Karnataka High Court
John Moses D @ Madan Kumar vs State Of Karnataka on 28 November, 2024
Author: S Vishwajith Shetty
Bench: S Vishwajith Shetty
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CRL.P No. 9537 of 2024
R
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 28TH DAY OF NOVEMBER, 2024
BEFORE
THE HON'BLE MR JUSTICE S VISHWAJITH SHETTY
CRIMINAL PETITION NO. 9537 OF 2024
BETWEEN:
JOHN MOSES D @
MADAN KUMAR
S/O JOHN DEVAMANI
AGED ABOUT 47 YEARS
R/AT NO. 201, 2ND FLOOR
KAVITHA RESIDENCY
MARUTHI SEVA NAGARA
BENGALURU - 560 033.
...PETITIONER
(BY SRI SANDESH CHOUTA, SR. COUNSEL FOR
SRI SUNIL KUMAR S, ADV.)
AND:
STATE OF KARNATAKA
BY BHARATI NAGAR P.S
Digitally NOW INVESTIGATION BY
signed by CID SPECIAL ENQUIRY WING
NANDINI MS REP. BY SPP, HIGH COURT
Location:
High Court of BUILDING, BANGALORE - 560 001.
Karnataka ...RESPONDENT
(BY SRI ASHOK N NAIK, SPP)
THIS CRL.P. IS FILED U/S.439 CR.P.C PRAYING TO CRL.P
FILED U/S.439 CR.P.C (U/S 483 BNSS) PRAYING TO ENLARGE THE
PETITIONER/ACCUSED NO.1 ON REGULAR BAIL IN CR.NO.8/2022,
FOR OFFENCES P/U/S 465, 468, 471, 420, 417, 120(B), 34 OF IPC,
WHCIH IS NOW PENDING BEFORE THE HONBLE PRINCIPAL CITY
CIVIL AND SESSIONS JUDGE AT BENGALURU (CCH-1).
THIS PETITION HAVING BEEN HEARD AND RESEVED FOR
ORDERS ON 21.11.2024, COMING ON FOR PRONOUNCEMENT, THIS
DAY, THE COURT MADE THE FOLLOWING:
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CORAM: HON'BLE MR JUSTICE S VISHWAJITH SHETTY
CAV ORDER
1. Accused no.1 in Crime No.8/2022 registered by Bharathi
Nagar Police Station, Bengaluru City, for the offences
punishable under Sections 465, 468, 471, 420, 417, 120B, 34
IPC and Section 3 of Karnataka Control of Organised Crime Act,
2000 (for short, 'KCOCA'), is before this Court under Section
483 of BNSS, 2023, seeking regular bail.
2. Heard the learned Counsel for the parties.
3. FIR in Crime No.8/2022 was registered by Bharathi Nagar
Police Station, Bengaluru City, for the aforesaid offences
against the petitioner herein and others on the basis of the first
information dated 25.01.2022 received from C.Bhaskar,
Inspector of Police, Special Investigation Team, CID,
Bengaluru. In the said case, requisition seeking body warrant of
the petitioner who was arrested on 28.05.2024 in Crime
No.467/2021 registered by Banaswadi Police Station, Bengaluru
City, for similar offences, was filed before the jurisdictional
court of Magistrate and he was produced before the
jurisdictional Magistrate in Crime No.8/2022 on 15.07.2024 and
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remanded to police custody for a period of six days.
Subsequently, he was remanded to judicial custody in the main
case i.e., Crime No.467/2021. Petitioner who was granted bail
in Crime No.467/2021 was released from the Central Prision,
Parappana Agrahara, Bengaluru, on 21.07.2024 and
immediately thereafter, he was arrested in the present case. In
the meanwhile, on 20.07.2024, the competent authority had
granted prior approval for invocation of the provisions of
KCOCA against the accused in Crime No.8/2022, and therefore,
the petitioner who was arrested on 21.07.2024 was produced
before the Special Court on 22.07.2024 and remanded to
judicial custody. Bail application filed by the petitioner before
the Special Court under Section 439 Cr.PC was thereafter
rejected on 03.09.2024. Therefore, the petitioner is before this
Court.
4. Learned Senior Counsel appearing for the petitioner
submits that FIR in Crime No.8/2022 was initially registered for
the offences punishable under Sections 465, 468, 471, 420,
417, 120B, 34 IPC. Multiple FIRs of similar nature have been
registered against the petitioner and in all the cases wherein he
was arrested, petitioner has been granted regular bail.
