Karnataka High Court
John Moses D @ Madan Kumar vs State Of Karnataka on 28 November, 2024
Author: M.Nagaprasanna
Bench: M.Nagaprasanna
1
Reserved on : 18.09.2024
Pronounced on : 28.11.2024 R
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 28TH DAY OF NOVEMBER, 2024
BEFORE
THE HON'BLE MR. JUSTICE M. NAGAPRASANNA
WRIT PETITION No.22042 OF 2024 (GM - RES)
BETWEEN:
JOHN MOSES D @ MADAN KUMAR
S/O JOHN DEVAMANI
AGED ABOUT 47 YEARS,
RESIDING AT NO.201,
2ND FLOOR,
KAVITHA RESIDENCY
MARUTHI SEVA NAGARA,
BENGALURU - 560 033.
... PETITIONER
(BY SRI SANDESH J.CHOUTA, SR.ADVOCATE A/W
SRI SUNIL KUMAR S., ADVOCATE)
AND:
STATE OF KARNATAKA
BY BHARATI NAGAR P.S.,
NOW INVESTIGATION BY
CID-SPECIAL ENQUIRY WING
REPRESENTED BY SPP
HIGH COURT BUILDING
2
BENGALURU - 560 001.
... RESPONDENT
(BY SRI ASHOK NAYAK, SPL.PP)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND
227 OF THE CONSTITUTION OF INDIA READ WITH SECTION 482 OF
CR.P.C., PRAYING TO DECLARE THE ARREST OF THE PETITIONER
AS ILLEGAL AND IN GROSS VIOLATION OF THE FUNDAMENTAL
RIGHTS OF THE PETITIONER GUARANTEED UNDER ARTICLES 21
AND 22 OF THE CONSTITUTION OF INDIA IN CRIME NO. 8/2022
REGISTERED BY THE BHARATI NAGAR P.S. AND NOW BEING
INVESTIGATED BY CID-SPECIAL INQUIRY WING AND ETC.,
THIS WRIT PETITION HAVING BEEN HEARD AND RESERVED
FOR ORDERS ON 18.09.2024, COMING ON FOR PRONOUNCEMENT
THIS DAY, THE COURT MADE THE FOLLOWING:-
CORAM: THE HON'BLE MR JUSTICE M.NAGAPRASANNA
CAV ORDER
The petitioner is knocking at the doors of this Court seeking a
declaration that the arrest of the petitioner is illegal and in gross
violation of his fundamental rights, guaranteed under Articles 21
and 22 of the Constitution of India in Crime No.8 of 2022 and has
sought quashment of remand order dated 22-07-2024 to be again
3
in violation of the said constitutional mandate and seeks release of
the petitioner as a consequence of holding the arrest to be illegal.
2. Heard the learned senior counsel Sri Sandesh J Chouta
appearing for the petitioner and Sri Ashok Naik, learned Special
Public Prosecutor for the respondent.
3. Sans details, facts in brief, germane are as follows:-
The backdrop of the present proceedings is from a crime
registered in Crime No.467 of 2021 for offences punishable under
Sections 417, 420, 465, 468, 471, 120B r/w 34 of the IPC against
John Moses, accused No.1; S.N.Narendra, accused No.2, Smt.
Kanthamma, accused No.3 and Chaitra, accused No.4. The FIR
pertaining to the said offence was transferred to the Crime
Investigation Department. The Crime Investigation Department
then registers a fresh crime in Crime No.8 of 2022 for the aforesaid
offences. The investigation in the said crime was continued against
19 persons. The petitioner was one of them. A notice under Section
41A of the Cr.P.C. was issued to the petitioner and in furtherance of
4
the notice, the petitioner is said to have appeared before the
Investigating Officer on 28-05-2024. He was taken into custody at
that moment and remanded to judicial custody till 11-06-2024. On
11-06-2024, the petitioner was granted bail in Crime No.467 of
2021. On the score that he was on a body warrant in another crime
in Crime No.449 of 2021, he was again produced before the
Magistrate and the Magistrate remands him to policy custody for
three days between 18-06-2024 and 21-06-2024. The Investigating
Officer in Crime No.467 of 2021 files a charge sheet on
28-06-2024.
4. The petitioner was granted bail in another crime in Crime
No.449 of 2021 in which he was taken into custody on 18-06-2024.
The moment he was granted bail, the petitioner was again taken
into custody on a body warrant in another crime in Crime No.8 of
2022, the subject crime. The Director General and Inspector
General of Police of the CID, on an application made, grants prior
approval for invocation of Karnataka Control of Organized Crimes
Act, 2000 ('KCOCA' for short) which is reflected in the remand
application. On 20-07-2024, the petitioner is produced before the
5
learned Magistrate along with the remand application and is
remanded to judicial custody till 02-08-2024. In the light of
invocation of KCOCA, the entire case was transferred to the Special
Court, the Court of Sessions and the petitioner continues to be in
the Central Prison in Crime No.8 of 2022.
5. The learned senior counsel for the petitioner would project
that arrest of the petitioner is illegal, for the reason that it is in
contravention of the judgment of the Apex Court in the cases of
PANKAJ BANSAL v. UNION OF INDIA1, PRABIR
PURKAYASTHA v. STATE (NCT OF DELHI)2 and the subsequent
judgment in the case of ARVIND KEJRIWAL v. DIRECTORATE
OF ENFORCEMENT3 and would submit that once the arrest is held
to be illegal, the consequential action of release of the petitioner on
grant of interim bail should follow.
6. Per contra, Sri Ashok Naik, learned Special Public
Prosecutor would refute the submission by placing reliance upon the
1
2023 SCC OnLine SC 1244
2
2024 SCC OnLine SC 934
3
2024 SCC OnLine SC 1703
6
earlier judgment of the Apex Court which holds that intimation of
arrest would be enough and not grounds of arrest and he would
seek dismissal of the petition on the score that several cases are
registered against the petitioner who has swindled away many of
innocent investors.
7. The learned additional State Public Prosecutor
Sri B.N. Jagadeesha was also asked to assist the Court. In
rendering such assistance, the learned Additional State Public
Prosecutor has placed on record several judgments and has sought
to distinguish all the three judgments relied on by the learned
senior counsel for the petitioner in contending that those judgments
upon which the learned senior counsel would seek to place reliance
upon have no relevance to the issue in the case at hand.
8. I have given my anxious consideration to the submissions
made by the respective learned counsel and have perused the
material on record.
7
9. In the light of the aforesaid submissions, at this juncture
the pivotal issue that requires consideration is:
"whether the arrest of the petitioner in Crime No.8 of
2022 is illegal on the ground that grounds of arrest were not
made known to the petitioner?"
