1) and other mandatory safeguards has been made or not. Hence, only when a violation of Article 22(1) is established, the Court shall have no option but to release forthwith such arrestee.
21. Reference is made to the decision of the Apex Court in the case of Vihaan Kumar Vs State of Haryana and Anr., reported in 2025 SCConline SC 269. Paragraph 21 of the aforesaid decision is reproduced hereunder for ready reference:
"21. Therefore, we conclude:Page 14 of 24
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 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 requirernents 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 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 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."
22. In the present case, it is apparent from the aforesaid remand order that the accused/petitioner was informed of the grounds of his arrest upon being Page 15 of 24 produced before the jurisdictional Magistrate within the stipulated period of time. That apart, it is further apparent that the grounds of such arrest were also informed to his relatives. That apart, the jurisdictional Magistrate, after hearing the accused/petitioner and satisfying itself that the mandatory requirement of arrest had been complied with, ordered remand of the accused/petitioner. The short question thus is whether the grounds of arrest being made known to the accused/petitioner by the jurisdictional Magistrate upon being produced within 24 hours of his arrest is sufficient compliance with Article 22(1) of the Constitution of India or not.
23. Undoubtedly, no fixed time is provided under clause (1) of Article 22 within which the information of the grounds of arrest is to be provided to the arrestee. However, what is provided thereunder is that, when a person is arrested, he is required to be informed "as soon as may be" of the grounds of his arrest. Thus, the expression "as soon as may be," as appearing in clause (1) of Article 22 assumes significance. In common parlance the said expression "as soon as may be" would mean "as early as possible" or "within a reasonable convenient period of time." No straight jacket formula can be adopted to calculate as what would be a reasonable convenient period of time to construe the expression "as soon as may be" as appearing in clause (1) of Article 22. The mandatory safeguards under Article Page 16 of 24 22(1) must be protected, not jettisoned. However, what cannot be overlooked is that the protection that is provided by the Constitution to an arrestee is that he should not be kept in custody/detention without being informed of the grounds of his arrest and that he is mandatorily required to be produced before the nearest Magistrate within 24 hours of his arrest. The object of informing the arrestee is to enable him to make his representation against the order. Therefore, the combined effect of clause (1) and clause (2) of Article 22 is undoubtedly that if an arrestee is informed about his arrest upon being produced before the jurisdictional Magistrate within 24 hours of his arrest, the same would be sufficient compliance with Article 22(1).
24. It would be worthwhile to mention that the Apex Court has held in the case of Pankaj Bansal v. Union of India, which is reported in (2024) 7 SCC 576, that the grounds of arrest must be communicated in writing to the accused. However, the case of Pankaj Bansal (Supra) can be made applicable only to arrests made after the said decision rendered by the Apex Court on 03.10.2023. In other words, in respect of arrest made after 03.10.2023, an arrestee must not only be made known the grounds of arrest, but the same must also be communicated in writing.
25. Reference is made to the decision of the Apex Court in the case of Ram Kishore Arora Vs. Directorate of Enforcement, reported in (2024) 7 Page 17 of 24 SCC 599. Relevant paragraphs of the aforesaid judgment are reproduced hereunder for ready reference:-
"17. It is true that the expression "as soon as may be has not been specifically explained in Vijay Madanlal Choudharys. Even the said expression has not been interpreted in either V. Senthil Balaji or in Pankaj Bansal case. In V. Senthil Balaji, it is held, inter alia, that after forming a reason to believe that the person has been guilty of an offence punishable under PMLA, the officer concerned is at liberty to arrest him, while performing his mandatory duty of recording the reasons, and that the said exercise has to be followed by way of an information being served on the arrestee of the grounds of arrest.
18. In Pankaj Bansal case also the court after highlighting the inconsistent practice being followed by the respondent ED about the mode of informing the person arrested, held 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.