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Therefore, the provisions of KCOCA has been belatedly invoked
in the present case. Initially, the Court of Magistrate had
refused to remand the petitioner to judicial custody in the
present case. Thereafter, he was released from the prison and
the police have arrested him immediately and produced him
before the Special Court which has remanded him to judicial
custody. Investigation of the case is completed, and therefore,
petitioner's custody is no more required. The grounds of arrest
were not served on the petitioner on the date of his arrest.
Therefore, petitioner's remand is bad in law. In support of his
arguments, he has placed reliance on the following judgments:
(i) PANKAJ BANSAL VS UNION OF INDIA -
(2024)7 SCC 576;
(ii) PRABIR PURKAYASTHA VS STATE (NCT OF
DELHI) - 2024 SCC OnLine SC 934;
(iii) ARVIND KEJRIWAL VS DIRECTORATE OF
ENFORCEMENT - 2024 SCC OnLine SC 1703;
(iv) SYED SAJJAD ALI VS THE SENIOR
INTELLIGENCE OFFICER -
CRL.P.No.5435/2024 disposed of on
05.07.2024;
(v) MAHESH PANDURANG NAIK VS THE STATE
OF MAHARASHTRA & ANR. - W.P.(ST)
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CRL.P No. 9537 of 2024
No.13835/2024, DISPOSED OF ON
18.07.2024;
(vi) HEM PRABHAKAR SHAH VS STATE OF
MAHARASHTRA - 2024 SCC OnLine Bom
3006;
(vii) RAJASHREE BHAUSAHEB VIKHE PATIL VS
THE STATE OF MAHARASHTRA -
W.P.No.3476/2024 disposed of on
22.08.2024;
(viii) SACHIN MAHIPATI NIMBALKAR VS STATE OF
MAHARASHTRA THROUGH KARAD CITY
POLICE STATION - 2024 SCC OnLine Bom
3493;
(ix) MANULLA M.KANCHWALA VS THE STATE OF
MAHARASHTRA - CRIMINAL WRIT PETITION
No.3276/2024 disposed of on 14.08.2024;
(x) KVR VIDYASAGAR VS STATE OF ANDHRA
PRADESH & OTHERS - 2024 SCC OnLine AP
4844.
5. Learned Senior Counsel further submits that remand
cannot be made blindly without application of mind, and in this
regard, he has placed reliance on the judgment of the Hon'ble
Supreme Court in the case of TUSHARBHAI RANJINIKANTBHAI
SHAH VS STATE OF GUJARAT - 2024 SCC OnLine SC 1897. He
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refers to Section 50(1) of Cr.PC and Articles 22(1) & 22(5) of
the Constitution of India and submits that service of grounds of
arrest on the accused immediately after his arrest is mandatory
and failure to do so would entitle the accused for bail. He,
accordingly, prays to allow the petition.
6. Per contra, learned Special Public Prosecutor who has
opposed the petition by filing statement of objections, submits
that petitioner who was served with an intimation notice on
21.07.2024 immediately after his arrest, has acknowledged the
receipt of the said notice. The said notice is in compliance of
the requirement of Section 50(1) of Cr.PC and Article 22(1) of
the Constitution of India. Petitioner who was arrested in Crime
No.467/2021 registered by Banaswadi Police Station, Bengaluru
City, was produced under body warrant in the present case on
15.07.2024. The prosecution has filed two remand applications
in Crime No.8/2022 on 15.07.2024 and 18.07.2024. In the
remand applications dated 15.07.2024 and 18.07.2024, the
facts and particulars of the case in Crime No.8/2022 is briefly
explained and the grounds on which petitioner's police custody
is sought is also mentioned. In addition to the same,
immediately after the arrest of the petitioner on 21.07.2024, he
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has been served with the intimation notice in which the brief
facts of the case and invoking of the provisions of KCOCA
against the petitioner is mentioned. Therefore, there is no merit
in the contention urged on behalf of the petitioner that grounds
of arrest was not served on the petitioner immediately after his
arrest. He submits that the intimation notice dated 21.07.2024
and remand applications dated 15.07.2024 and 18.07.2024 are
in compliance of the requirement of Section 50(1) of Cr.PC and
Article 22(1) of the Constitution of India. In support of this
argument of his, he has placed reliance on the judgment of the
Hon'ble Supreme Court in the case of RAM KISHOR ARORA VS
DIRECTORATE OF ENFORCEMENT - (2024)7 SCC 599. He also
submits that nomenclature of the document would become
irrelevant and only its contents matters and in support of this
argument of his, he has placed reliance on the judgment of the
Hon'ble Supreme Court in the case of TAMBOLI RAMANLOL
MOTILAL VS GHANCHI CHIMANLAL KESHAVLAL (DEAD) BY
LRS. AND ANOTHER - 1993 Supp (1) SCC 295, and also on the
judgment of the Madras High Court in the case of