10. It therefore becomes necessary to notice what was made
known to the petitioner at the time of arrest. It is a notice of arrest
dated 21-07-2024, it reads as follows:
"::w¼ÀĪÀ½PÉ £ÉÆÃnøï::
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8
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The contention of the learned senior counsel is that the notice of
arrest would not suffice, what should be made known to the
accused/petitioner is grounds of arrest. He would place heavy
reliance upon 3 judgments of the Apex Court, in the cases of
PANKAJ BANSAL v. UNION OF INDIA, PRABIR PURKAYASTHA
and ARVIND KEJRIWAL supra. The Apex Court in the case of
PANKAJ BANSAL has held as follows:
".... .... ....
37. No doubt, in Vijay Madanlal Choudhary [Vijay
Madanlal Choudhary v. Union of India, (2023) 12 SCC 1 : 2022
SCC OnLine SC 929 : (2022) 10 Scale 577] , this Court held
that non-supply of the ECIR in a given case cannot be found
fault with, as the ECIR may contain details of the material in
ED's possession and revealing the same may have a
deleterious impact on the final outcome of the investigation or
inquiry. Having held so, this Court affirmed that so long as the
person is "informed" of the grounds of his/her arrest, that
would be sufficient compliance with the mandate of Article
22(1) of the Constitution.
38. In this regard, we may note that Article 22(1)
of the Constitution provides, inter alia, that no person
9
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 to be aware of the
grounds on which the authorised 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 2002 Act. 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 PMLA, 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 authorised 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 2002 Act. Section 19(2) requires the
authorised 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
10
constitutional and statutory right to be "informed" of the
grounds of arrest, which are compulsorily recorded in writing
by the authorised 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 ED's authorised 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.
40. That apart, Rule 6 of the Prevention of Money
Laundering (the Forms and the Manner of Forwarding a Copy
of Order of Arrest of a Person Along with the Material to the
Adjudicating Authority and its Period of Retention) Rules,
2005, titled "Forms of Records", provides to the effect that the
arresting officer while exercising powers under Section 19(1)
PMLA, shall sign the arrest order in Form III appended to
those Rules. Form III, being the prescribed format of the
arrest order, reads as under:
"ARREST ORDER
Whereas, I......... Director/Deputy Director/Assistant
Director/Officer authorised in this behalf by the Central
Government, have reason to believe that ...... (name of the
person arrested) resident of ...... has been guilty of an offence
punishable under the provisions of the Prevention of Money-
laundering Act, 2002 (15 of 2003);
Now, therefore, in exercise of the powers conferred on
me under sub-section (1) of Section 19 of the Prevention of
Money-laundering Act, 2002 (15 of 2003), I hereby arrest the
said ...... (name of the person arrested) at ...... hours on ......
and he has been informed of the grounds for such arrest.
Dated at ...... on this ...... day of ...... Two thousand ......
Arresting Officer
(Signature with Seal)
To
...........................
11
...........................
(Name and complete address of the person arrested)"
41. Needless to state, this format would be followed all
over the country by the authorised officers who exercise the
power of arrest under Section 19(1) PMLA but, in certain parts
of the country, the authorised officer would inform the
arrested person of the grounds of arrest by furnishing the
same in writing, while in other parts of the country, on the
basis of the very same prescribed format, the authorised
officer would only read out or permit reading of the contents of
the grounds of arrest. This dual and disparate procedure to
convey the grounds of arrest to the arrested person cannot be
countenanced on the strength of the very same arrest order,
in the aforestated prescribed format.
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 authorised 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 [V. Senthil Balaji v. State, (2024) 3 SCC 51 :
(2024) 2 SCC (Cri) 1] . 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 authorised officer in terms
of Section 19(1) PMLA, to the arrested person under
12
due acknowledgment, instead of leaving it to the
debatable ipse dixit of the authorised officer.
43. The second reason as to why this would be the
proper course to adopt is the constitutional objective
underlying such information being given to the arrested
person. Conveyance of this information is not only to
apprise the arrested person of why he/she is being
arrested but also to enable such person to seek legal
counsel and, thereafter, present a case before the court
under Section 45 to seek release on bail, if he/she so
chooses. In this regard, the grounds of arrest in V.
Senthil Balaji [V. Senthil Balaji v. State, (2024) 3 SCC 51
: (2024) 2 SCC (Cri) 1] are placed on record and we find
that the same run into as many as six pages. The
grounds of arrest recorded in the case on hand in
relation to Pankaj Bansal and Basant Bansal have not
been produced before this Court, but it was contended
that they were produced at the time of remand.
However, as already noted earlier, this did not serve the
intended purpose. Further, in the event their grounds of
arrest were equally voluminous, it would be well-nigh
impossible for either Pankaj Bansal or Basant Bansal to
record and remember all that they had read or heard
being read out for future recall so as to avail legal
remedies. More so, as a person who has just been
arrested would not be in a calm and collected frame of
mind and may be utterly incapable of remembering the
contents of the grounds of arrest read by or read out to
him/her. The very purpose of this constitutional and
statutory protection would be rendered nugatory by
permitting the authorities concerned to merely read out
or permit reading of the grounds of arrest, irrespective
of their length and detail, and claim due compliance
with the constitutional requirement under Article 22(1)
and the statutory mandate under Section 19(1) PMLA.
44. We may also note that the grounds of arrest
recorded by the authorised officer, in terms of Section 19(1)
PMLA, would be personal to the person who is arrested and
there should, ordinarily, be no risk of sensitive material being
divulged therefrom, compromising the sanctity and integrity of
13
the investigation. In the event any such sensitive material
finds mention in such grounds of arrest recorded by the
authorised officer, it would always be open to him to redact
such sensitive portions in the document and furnish the edited
copy of the grounds of arrest to the arrested person, so as to
safeguard the sanctity of the investigation.
45. On the above analysis, to give true meaning and
purpose to the constitutional and the statutory mandate of
Section 19(1) PMLA of informing the arrested person of the
grounds of arrest, we hold that it would be necessary,
henceforth, that a copy of such written grounds of arrest is
furnished to the arrested person as a matter of course and
without exception. The decisions of the Delhi High Court in
Moin Akhtar Qureshi [Moin Akhtar Qureshi v. Union of India,
2017 SCC OnLine Del 12108] and the Bombay High Court in
Chhagan Chandrakant Bhujbal [Chhagan Chandrakant Bhujbal
v. Union of India, 2016 SCC OnLine Bom 9938 : (2017) 1 AIR
Bom R (Cri) 929] , which hold to the contrary, do not lay down
the correct law. In the case on hand, the admitted position is
that ED's investigating officer merely read out or permitted
reading of the grounds of arrest of the appellants and left it at
that, which is also disputed by the appellants. As this form of
communication is not found to be adequate to fulfil compliance
with the mandate of Article 22(1) of the Constitution and
Section 19(1) PMLA, we have no hesitation in holding that
their arrest was not in keeping with the provisions of
Section 19(1) PMLA. Further, as already noted supra,
the clandestine conduct of ED in proceeding against the
appellants, by recording the second ECIR immediately
after they secured interim protection in relation to the
first ECIR, does not commend acceptance as it reeks of
arbitrary exercise of power. In effect, the arrest of the
appellants and, in consequence, their remand to the
custody of ED and, thereafter, to judicial custody,
cannot be sustained."