19. In view of the above, the interpretation of the expression „as soon as may be‟ assumes significance. In our opinion, the interpretation of the said expression should not detain us more in view of the Constitution Bench judgment in Abdul Jabar Butt v. State of J&K. In the said case, the Constitution Bench while interpreting Section 8 of the Jammu & Kashmir Preventive Detention Act, 2011, had an occasion to interpret the expression „as soon as may be‟ and it observed thus: (SCC OnLine SC para 6) „6. Sub-section (1) imposes on the Government two duties, namely. (i) the duty of communicating to the detenue the grounds on which the order has been made and (ii) the duty of affording him the earliest opportunity of making representation against the order to the Government. The first duty is to be performed „as soon as may be‟. Quite Page 18 of 24 clearly the period of time predicated by the phrase „as soon as may be‟ begins to run from the time the detention in pursuance of the detention order begins. The question is- what is the span of time, which is designated by the words „as soon as may be‟? The observations of Dysant, J. in King's Old Country Ltd. v. Liquid Carbonic Can. Corpn. Ltd., WWR at p. 606 quoted in Stroud's Judicial Dictionary, 3rd Edn., Vol. 1. p. 200 are apposite. Said the learned Judge to do a thing „as soon as possible‟ means to do it within a reasonable time, with an understanding to do it within the shortest possible time. Likewise to communicate the grounds „as soon as may be‟ may well be said to mean to do so within a reasonable time with an understanding to do it within the shortest possible time. What, however, is to be regarded as a reasonable time or the shortest possible time? The words „as soon as may be‟ came for consideration before this Court in Ujagar Singh v. State of Punjab. At SCC p. 175, para 9 this Court observed that the expression meant with a „reasonable dispatch‟ and then went on to say that 'what was reasonable must depend on the facts of each case and no arbitrary time limit could be set down.‟ In Keshav Nilkanth Joglekar v. State of Bombay the word „forthwith‟ occurring in Section 3(3) of the Preventive Detention Act (4 of 1950) came up for consideration. After observing that the word „forthwith‟ occurring in Section 3(3) of that Act did not mean the same thing as „as soon as may be‟ used in Section 7 of the same Act and that the former was more peremptory than the latter, this Court observed that the time that was allowed to the authority to communicate the grounds to the detenu and was predicated by the expression „as soon as may be‟; was what was „reasonably convenient‟ or „reasonably requisite‟.Page 19 of 24
20. Again, a three-Judge Bench in Durga Pada Ghosh v. State of W.B.26 while considering the scheme of Article 22 of the Constitution held as under: (SCC p. 664, para 8) „8. The scheme underlying Article 22 of the Constitution highlights the importance attached in our constitutional set-up to the personal freedom of an individual. Clauses (1) and (2) refer to the protection against arrest and detention of a person under the ordinary law. Persons arrested or detained under a law providing for preventive detention are dealt with in Clauses (4) to (7).
Clauses (5) says that when a person is detained in pursuance of an order under a law providing for preventive detention the grounds on which the order is made have to be communicated to the person concerned as soon as may be and he has to be afforded earliest opportunity to represent against the order. The object of communicating the grounds is to enable the detenu to make his representation against the order. The words „as soon as may be‟ in the context must imply anxious care on the part of the authority concerned to perform its duty in this respect as early as practicable without avoidable delay.‟
21. In view of the above, the expression „as soon as may be‟ contained in Section 19 PMLA is required to be construed as- „as early as possible without avoidable delay‟ or „within reasonably convenient‟ or „reasonably requisite period of time‟. Since by way of safeguard a duty is cast upon the officer concerned to forward a copy of the order along with the material in his possession to the adjudicating authority immediately after the arrest of the person, and to take the person arrested to the court concerned within 24 hours of the arrest, in our opinion, the reasonably convenient or reasonably requisite time to inform the arrestee about the grounds of his arrest would be twenty- four hours of the arrest.
Page 20 of 2422. In Vijay Madanlal Choudhary, it has been categorically held that so long as the person has been informed about the grounds of his arrest, that is sufficient compliance with 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 authority about the involvement of the arrested person in the offence of money- laundering. 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 PMLA but also of Article 22(1) of the Constitution of India.