V.DHANASINGU & OTHERS VS JAYACHANDRAN @
JAYASANKAR & ANOTHER - S.A.No.536/2012 and
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M.P.No.1/2012. He submits that since petitioner was produced
before the court under body warrant in Crime No.8/2022 and
remand application seeking his police custody was filed by the
prosecution, there was no necessity for serving a separate
communication informing the grounds of arrest to the petitioner
in the present case and in support of this argument of his, he
has placed reliance on the judgment of the Hon'ble Supreme
Court in the case of ARVIND KEJRIWAL VS CENTRAL BUREAU
OF INVESTIGATION - 2024 SCC OnLine SC 2550. He refers to
the order sheet of the learned Magistrate in Crime No.8/2022
and submits that petitioner was represented by an Advocate
when the remand application was filed by the prosecution. He
submits that on 20.07.2024, the learned Magistrate had not
remanded petitioner to judicial custody for the reason that, by
then already the provisions of KCOCA was invoked, and
therefore, the learned Magistrate had not jurisdiction to remand
him to judicial custody, and therefore, petitioner was remanded
in the main case. He submits that the petitioner is involved in
more than 100 cases of similar nature and considering the
seriousness and gravity of the crime committed, the coordinate
bench of this Court in W.P.No.7714/2020 disposed of on
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04.11.2020, had directed the Registrar of Court of Small
Causes, Bengaluru, to institute police investigation. He submits
that petitioner is the kingpin of the syndicate which is involved
in committing organized crimes. Accordingly, he prays to
dismiss the petition.
7. FIR in Crime No.8/2022 was registered by Bharathi Nagar
Police Station, Bengaluru City, initially for the offences
punishable under Sections 465, 468, 471, 420, 417, 120B, 34
IPC against the petitioner herein and others on the basis of the
first information dated 25.01.2022 received from C.Bhaskar,
Inspector of Police, Special Investigation Team, CID,
Bengaluru. In the FIR, it is alleged that fraudulent documents
were created in respect of properties bearing Sy. Nos.10/3,
10/4, 10/5, 10/6 & 10/7 situated at Shivanachetty Garden, St.
John's Road, Bengaluru, and on the basis of the said
documents, ejectment suit in S.C.No.1262/2018 was filed
before the Court of Small Causes Judge, Bengaluru, and in the
said proceedings, clandestinely compromise decree was
obtained, and thereafter execution proceedings were initiated in
Execution No.1672/2018. In the execution proceedings,
delivery warrant was sought to be executed against the original
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tenant who was not even a party to the proceedings before the
Civil Court. Applications were also filed for breaking open the
door of the premises, in respect of which, delivery warrant was
issued in the execution proceedings and based on the same,
the original tenant was evicted from the premises which was
subject matter of the aforesaid civil proceedings. The material
on record would go to show that petitioner and other accused
persons who are his accomplices instituted about 116 such
proceedings before various courts in Bengaluru and they have
collected crores of rupees from the original tenants who were in
occupation of the premises by threatening them of eviction. As
against the petitioner, more than 110 criminal cases of similar
nature have been registered in various police stations in
Bengaluru, and out of the same, 108 cases have been referred
to CID for the purpose of investigation. The investigating
agency appears to have laid charge sheet in 51 cases and the
remainig cases are pending investigation. The coordinate bench
of this Court in W.P.No.7714/2020 disposed of on 04.11.2020
recognizing the seriousness of the acts committed by the
accused persons in these cases, has directed the Registrar of
Small Causes Court, Bengaluru, to initiate action including
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police investigation even against the staff of the courts, if found
involved. Having regard to the acts committed by the accused
persons in an organized manner, the competent authority by
order dated 20.07.2024 has granted prior approval to invoke
the provisions of KCOCA in this case, and therefore, the present
case is now transferred to the Special Judge designated for trial
of the cases instituted under the provisions of KCOCA, who has
now rejected the bail application of the petitioner.