(Emphasis supplied)
14
Following the said judgment, the Apex Court, in the case of
PRABIR PURKAYASTHA has held as follows:
".... .... ....
4. The appellant was presented in the court of the
learned Additional Sessions Judge-02, Patiala House Courts,
New Delhi (hereinafter being referred to as "the Remand
Judge") on 4-10-2023, sometime before 6.00 a.m. which fact
is manifested from the remand order (Annexure P-1) placed
on record of appeal with IA No. 217857 of 2023. The
appellant was remanded to seven days' police custody vide
order dated 4-10-2023.
... ... ...
13. Since the learned ASG has advanced a fervent
contention regarding application of ratio of Pankaj
Bansal [Pankaj Bansal v. Union of India, (2024) 7 SCC 576]
urging that there is an inherent difference between the
provisions contained in Section 19 PMLA and Sections 43-A
and 43-B UAPA, it would first be apposite for us to address
the said submission.
... ... ...
18. We may note that the modified application of
Section 167CrPC 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 Pankaj
Bansal [Pankaj Bansal v. Union of India, (2024) 7 SCC 576]
on the aspect of informing the arrested person the grounds
of arrest in writing has to be applied pari passu to a person
arrested in a case registered under the provisions of the
UAPA.
... ... ...
20. The right to life and personal liberty is the
most sacrosanct fundamental right guaranteed under
Articles 20, 21 and 22 of the Constitution of India. Any
attempt to encroach upon this fundamental right has
been frowned upon by this Court in a catena of
decisions. In this regard, we may refer to the following
observations made by this Court in Roy V.D. v. State of
15
Kerala [Roy V.D. v. State of Kerala, (2000) 8 SCC 590:
2001 SCC (Cri) 42]: (SCC p. 593, para 7)
"7. The life and liberty of an individual is so
sacrosanct that it cannot be allowed to be interfered
with except under the authority of law. It is a
principle which has been recognised and applied in all
civilised countries. In our Constitution Article 21
guarantees protection of life and personal liberty not
only to citizens of India but also to aliens."
Thus, any attempt to violate such fundamental right,
guaranteed by Articles 20, 21 and 22 of the
Constitution of India, would have to be dealt with
strictly.
... ... ...
22. The learned ASG referred to the language of
Article 22(5) of the Constitution of India and urged that even
in a case of preventive detention, the constitutional scheme
does not require that the grounds on which the order of
detention has been passed should be communicated to the
detenu in writing. Ex facie, we are not impressed with the
said submission.
... ... ...
26. From a holistic reading of various judgments
pertaining to the law of preventive detention including
the Constitution Bench decision of this Court
in Harikisan [Harikisan v. State of Maharashtra, 1962
SCC OnLine SC 117] , 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.
... ... ...
34. It is apparent that the appellant had objected to
the appearance of the remand counsel before the learned
Remand Judge and this is the reason, the investigating
officer undertook a charade of informing of the advocate
engaged by the appellant on mobile. The learned Remand
Judge recorded the presence of Shri Arshdeep Khurana,
16
Advocate, mentioning that he had been informed and heard
on the remand application through telephone call. The initial
information about the appellant-accused being presented
before the learned Remand Judge was sent by the arresting
officer to the appellant's relative Shri Rishab Bailey at around
6.46 a.m. and he, in turn, informed the Advocate Shri
Arshdeep Khurana around 7.00 a.m. These facts are
manifested from perusal of the call logs presented for the
perusal of the court. Thus, by the time, the advocate
engaged by the appellant-accused had been informed,
the order of remand had already been passed.
Unquestionably, till that time, the grounds of arrest
had not been conveyed to the appellant in writing.
... ... ...
38. The remand order dated 4-10-2023 (reproduced
supra) records that the copy of the remand application had
been sent to the learned advocate engaged by the appellant-
accused through WhatsApp. A bare perusal of the remand
order is enough to satisfy us that these two lines were
subsequently inserted in the order because the script in
which these two lines were written is much finer as
compared to the remaining part of the order and moreover,
these two lines give a clear indication of subsequent
insertion. It is quite possible that the learned Remand Judge
may have heard the learned counsel for the appellant after
signing the remand order and thus, these lines were inserted
later without intending any harm or malintention but the fact
remains that the order of remand had already been passed
at 6.00 a.m. and hence, the subsequent opportunity of
hearing, if any, provided to the counsel was nothing but an
exercise in futility.
... ... ...
47. We have carefully perused the arrest memo
(Annexure P-7) and find that the same nowhere
conveys the grounds on which the accused was being
arrested. The arrest memo is simply a pro forma
indicating the formal "reasons" for which the accused
was being arrested.
48. It may be reiterated at the cost of repetition
that there is a significant difference in the phrase
"reasons for arrest" and "grounds of arrest". The
17
"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 "grounds
of arrest" would invariably be personal to the accused
and cannot be equated with the "reasons of arrest"
which are general in nature.
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 or his
counsel before passing of the order of remand dated 4-10-
2023 which vitiates the arrest and subsequent remand of the
appellant.
50. As a result, the appellant is entitled to a
direction for release from custody by applying the
ratio of the judgment rendered by this Court in Pankaj
Bansal [Pankaj Bansal v. Union of India, (2024) 7 SCC
576] .
51. Accordingly, the arrest of the appellant followed
by remand order dated 4-10-2023 and so also the impugned
order passed by the High Court of Delhi dated 13-10-2023
[Prabir Purkayastha v. State (NCT of Delhi) Crl. MC No. 7278
18
of 2023 sub nom Amit Chakraborty v. State (NCT of Delhi),
(2023) 6 HCC (Del) 565] are hereby declared to be invalid in
the eye of the law and are quashed and set aside."
(Emphasis supplied)
The third judgment is in the case of ARVIND KEJRIWAL supra in
which the following paragraphs are relied on:
".... .... ....