23. As discernible from the judgment in Pankaj Bansal case also noticing the inconsistent practice being followed by the officers arresting the persons under Section 19 PMLA, directed to furnish the grounds of arrest in writing as a matter of course, „henceforth‟, meaning thereby from the date of the pronouncement of the judgment. The very use of the word „henceforth‟ implied that the said requirement of furnishing grounds of arrest in writing to the arrested person as soon as after his arrest was not mandatory or obligatory till the date of the said judgment. The submission of the learned Senior Counsel Mr Singhvi for the appellant that the said judgment was required to be given effect retrospectively cannot be accepted when the judgment itself states 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. Hence, non-furnishing of grounds of arrest in writing till the date of pronouncement of judgment in Pankaj Bansal case could neither be held to be illegal nor the action of the officer concerned in not furnishing Page 21 of 24 the same in writing could be faulted with. As such, the action of informing the person arrested about the grounds of his arrest is a sufficient compliance of Section 19 PMLA as also Article 22(1) of the Constitution of India, as held in Vijay Madanlal."
26. Reading the aforesaid judgment of the Apex Court, it is clear that for arrests made prior to the pronouncement of judgment in Pankaj Bansal (Supra), so long as the arrestee has been informed about his arrest at the time he is produced within the stipulated prescribed period of time under Article 22(2), it would construe sufficient compliance with the mandate of Article 22(1) of the Constitution of India. In other words, it was not mandatory to communicate the grounds of arrest in writing prior to the pronouncement of the said judgment.
27. In the present case, the accused/petitioner was arrested on 20.07.2023, and therefore, the decision of the Apex Court in the case of Pankaj Bansal (Supra) is not applicable. Hence, the arrest of the accused/petitioner cannot be held to be illegal. Viewed thus, I am of the unhesitant view that in the facts of the present case Article 22(1) of the Constitution of India has been sufficiently complied with. That being so, no violation of Article 22(1) is made out in the instant case.
28. I cannot be unmindful of the seriousness of the nature of the allegations against the accused/petitioner in the case at hand, the severity of punishment in case of conviction against the alleged offences and also the fact that cognizance is yet to be taken by the trial Court. That Page 22 of 24 apart, it appears that the victims as well as the witnesses have implicated the accused/petitioner for the alleged offences and that one of the victims, whose father and brother are alleged to have been murdered by the accused/petitioner, has also identified the accused/petitioner to be one of the perpetrators. Thus, there is prima-facie material available on record indicating the involvement of the accused/petitioner in the offences alleged. I also cannot disregard the fact that the victims are yet to depose before the trial Court. Furthermore, the apprehension of the prosecution that there is every possibility of the accused/petitioner threatening and tampering with the victims and witnesses if is released on bail can also not be disregarded by this Court in the peculiarity of the facts and circumstances of the case.
29. There is no quarrel with the proposition that at the stage of granting bail, this Court is not punishing the accused. It is well settled that the grant or refusal of bail is the discretion of the Court and the same should be exercised judiciously. I am reminded of the age-old principle propounded by the Apex Court in the case of Gurbaksh Singh Vs. the State of Punjab, reported in AIR 1980 SC 1632, that the grant of bail is the rule and refusal is the exception. However, in the backdrop of the rare facts and circumstances of the instant case, I shall not be justified if I do not make an exception to the said rule.
Page 23 of 2430. Thus, keeping in mind, amongst other circumstances of the case, the seriousness of the offences, the prima-facie case against the accused/petitioner, the possibility of the accused/petitioner threatening and tampering the victims and witnesses, and the larger interest of the public vis-a- viz Article 21 of the Constitution of India, I am of the firm opinion that bail at this stage cannot be granted to the accused/petitioner. Accordingly, the prayer for grant of bail stands rejected.
31. It is needless to clarify that the observation made in course of consideration of the bail shall not have any bearing on the independent judicial discretion of the trial Court.
32. Resultantly the bail application stands dismissed.
33. Return the case diary and original records of the trial Court.
34. Certified copy of the remand order as placed by Ms. M. Kumari, learned Retainer Counsel, CBI is kept on record and marked as "X".
JUDGE Comparing Assistant Page 24 of 24