8. The Principal contention of the learned Senior Counsel for
the petitioner in the present case is that grounds of arrest was
not served on the petitioner immediately after his arrest on
21.07.2024, and therefore, there is violation of the petitioner's
rights guaranteed under Section 50(1) of Cr.PC and Article
22(1) of the Constitution of India, which entitles bail to the
petitioner. According to the learned Senior Counsel for the
petitioner, the remand order passed by the Special Judge,
therefore, is bad in law.
9. The Hon'ble Supreme Court in the case of Pankaj Bansal's
case supra, at paragraphs 34, 35, 38 to 45, has observed as
under:
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"34. The more important issue presently is as to
how ED is required to "inform" the arrested person of
the grounds for his/her arrest. Prayer (iii) in the writ
petitions filed by the appellants pertained to this.
35. Section 19 does not specify in clear terms as
to how the arrested person is to be "informed" of the
grounds of arrest and this aspect has not been dealt
with or delineated in Vijay Madanlal Choudhary - (2023)
12 SCC 1. Similarly, in V. Senthil Balaji - (2024) 3 SCC
51, this Court merely noted that the information of the
grounds of arrest should be "served" on the arrestee,
but did not elaborate on that issue. Pertinent to note,
the grounds of arrest were furnished in writing to the
arrested person in that case. Surprisingly, no consistent
and uniform practice seems to be followed by ED in this
regard, as written copies of the grounds of arrest are
furnished to arrested persons in certain parts of the
country but in other areas, that practice is not followed
and the grounds of arrest are either read out to them or
allowed to be read by them.
38. In this regard, we may note that Article 22(1)
of the Constitution provides, inter alia, that no person
who is arrested shall be detained in custody without
being informed, as soon as may be, of the grounds for
such arrest. This being the fundamental right
guaranteed to the arrested person, the mode of
conveying information of the grounds of arrest must
necessarily be meaningful so as to serve the intended
purpose. It may be noted that Section 45 PMLA enables
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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
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to forward a copy of the arrest order along with the
material in his possession, referred to in Section 19(1),
to the adjudicating authority in a sealed envelope.
Though it is not necessary for the arrested person to be
supplied with all the material that is forwarded to the
adjudicating authority under Section 19(2), he/she has a
constitutional and statutory right to be "informed" of the
grounds of arrest, which are compulsorily recorded in
writing by the 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
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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 ...........................
...........................
(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.
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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. 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 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
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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 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
- 2017 SCC OnLine Del 12108 and the Bombay High Court in Chhagan Chandrakant Bhujbal, 2016 SCC OnLine Bom 9938, 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
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10. In Prabir Purkayastha's case supra, a contention was raised that grounds of arrest were not informed to the accused either orally or in writing, and therefore, there was gross violation of the constitutional mandate under Article 22(1) of the Constitution of India and Section 50(1) of Cr.PC. In the said case, the Hon'ble Supreme Court, after extensively referring to its earlier judgment in Pankaj Bansal's case supra, in paragraphs 20 to 22 and 29 to 31, has observed as under:
"20. Resultantly, there is no doubt in the mind of the Court that any person arrested for allegation of commission of offences under the provisions of UAPA or for that matter any other offence(s) has a fundamental and a statutory right to be informed about the grounds of arrest in writing and a copy of such written grounds
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21. The Right to Life and Personal Liberty is the most sacrosanct fundamental right guaranteed under Articles 20, 21 and 22 of the Constitution of India. Any attempt to encroach upon this fundamental right has been frowned upon by this Court in a catena of decisions. In this regard, we may refer to the following observations made by this Court in Roy V.D. v. State of Kerala - (2000) 8 SCC 590.
"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.
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22. The right to be informed about the grounds of arrest flows from Article 22(1) of the Constitution of India and any infringement of this fundamental right would vitiate the process of arrest and remand. Mere fact that a charge-sheet has been filed in the matter, would not validate the illegality and the unconstitutionality committed at the time of arresting the accused and the grant of initial police custody remand to the accused.