16. Recently, in Prabir Purkayastha v. State (NCT
of Delhi), this Court reiterated the aforesaid principles
expounded in Pankaj Bansal (supra). The said
principles were applied to the pari
materia provisions of the Unlawful Activities
(Prevention) Act, 1967. The Court explained that
Section 19(1) of the PML Act is meant to serve a
higher purpose, and also to enforce the mandate of
Article 22(1) of the Constitution. The right to life and
personal liberty is sacrosanct, a fundamental right
guaranteed under Article 21 and protected by
Articles 20 and 22 of the Constitution. Reference was
made to the observations of this Court in Roy
V.D. v. State of Kerala that the right to be informed
about the grounds of arrest flows from Article 22(1) of
the Constitution and any infringement of this
fundamental right vitiates the process of arrest and
remand. The fact that the chargesheet has been filed
in the matter would not validate the otherwise
illegality and unconstitutionality committed at the time
of arrest and grant of remand custody of the accused.
Reference is also made to the principle behind
Article 22(5) of the Constitution. Thus, this Court held
that not complying with the constitutional mandate
under Article 22(1) and the statutory mandate of the
UAPA, on the requirement to communicate grounds of
arrest or grounds of detention, would lead to the
custody or detention being rendered illegal.
... ... ...
19
28. Providing the written "grounds of arrest",
though a must, does not in itself satisfy the
compliance requirement. The authorized officer's
genuine belief and reasoning based on the evidence
that establishes the arrestee's guilt is also the legal
necessity. As the "reasons to believe" are accorded by
the authorised officer, the onus to establish
satisfaction of the said condition will be on the DoE
and not on the arrestee.
... ... ...
73. In Prabir Purkayastha (supra), this Court
went beyond the rigours of the PML Act/UAPA.
Drawing a distinction between "reasons to arrest" and
"grounds for arrest", it held that while the former
refers to the formal parameters, the latter would
require all such details in the hands of the
investigating officer necessitating the arrest. Thus, the
grounds of arrest would be personal to the accused."
(Emphasis supplied)
11. There can be no qualm about the principles so laid down
by the Apex Court in the afore-quoted judgments. In all the cases,
the Apex Court was considering the purport and importance of the
statutes, the statutes I mean, Unlawful Activities (Prevention)
Act, 1967 ('UAPA' for short) and the Prevention of Money
Laundering Act, 2002 ('PMLA' for short). The Apex Court, in
the case of PANKAJ BANSAL supra, interpreted Section 19 of
PMLA and in the case of PRABIR PURKAYASTHA supra
interpreted Sections 43, 43A and 43B of UAPA. Again, in the case
20
of ARVIND KEJRIWAL the Apex Court follows the aforesaid two
judgments. The Apex Court was thus considering the mandate of
the statutes as aforesaid. The Apex Court has further directed that
the finding in PANKAJ BANSAL is prospective, so does the other
judgments. Though, the Apex Court considers it to be prospective,
the applicability of the elucidation to the facts obtaining in the case
at hand is necessary to be noticed. Therefore, I deem it appropriate
to notice those provisions of the UAPA and PMLA that the Apex
Court considers. Sections 43, 43A and 43B of UAPA read as follows:
"43. Officers competent to investigate offences
under Chapters IV and VI.--Notwithstanding anything
contained in the Code, no police officer,--
(a) in the case of the Delhi Special Police Establishment,
constituted under sub-section (1) of Section 2 of the
Delhi Special Police Establishment Act, 1946, below
the rank of a Deputy Superintendent of Police or a
police officer of equivalent rank;
(b) in the metropolitan areas of Mumbai, Kolkata, Chennai
and Ahmedabad and any other metropolitan area
notified as such under sub-section (1) of Section 8 of
the Code, below the rank of an Assistant
Commissioner of Police;
(ba) in the case of National Investigation Agency, below the
rank of Inspector;
(c) in any case not relatable to clause (a) or clause (b) or
clause (ba), below the rank of a Deputy
21
Superintendent of Police or a police officer of an
equivalent rank,
shall investigate any offence punishable under Chapter IV or
VI.
43-A. Power to arrest, search, etc.--Any officer of
the Designated Authority empowered in this behalf, by
general or special order of the Central Government or the
State Government, as the case may be, knowing of a design
to commit any offence under this Act or has reason to
believe from personal knowledge or information given by any
person and taken in writing that any person has committed
an offence punishable under this Act or from any document,
article or any other thing which may furnish evidence of the
commission of such offence or from any illegally acquired
property or any document or other article which may furnish
evidence of holding any illegally acquired property which is
liable for seizure or freezing or forfeiture under this chapter
is kept or concealed in any building, conveyance or place,
may authorise any officer subordinate to him to arrest such a
person or search such building, conveyance or place whether
by day or by night or himself arrest such a person or search
a such building, conveyance or place.
43-B. Procedure of arrest, seizure, etc.--(1) Any
officer arresting a person under Section 43-A shall, as
soon as may be, inform him of the grounds for such
arrest.
(2) Every person arrested and article seized under
Section 43-A 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."
(Emphasis supplied)
22
Section 19 of the PMLA reads as follows:
"19. Power to arrest.--(1) If the Director, Deputy
Director, Assistant Director or any other officer authorised in
this behalf by the Central Government by general or special
order, has on the basis of material in his possession, reason
to believe (the reason for such belief to be recorded in
writing) that any person has been guilty of an offence
punishable under this Act, he may arrest such person and
shall, as soon as may be, inform him of the grounds for such
arrest.
(2) The Director, Deputy Director, Assistant Director or
any other officer shall, immediately after arrest of such
person under sub-section (1), forward a copy of the order
along with the material in his possession, referred to in that
sub-section, to the Adjudicating Authority, in a sealed
envelope, in the manner as may be prescribed and such
Adjudicating Authority shall keep such order and material for
such period, as may be prescribed.
(3) Every person arrested under sub-section (1) shall,
within twenty-four hours, be taken to a 76[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 77[Special Court or] Magistrate's Court."
12. Section 43-B of UAPA permits that any officer arresting a
person under this provision for offence punishable under Section
43-A, as soon as may be, inform him i.e., the person who is to be
arrested the grounds of such arrest. Likewise, under Section 19 of
PMLA which depicts power to arrest mandates that the officer
23
authorized by the Central Government has, on the basis of material
in his possession, reason to believe that any person who has been
guilty of an offence punishable under the Act, may arrest such
person and shall, as soon as may be, inform him of the grounds for
such arrest. Thus, the information to the person who is arrested of
the grounds of arrest is statutorily mandated in both the aforesaid
provisions. Therefore, the course would go this way. The Apex
Court in the case of PANKAJ BANSAL interprets Section 19 of
PMLA to hold that non-furnishing of grounds of arrest to the person
would vitiate the arrest; the Apex Court in PRABIR
PURKAYASTHA interprets Section 43-B of UAPA and holds that
grounds of arrest is necessary to be informed both under the
statute and under Article 22 (1) of the Constitution of India. Both
these judgments are followed in ARVIND KEJRIWAL supra again
interpreting Section 19 of the PMLA.