29. The language used in Article 22(1) and Article 22(5) of the Constitution of India regarding the communication of the grounds is exactly the identical. Neither of the constitutional provisions require that the 'grounds' of "arrest" or "detention", as the case may be, must be communicated in writing. Thus, interpretation to this important facet of the fundamental right as made by the Constitution Bench while examining the scope of Article 22(5) of the Constitution of India would ipso facto apply to Article 22(1) of the Constitution of India insofar the requirement to communicate the grounds of arrest is concerned.
30. Hence, we have no hesitation in reiterating that the requirement to communicate the grounds of arrest or the grounds of detention in writing to a person arrested in connection with an offence or a person placed under preventive detention as provided under Articles 22(1) and 22(5) of the Constitution of India is sacrosanct and cannot be breached under any situation. Non-compliance of this constitutional requirement and
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NC: 2024:KHC:48833 CRL.P No. 9537 of 2024 statutory mandate would lead to the custody or the detention being rendered illegal, as the case may be.
31. Furthermore, the provisions of Article 22(1) have already been interpreted by this Court in Pankaj Bansal (supra) laying down beyond the pale of doubt that the grounds of arrest must be communicated in writing to the person arrested of an offence at the earliest. Hence, the fervent plea of the learned ASG that there was no requirement under law to communicate the grounds of arrest in writing to the appellant-accused is noted to be rejected."
11. In Prabir Purkayastha's case supra, after referring to the judgment in Ram Kishor Arora's case supra and Pankaj Bansal's case supra, the Hon'ble Supreme Court has held that the judgment in Pankaj Bansal's case would apply retrospectively, and it is also held that the ratio laid down in Pankaj Bansal's case is the law of the land binding on all the Courts in the country by virtue of Article 141 of the Constitution of India. In paragraphs 45 & 46 of Prabir Purkayastha's case supra, the Hon'ble Supreme Court has observed as under:
"45. It was the fervent contention of learned ASG that in the case of Ram Kishor Arora (supra), a two- Judge Bench of this Court interpreted the judgment in the case of Pankaj Bansal (supra) to be having a prospective effect and thus the ratio of Pankaj Bansal
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NC: 2024:KHC:48833 CRL.P No. 9537 of 2024 (supra) cannot come to the appellant's aid. Indisputably, the appellant herein was remanded to police custody on 4th October, 2023 whereas the judgment in the case of Pankaj Bansal (supra) was delivered on 3rd October, 2023. Merely on a conjectural submission regarding the late uploading of the judgment, learned ASG cannot be permitted to argue that the ratio of Pankaj Bansal (supra) would not apply to the present case. Hence, the plea of Shri Raju, learned ASG that the judgment in Pankaj Bansal (supra) would not apply to the proceedings of remand made on 4th October, 2023 is misconceived.
46. We are of the firm opinion that once this Court has interpreted the provisions of the statute in context to the constitutional scheme and has laid down that the grounds of arrest have to be conveyed to the accused in writing expeditiously, the said ratio becomes the law of the land binding on all the courts in the country by virtue of Article 141 of the Constitution of India."
12. In Arvind Kejriwal's case supra - 2024 SCC OnLine SC 1703, at paragraph 73, the Hon'ble Supreme Court has observed as under:
"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
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NC: 2024:KHC:48833 CRL.P No. 9537 of 2024 details in the hands of the investigating officer necessitating the arrest. Thus, the grounds of arrest would be personal to the accused."
13. The coordinate bench of this Court in Syed Sajjad Ali's case supra, wherein a contention was raised that grounds of arrest were not communicated to the accused either orally or in writing, placing reliance on the judgments of the Hon'ble Supreme Court in Prabir Purkayastha's case, has held that there was violation of the rights guaranteed to the accused, and accordingly, the accused was directed to be enlarged on bail.