13. The issue now would be, whether the interpretation of the
Apex Court should be stretched to the offences under the IPC or
any other penal law for that matter. To consider this, I deem it
appropriate to notice Section 50 of the Cr.P.C. It reads as follows:
24
"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."
Section 50 of the Cr.P.C., has twin obligation to inform the grounds
of arrest and the right to be released on bail. Section 50 of the
Cr.P.C., has stood the test of time. Under the old code of 1898, as
amended in 1973, it did contain the mandate of grounds of arrest
as obtaining in Section 50. Section 50 of the Cr.P.C., mandates
information of the grounds of arrest to the accused.
14. Article 22 of the Constitution of India, for the first time,
emerges in 1950, as fundamental rights was not the one that was
in the Government of India Act, 1935. Therefore, Article 22 has
been in place since 1950. Section 50 of the Cr.P.C., has been in
place prior to the nation becoming a republic. It becomes a
germane to notice the constituent assembly debates on Article 22,
25
which bears consideration by the Apex Court, in the case of
MADHU LIMAYE4. The Apex Court observes as follows:
"10. Article 22(1) embodies a rule which has always
been regarded as vital and fundamental for safeguarding
personal liberty in all legal systems where the rule of law
prevails. For example, the 6th amendment to the
Constitution of the United States of America contains similar
provisions and so does article 34 of the Japanese
Constitution of 1946. In England whenever an arrest is made
without a warrant, the arrested person has a right to be
informed not only that he is being arrested but also of the
reasons or grounds for the arrest. The House of Lords
in Christie v. Leachinsky [(1947) 1 All ELR 567] went into the
origin and development of this rule. In the words of Viscount
Simon if a policeman who entertained a reasonable suspicion
that X had committed a felony were at liberty to arrest him
and march him off to a police station without giving any
explanation of why he was doing this, the prima facie right of
personal liberty would be gravely infringed. Viscount Simon
laid down several propositions which were not meant to be
exhaustive. For our purposes we may refer to the first and
the third:
"1. If a policeman arrests without warrant upon
reasonable suspicion of felony, or of other crime of a
sort which does not require a warrant, he must in
ordinary circumstances inform the person arrested of
the true ground of arrest. He is not entitled to keep
the reason to himself or to give a reason which is not
the true reason. In other words, a citizen is entitled to
know on what charge or on suspicion of what crime he
is seized.
2. * * *
3. The requirement that the person arrested
should be informed of the reason why he is seized
naturally does not exist if the circumstances are such
4
(1969) 1 SCC 292
26
that he must know the general nature of the alleged
offence for which he is detained."
Lord Simonds gave an illustration of the circumstances
where the accused must know why he is being
arrested.
There is no need to explain the reasons of arrest if the
arrested man is caught red-handed and the crime is
patent to high Heaven."
The two requirements of clause (1) of Article 22
are meant to afford the earliest opportunity to the
arrested person to remove any mistake,
misapprehension or misunderstanding in the minds of
the arresting authority and, also, to know exactly what
the accusation against him is so that he can exercise
the second right, namely, of consulting a legal
practitioner of his choice and to be defended by him.
Clause (2) of Article 22 provides the next and most
material safeguard that the arrested person must be
produced before a Magistrate within 24 hours of such
arrest so that an independent authority exercising
judicial powers may without delay apply its mind to his
case. The Criminal Procedure Code contains analogous
provisions in Sections 60 and 340 but our Constitution
makers were anxious to make these safeguards an
integral part of fundamental rights. This is what Dr
B.R. Ambedkar said while moving for insertion of
Article 15-A (as numbered in the Draft Bill of the
Constitution) which corresponded to present Article
22:
"Article 15-A merely lifts from the
provisions of the Criminal Procedure Code two of
the most fundamental principles which every
civilised country follows as principles of
international justice. It is quite true that these two
provisions contained in clause (1) and clause (2)
are already to be found in the Criminal Procedure
Code and thereby probably it might be said that
we are really not making any very fundamental
change. But we are, as I contend, making a
fundamental change because what we are doing
27
by the introduction of Article 15-A is to put a
limitation upon the authority both of Parliament as
well as of the Provincial Legislature not to
abrogate these two provisions, because they are
now introduced in our Constitution itself."
As stated in Ram Narayan Singh v. State of
Delhi [(1953) 1 SCC 389: AIR (1953) SC 277] this
Court has often reiterated that those who feel called
upon to deprive other persons of liberty in the
discharge of what they conceive to be their duty must,
strictly and scrupulously, observe the forms and rules
of law. Whenever that is not done the petitioner would
be entitled to a writ of habeas corpus directing his
release."
(Emphasis supplied)
The Apex Court interprets Article 22 to have twin objectives - one
the person who is arrested should know exactly what is the
accusation against him and two he should be produced before the
Magistrate within 24 hours of such arrest. The Apex Court also
notices the constituent assembly debates when the draft bill of the
Constitution was placed before the constituent assembly which was
Article 15-A. Therefore, the question with regard to whether Article
22 of the Constitution would become applicable to every kind of
arrest, had not been judicially interpreted till date. It is for the first
time, the Apex Court in the case of PANKAJ BANSAL or PRABIR
PURKAYASTHA has interpreted Article 22(1) to divulge the
28
grounds of arrest read with the statutory provisions which
mandate such divulgence. Article 22(1) has been interpreted by
the Apex Court in several judgments concerning preventive
detention. The Apex Court in JASEELA SHAJI v. UNION OF
INDIA5 holds as follows:
".... .... ....
23. In M. Ahamedkutty v. Union of India [M.
Ahamedkutty v. Union of India, (1990) 2 SCC 1 : 1990 SCC
(Cri) 258] , this Court was considering the issue as to
whether non-supply of the copies of the bail application and
the bail order vitiated the right of the detenu under Article
22(5) of the Constitution of India. After taking the survey of
the earlier judgments, this Court observed thus : (SCC pp.
12-13, paras 19-20)
"19. The next submission is that of non-supply
of the bail application and the bail order. This Court, as
was observed in Mangalbhai Motiram Patel v. State of
Maharashtra [Mangalbhai Motiram Patel v. State of
Maharashtra, (1980) 4 SCC 470 : 1981 SCC (Cri) 49]
has "forged" certain procedural safeguards for citizens
under preventive detention. The constitutional
imperatives in Article 22(5) are twofold : (1) The
detaining authority must, as soon as may be i.e. as
soon as practicable, after the detention
communicate to the detenu the grounds on which
the order of detention has been made, and (2) the
detaining authority must afford the detenu the
earliest opportunity of making the representation
against the order of detention. The right is to
make an effective representation and when some
documents are referred to or relied on in the
grounds of detention, without copies of such
documents, the grounds of detention would not be
5
2024 SCC OnLine SC 2496
29
complete. The detenu has, therefore, the right to
be furnished with the grounds of detention along
with the documents so referred to or relied on. If
there is failure or even delay in furnishing those
documents it would amount to denial of the right
to make an effective representation. This has been
settled by a long line of decisions : Ramchandra A.