14. In Mahesh Pandurang Naik's case supra, Hem Prabhakar Shah's case supra, Rajashree Bhausaheb Vikhe Patil's cases supra, Sachin Mahipati Nimbalkar's case supra and Manulla M.Kanchwala's case supra, on which reliance has been placed by the learned Senior Counsel for the petitioner, the Division Bench of the Bombay High Court has examined the contentions urged on behalf of the accused that they were not served with the grounds of arrest in accordance with law and has held that compliance of the requirement as laid down in Pankaj Bansal's case supra and Prabir Purkayastha's case supra, is mandatory
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NC: 2024:KHC:48833 CRL.P No. 9537 of 2024 and violation of the same would render the remand bad in law. It is also held that the decision of the Hon'ble Supreme Court in Pankaj Bansal's case supra and Prabir Purkayastha's case supra, is not only binding on all the Courts in the country by virtue of Article 141 of the Constitution of India, but in terms of Article 144, the law shall be followed by all the concerned including the courts and authorities exercising the power of arrest. Since the judgment in Pankaj Bansal's case supra was rendered on 03.10.2023, and in Prabir Purkayastha's case supra the Hon'ble Supreme Court has observed that the judgment in Pankaj Bansal's case supra, shall be retrospectively effective, any arrest made on 03.10.2023 necessarily must ensure compliance of service of grounds of arrest in the manner known to law, immediately.
15. In Ram Kishor Arora's case supra, the Hon'ble Supreme Court has held that such service of grounds of arrest must be performed at an outer limit, within 24 hours of arrest.
16. In KVR Vidyasagar's case supra, the High Court of Andhra Pradesh in paragraph 44 & 45, has observed as under:
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NC: 2024:KHC:48833 CRL.P No. 9537 of 2024 "44. As discussed above, the Hon'ble Apex Court in Pankaj Bansal's case, with reference to section 19(1) of The Prevention of Money Laundering Act, 2002 and Article 22 of the Constitution of India observed that "grounds of arrest be communicated in writing". The Hon'ble Apex Court in Prabir Purkayastha's case explained the difference between the 'reasons for arrest' and 'grounds of arrest', stating that the grounds of arrest may convey to the arrested accused all basic facts, on which he was being arrested to provide him an opportunity of defending himself against the 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.
45. Therefore, to comply mandate of Article 22(1) of the Constitution of India and section 47(1) of BNSS, 2023 in its sprit, I am of the considered opinion that the grounds of arrest must be informed in writing conveying the basic facts, on which the accused was arrested to provide him an opportunity of defending himself against the custodial remand and to seek bail."
17. It is the contention of the learned Spl.PP that immediately after the arrest of the petitioner on 21.07.2024, he was served with an intimation notice and the copy of the said notice is produced by him along with the statement of objections at Annexure-R1. Perusal of the same would go to show that the
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NC: 2024:KHC:48833 CRL.P No. 9537 of 2024 petitioner has received the same under acknowledgment and his signature is found on the said notice. It is not the case of the petitioner that he has not received the said notice. The said intimation notice dated 21.07.2024 reads as under:
"¥Éưøï G¥Á¢üÃPÀëPÀgÀ gÀªÀgÀ PÀbÉÃj «±ÉõÀ «ZÁgÀuÉUÀ¼À «¨sÁUÀ, ¹Lr, ¨ÉAUÀ¼ÀÆgÀÄ.
¢£ÁAPÀ 21-07-2024.
:: w¼ÀĪÀ½PÉ £ÉÆÃn¸ï ::
F ªÀÄÆ®PÀ ¤ªÀUÉ w½AiÀÄ¥Àr¸ÀĪÀÅzÉãÉAzÀgÉ, ¨ÉAUÀ¼ÀÆgÀÄ £ÀUÀgÀ ¨sÁgÀw £ÀUÀgÀ ¥Éưøï oÁuÉ ªÉÆ.¸ÀA: 08/2022 PÀ®A : 420, 465 468, 471 120(©) gÉ/« 34 L¦¹ eÉÆvÉUÉ PÀ®A 03 Karnataka Control of Organised Crime Act-2000gÀ ¥ÀæPÀgÀtzÀ°è DgÉÆæAiÀiÁzÀ-1 eÁ£ï ªÉƸÀ¸ï.r @ ªÀÄzsÀ£ï PÀĪÀiÁgï ©£ï eÁ£ï.¦ zÉêÀªÀÄtÂ, 47 ªÀµÀð, ªÁ¸À: £ÀA: 201, 2£Éà ªÀĺÀr, PÀ«vÁ gɹqɤì, ªÀiÁgÀw ¸ÉêÁ £ÀUÀgÀ, ¨ÉAUÀ¼ÀÆgÀÄ - 560 033. DzÀ ¤ªÀÄä£ÀÄß ¨sÁgÀw £ÀUÀgÀ ¥Éưøï oÁuÉ ªÉÆ.¸ÀA 08/2022 gÀ°è ¸ÉÃAmï eÁ£ï gÀ¸ÉÛAiÀÄ ²ªÀ£À±ÉnÖ UÁqÀð£ï gÀ¸ÉÛAiÀÄ ¸ÀªÉð £ÀA. 10/07 ªÀÄvÀÄÛ 10/10 UÀ¼À ¸ÀéwÛUÉ ¸ÀA§A¢ü¹zÀ £ÀPÀ° zÁR¯ÉUÀ¼À£ÀÄß ¸Àȶֹ £ÁåAiÀiÁ®AiÀÄPÉÌ ¸À°è¹ £ÁåAiÀiÁ®AiÀÄzÀ DzÉñÀªÀ£ÀÄß
- 28 -
NC: 2024:KHC:48833 CRL.P No. 9537 of 2024 ¥ÀqÉzÀÄ ¸ÀzÀj ¸ÀܼÀzÀ°è ªÁ¸À«zÀÝ PÉƼÀZÉ ¤ªÁ¹UÀ¼À£ÄÀ ß CPÀæªÀĪÁV vÉgÀªÀÅUÉƽ¹gÀĪÀÅzÀÄ PÀAqÀħA¢gÀÄvÀÛzÉ.