Kamat v. Union of India [Ramchandra A. Kamat v. Union
of India, (1980) 2 SCC 270 : 1980 SCC (Cri) 414] ,
Frances Coralie Mullin v. W.C. Khambra [Frances Coralie
Mullin v. W.C. Khambra, (1980) 2 SCC 275 : 1980 SCC
(Cri) 419] , Icchu Devi Choraria v. Union of India [Icchu
Devi Choraria v. Union of India, (1980) 4 SCC 531 :
1981 SCC (Cri) 25] , Pritam Nath Hoon v. Union of India
[Pritam Nath Hoon v. Union of India, (1980) 4 SCC 525
: 1981 SCC (Cri) 19] , Tushar Thakker v. Union of India
[Tushar Thakker v. Union of India, (1980) 4 SCC 499 :
1981 SCC (Cri) 13] , Lallubhai Jogibhai Patel v. Union of
India [Lallubhai Jogibhai Patel v. Union of India, (1981)
2 SCC 427 : 1981 SCC (Cri) 463] , Kirit Kumar Chaman
Lal Kundaliya v. Union of India [Kirit Kumar Chaman Lal
Kundaliya v. Union of India, (1981) 2 SCC 436 : 1981
SCC (Cri) 471] and Ana Carelina D'Souza v. Union of
India [Ana Carelina D'Souza v. Union of India, 1981
Supp SCC 53 (1) : 1982 SCC (Cri) 131(1)] .
20. It is immaterial whether the detenu
already knew about their contents or not. In Mehrunisa
v. State of Maharashtra [Mehrunisa v. State of
Maharashtra, (1981) 2 SCC 709 : 1981 SCC (Cri) 592] it
was held that the fact that the detenu was aware of the
contents of the documents not furnished was immaterial
and non-furnishing of the copy of the seizure list was
held to be fatal. To appreciate this point one has to bear
in mind that the detenu is in jail and has no access to
his own documents. In Mohd. Zakir v. State (UT of
Delhi) [Mohd. Zakir v. State (UT of Delhi), (1982) 3 SCC
216 : 1982 SCC (Cri) 695] it was reiterated that it being
a constitutional imperative for the detaining authority to
give the documents relied on and referred to in the
order of detention pari passu the grounds of detention,
those should be furnished at the earliest so that the
detenu could make an effective representation
immediately instead of waiting for the documents to be
supplied with. The question of demanding the
30
documents was wholly irrelevant and the infirmity in
that regard was violative of constitutional safeguards
enshrined in Article 22(5)."
(emphasis supplied)
24. It can thus be seen that this Court in M.
Ahamedkutty [M. Ahamedkutty v. Union of India,
(1990) 2 SCC 1 : 1990 SCC (Cri) 258] , in unequivocal
terms, has held that the constitutional requirements
under Article 22(5) of the Constitution of India are
twofold viz. : (1) the detaining authority must, as
soon as practicable, after the detention communicate
to the detenu the grounds on which the order of
detention has been made, and (2) the detaining
authority must afford the detenu the earliest
opportunity of making the representation against the
order of detention. It has further been held that the
right is to make an effective representation and
when some documents are referred to or relied on in
the grounds of detention, without copies of such
documents, the grounds of detention would not be
complete. In unequivocal terms, it has been held that
the detenu has the right to be furnished with the
grounds of detention along with the documents so
referred to or relied on. It has been held that failure
or even delay in furnishing those documents would
amount to denial of the right to make an effective
representation.
.... .... ....
29. There can be no doubt that it is not necessary to
furnish copies of each and every document to which a
casual or passing reference may be made in the narration
of facts and which are not relied upon by the detaining
authority in making the order of detention. However,
failure to furnish copies of such
document/documents as is/are relied on by the
detaining authority which would deprive the detenu
to make an effective representation would certainly
amount to violation of the fundamental right
31
guaranteed under Article 22(5) of the Constitution of
India."
(Emphasis supplied)
This was a case of preventive detention under COFEPOSA. The Apex
Court long before the afore-quoted judgment has, in the case of
preventive detention, held that grounds of arrest under Article
22(5) of the Constitution has mandatorily to be made known to the
detenue. The Apex Court in the case of PRABHU DAYAL DEORAH
v. DISTRICT MAGISTRATE, KAMRUP6 has held as follows:
".... .... ....
16. We think that the fact that the Advisory Board
would have to consider the representations of the petitioners
where they have also raised the contention that the grounds
are vague would not in any way prevent this Court from
exercising its jurisdiction under Article 32 of the Constitution.
The detenue has a right under Article 22(5) of the
Constitution to be afforded the earliest opportunity of making
a representation against the order of detention. That
constitutional right includes within its compass the right to
be furnished with adequate particulars of the grounds of the
detention order. And, if their constitutional right is violated,
they have every right to come to this Court under Article 32
complaining that their detention is bad as violating their
fundamental right. As to what the Advisory Board might do
in the exercise of its jurisdiction is not the concern of this
Court. This Court is only concerned with the question
whether any of the grounds communicated to the petitioners
was vague which would preclude them from making an
effective representation. We do not think that because the
representations of the petitioners are pending consideration
6
(1974) 1 SCC 103
32
before the Advisory Board and the Advisory Board would also
go into the question of the vagueness of the grounds
communicated to them, this Court should not exercise its
jurisdiction under Article 32. In other words, we cannot
agree with the proposition that because the Advisory Board
was seized of the matter when the writ petitions were filed
and would also consider the contention of the petitioners in
their representations that the grounds were vague, we
should not interfere with the orders of detention on the score
that one of the grounds communicated to the petitioners was
vague.
... ... ...
19. If a ground communicated to the detenue is
vague, the fact that the detenue could have, but did not, ask
for further particulars is immaterial. That would be relevant
only for considering the question whether the ground is
vague or not.
... ... ...
21. The facts of the cases might induce mournful
reflection how an honest attempt by an authority charged
with the duty of taking prophylactic measures to secure the
maintenance of supplies and services essential to the
community has been frustrated by what is popularly called a
technical error. We say and we think it is necessary to
repeat, that the gravity of the evil to the community
resulting from anti-social activities can never furnish an
adequate reason for invading the personal liberty of a citizen,
except in accordance with the procedure established by the
Constitution and the laws. The history of personal liberty is
largely the history of insistence on observance of procedure.
And observance of procedure has been the bastion against
wanton assaults on personal liberty over the years. Under
our Constitution, the only guarantee of personal liberty for a
person is that he shall not be deprived of it except in
accordance with the procedure established by law. The need
today for maintenance of supplies and services essential to
the community cannot be over-emphasized. There will be no
social security without maintenance of adequate supplies and
services essential to the community. But social security is
not the only goal of a good society. There are other values in
a society. Our country is taking singular pride in the
democratic ideals enshrined in its constitution and the most
33
cherished of these ideals is personal liberty. It would indeed
be ironic if, in the name of social security, we would sanction
the subversion of this liberty. We do not pause to consider
whether social security is more precious than personal liberty
in the scale of values, for, any judgment as regards that
would be but a value judgment on which opinions might
differ. But whatever be of impact on the maintenance of
supplies and services essential to the community, when a
certain procedure is prescribed by the Constitution or the
laws for depriving a citizen of his personal liberty, we think it
our duty to see that that procedure is rigorously observed,
however strange this might sound to some ears."
Again, the Apex Court in the case of HARADHAN SAHA v. STATE
OF WEST BENGAL7 has held as follows:-
".... .... ....
23. The Preventive Detention Act of 1950 was
considered by this Court and it is an established rule of
this Court that a detenu has a right to be apprised of
all the materials on which the order of detention is
based or approved. The only exception is as provided
in clauses (6) and (8) (sic) of Article 22 where it is not
necessary to disclose facts which may be considered
to be against the public interest to disclose.
... ... ...
25. The representation is to be considered by the
Advisory Board by following the substance of natural justice
as far as it is consistent with the nature of the impugned Act,
the nature of the relative jurisdiction of the Government and
of the Advisory Board. Procedural reasonableness for natural
justice flows from Article 19. Article 22(5) speaks of
liberty and making of representation. The combined
7
(1975) 3 SCC 198
34
result of clauses (4), (5) and (6) of Article 22 is that a
procedure which permits representation will give all
the facts before the Board. Article 22(5) shows that
law as to detention is necessary. The requirements of
that law are to be found in Article 22. Article 22 gives
the mandate as to what will happen in such
circumstances.
... ... ...
31. Article 22 which provides for preventive
detention lays down substantive limitations as well as
procedural safeguards. The principles of natural
justice insofar as they are compatible with detention
laws find place in Article 22 itself and also in the Act.
Even if Article 19 be examined in regard to preventive
detention, it does not increase the content of
reasonableness required to be observed in respect of
orders of preventive detention. The procedure in the
Act provides for fair consideration to the
representation. Whether in a particular case, a detenu
has not been afforded an opportunity of making a
representation or whether the detaining authority is
abusing the powers of detention can be brought before
the court of law."
(Emphasis supplied)
In the aforesaid case, the Apex Court was considering preventive
detention either under COFEPOSA or under the Maintenance of
Internal Security Act, 1971 ('MISA' for short). The Apex Court
again in AMEENA BEGUM v. STATE OF TELANGANA8 holds as
follows:
8
(2023) 9 SCC 587
35
".... .... ....
10. Clauses (1) and (2) of Article 22 of the
Constitution guaranteeing protection to a person
against arbitrary arrest, effected otherwise than under
a warrant issued by a court of law, are regarded as
vital and fundamental for safeguarding personal
liberty. Nonetheless, the protection so guaranteed is
subject to clause (3) of Article 22 which operates as
an exception to clauses (1) and (2) and ordains that
nothing therein shall apply to, inter alia, any person
who is arrested or detained under any law providing
for preventive detention. The purpose of preventive
detention, as said by Hon'ble A.N. Ray, C.J.
in HaradhanSaha v. State of W.B. [HaradhanSaha v. State of W.B., (1975) 3 SCC 198: 1974 SCC (Cri) 816] is to prevent the greater evil of elements imperilling the security and safety of a State, and the welfare of the Nation. Preventive detention, though a draconian and dreaded measure, is permitted by the Constitution itself but subject to the safeguards that are part of the relevant article and those carved out by the constitutional courts through judicial decisions of high authority which have stood the test of time.
11. It is common knowledge that recourse to preventive detention can be taken by the executive merely on suspicion and as a precaution to prevent activities by the person, sought to be detained, prejudicial to certain specified objects traceable in a validly enacted law. Since an order of preventive detention has the effect of invading one's personal liberty merely on suspicion and is not viewed as punitive, and the facts on which the subjective satisfaction of the detaining authority is based for ordering preventive detention is not justiciable, meaning thereby that it is not open to the constitutional courts to enquire whether the detaining authority has erroneously or correctly reached a satisfaction on every question of fact and/or has passed an order of detention which is not justified on facts, resulting in narrowing down of the jurisdiction to grant relief, it is only just and proper that such drastic power is not only invoked in appropriate cases but is also exercised responsibly, rationally and reasonably. Having regard to the circumstance of loss of liberty by reason of an order of preventive detention being 36 enforced without the detenu being extended any opportunity to place his case, the constitutional courts being the protectors of Fundamental Rights have, however, never hesitated to interdict orders of detention suffering from any of the vices on the existence whereof such limited jurisdiction of judicial reviewability is available to be exercised."
(Emphasis supplied) The Apex Court follows all the aforesaid judgments except the one of 2024. What would unmistakably emerge from the elucidation qua Article 22 by the Apex Court is that under the preventive detention laws of any kind, be it COFEPOSA, MISA or any other provision which permits prevention detention, grounds of such detention should be made known to the detenue. The Apex Court has thus interpreted Articles 22(1) and (2) of the Constitution of India to become applicable and restrictable to preventive detention cases.
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 37 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 the Cr.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 38 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.
17. Since heavy reliance is placed on three judgments quoted supra by the learned senior counsel for the petitioner contending that they should be followed to all offences and not restricted to PMLA or UAPA, I deem it appropriate or rather become apposite to refer to the judgment of the Apex Court in HARYANA FINANCIAL CORPORATION v. JAGDAMBA OIL MILLS9 wherein it is held as follows:
".... .... ....
19. 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. Judgments of courts are not to be construed as statutes. To interpret words, phrases and provisions of a statute, it may become necessary for Judges to embark upon lengthy discussions but the discussion is meant to explain and not to define. Judges interpret statutes, they do not interpret judgments. They interpret words of statutes, their words are not to be interpreted as statutes. In London Graving Dock Co. Ltd. v. Horton [1951 AC 737 : (1951) 2 All 9 (2002) 3 SCC 496 39 ER 1 (HL)] (at p. 761) Lord MacDermot observed : (All ER p. 14C-D) "The matter cannot, of course, be settled merely by treating the ipsissima verba of Willes, J., as though they were part of an Act of Parliament and applying the rules of interpretation appropriate thereto. This is not to detract from the great weight to be given to the language actually used by that most distinguished Judge."
20. In Home Office v. Dorset Yacht Co. [(1970) 2 All ER 294: 1970 AC 1004 (HL)] Lord Reid said (at All ER p. 297g-h), "Lord Atkin's speech ... is not to be treated as if it were a statutory definition. It will require qualification in new circumstances". Megarry, J. in (1971) 1 WLR 1062 observed:"One must not, of course, construe even a reserved judgment of even Russell, L.J. as if it were an Act of Parliament." And, in Herrington v. British Railways Board [(1972) 2 WLR 537 [sub nom British Railway Board v. Herrington, (1972) 1 All ER 749 (HL)]] Lord Morris said: (All ER p. 761c) "There is always peril in treating the words of a speech or a judgment as though they were words in a legislative enactment, and it is to be remembered that judicial utterances are made in the setting of the facts of a particular case."
21. Circumstantial flexibility, one additional or different fact may make a world of difference between conclusions in two cases. Disposal of cases by blindly placing reliance on a decision is not proper.
22. The following words of Hidayatullah, J. in the matter of applying precedents have become locus classicus :
(Abdul Kayoom v. CIT [AIR 1962 SC 680] , AIR p. 688, para
19) "19. ... Each case depends on its own facts and a close similarity between one case and another is not enough because even a single significant detail may 40 alter the entire aspect. In deciding such cases, one should avoid the temptation to decide cases (as said by Cardozo) by matching the colour of one case against the colour of another. To decide, therefore, on which side of the line a case falls, the broad resemblance to another case is not at all decisive."
*** "Precedent should be followed only so far as it marks the path of justice, but you must cut the dead wood and trim off the side branches else you will find yourself lost in thickets and branches. My plea is to keep the path to justice clear of obstructions which could impede it."
(Emphasis supplied) Later the Apex Court in the case of UNION OF INDIA V. MAJOR BAHADUR SINGH10, has held as follows:
".... .... ....
9. 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 the courts are neither to be read as Euclid's theorems nor as provisions of the statute and that too taken out of their context. These observations must be read in the context in which they appear to have been stated. Judgments of the courts are not to be construed as statutes. To interpret words, phrases and provisions of a statute, it may become necessary for judges to embark into lengthy discussions but the discussion is meant to explain and not to define. Judges interpret statutes, they do not interpret judgments. They interpret words of statutes; their words are not to be interpreted as statutes. In London Graving Dock Co. Ltd. v. Horton [1951 AC 737 : (1951) 2 All ER 1 (HL)] Lord MacDermott observed : (All ER p. 14 C-D) 10 (2006)1 SCC 368 41 "The matter cannot, of course, be settled merely by treating the ipsissima verba of Willes, J., as though they were part of an Act of Parliament and applying the rules of interpretation appropriate thereto. This is not to detract from the great weight to be given to the language actually used by that most distinguished judge...."
10. In Home Office v. Dorset Yacht Co. [(1970) 2 All ER 294 : 1970 AC 1004 : (1970) 2 WLR 1140 (HL)] Lord Reid said : (All ER p. 297g-h) "Lord Atkin's speech ... is not to be treated as if it were a statutory definition. It will require qualification in new circumstances."
Megarry, J. in Shepherd Homes Ltd. v. Sandham (No.
2) [(1971) 1 WLR 1062 : (1971) 2 All ER 1267] observed :
(All ER p. 1274d-e) "One must not, of course, construe even a reserved judgment of even Russell, L.J. as if it were an Act of Parliament;" and, in Herrington v. British Railways Board [(1972) 2 WLR 537 : (1972) 1 All ER 749 : 1972 AC 877 (HL)] Lord Morris said : (All ER p. 761c) "There is always peril in treating the words of a speech or a judgment as though they were words in a legislative enactment, and it is to be remembered that judicial utterances are made in the setting of the facts of a particular case."
11. Circumstantial flexibility, one additional or different fact may make a world of difference between conclusions in two cases. Disposal of cases by blindly placing reliance on a decision is not proper.
12. The following words of Hidayatullah, J. in the matter of applying precedents have become locus classicus :
(Abdul Kayoom v. CIT [AIR 1962 SC 680] , AIR p. 688, para
19) "19. ... Each case depends on its own facts and a close similarity between one case and another is not 42 enough because even a single significant detail may alter the entire aspect, in deciding such cases, one should avoid the temptation to decide cases (as said by Cardozo) by matching the colour of one case against the colour of another. To decide, therefore, on which side of the line a case falls, the broad resemblance to another case is not at all decisive."
*** "Precedent should be followed only so far as it marks the path of justice, but you must cut the dead wood and trim off the side branches, else you will find yourself lost in thickets and branches. My plea is to keep the path to justice clear of obstructions which could impede it."
(Emphasis supplied) The Apex Court, in the afore-quoted judgments, would hold that the judgment should be considered qua the facts obtaining in each of the cases. There is always peril in treating words of a judgment of judicial utterance de hors the facts of a particular case and plainly placing reliance on a decision is not proper. The Apex Court further holds that each case depends on its own facts and close similarity between one case and another is not enough because even a single significant detail may alter the entire aspect. If what is held by the Apex Court in the aforementioned judgment is considered qua the facts obtaining in the case at hand, what would unmistakably emerge is what is ingrained in the Cr.P.C., qua Section 50 should 43 necessarily be followed and the information of grounds of arrest in the manner in which the Apex Court has held in PANKAJ BANSAL, PRABIR PURKYASTHA or even ARVIND KEJRIWAL would not become applicable to the offences under the KCOCA or the IPC or any arrest under any penal law except in cases of prevention of detention.
18. In the light of the preceding analysis, the information of arrest that is indicated to the petitioner would suffice, as the remand order contains elaborate reasons for permitting judicial custody of the accused, in the case at hand the petitioner. Both the compliances of information of grounds of arrest and the observations in the remand order would lead to non-acceptance of the submission of the learned senior counsel for the petitioner.
However, it is made clear that Section 50 of the Cr.P.C., must necessarily be followed and information or grounds of arrest as is done in the case at hand must necessarily be indicated to every accused who is to be arrested under the general law. If the arrest is under PMLA or UAPA, what the Apex Court in the afore-quoted 44 judgments laid down would straight away become applicable and non-divulgence would vitiate the arrest.
19. For the aforesaid reasons, the petition lacking in merit, stands rejected.
This Court places on record its appreciation to the assistance rendered by the Sri B N Jagadeesha, learned Additional State Public Prosecutor.
Sd/-
(M. NAGAPRASANNA) JUDGE bkp CT:MJ