ªÉÄîÌAqÀ ¥ÀæPÀgÀtzÀ°è ¤ÃªÀÅ ªÀÄÄRå DgÉÆæAiÀiÁVgÀĪÀÅzÀjAzÀ ¤ªÀÄä£ÀÄß ¢£ÁAPÀ: 21.07.2024 gÀAzÀÄ gÁwæ 07.30 UÀAmÉAiÀÄ°è zÀ¸ÀÛVj ªÀiÁr WÀ£À ¸ÀªÉÇðZÀÑ £ÁåAiÀiÁ®AiÀÄzÀ ¤AiÀĪÀiÁªÀ½UÀ¼À£ÀÄß C£ÀĸÀj¹ ¸ÀÆPÀÛ ¥ÉÆ°Ã¸ï ¸ÀÄ¥À¢ðAiÀÄ°ènÖgÀÄvÉÛ. vÀ¤SÁ PÀæªÀÄUÀ¼ÀÄ ªÀÄÄVzÀ £ÀAvÀgÀ ¤ªÀÄä£ÀÄß ¢£ÁAPÀ: 22.07.2024 gÀAzÀÄ WÀ£À ¥ÀæzsÁ£À ¹n ¹«¯ï ªÀÄvÀÄÛ ¸ÉµÀ£Àì £ÁåAiÀiÁ®AiÀÄ, ¨ÉAUÀ¼ÀÆgÀÄ gÀªÀgÀ ¸ÀªÀÄPÀëªÀÄ ºÁdgÀÄ¥Àr¸À¯ÁUÀĪÀÅzÀÄ. ¤ÃªÀÅUÀ¼ÀÄ ¤ªÀÄä ªÀQîgÀ ªÀÄÆSÁAvÀgÀ ¸ÀÆPÀÛ PÁ£ÀƤ£À £ÉgÀªÀ£ÀÄß ¥ÀqÉzÀÄPÉƼÀî®Ä ¸ÀÆa¹zÉ.
(¥ÀĤÃvï PÀĪÀiÁgï.Dgï) ¥Éưøï G¥Á¢üÃPÀëPÀgÀÄ & vÀ¤SÁ¢PÁj «±ÉõÀ «ZÁgÀuÉUÀ¼À «¨sÁUÀ, ¹Lr, ¨ÉAUÀ¼ÀÆgÀÄ.
gÀªÀjUÉ, eÁ£ï ªÉƸÀ¸ï. r @ ªÀÄzÀ£ï PÀĪÀiÁgï ©£ï eÁ£ï.¦ zÉêÀªÀÄtÂ, 47 ªÀµÀð, ªÁ¸À: £ÀA:201, 2£Éà ªÀĺÀr, PÀ«vÁ gɹqɤì, ªÀiÁgÀw ¸ÉêÁ £ÀUÀgÀ, ¨ÉAUÀ¼ÀÆgÀÄ-560033."
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NC: 2024:KHC:48833 CRL.P No. 9537 of 2024
18. Learned Spl.PP has also contended before this Court that petitioner was produced under the body warrant in the present case initially before the Court of Magistrate on 15.07.2024, and at the request of the Investigation Officer, petitioner was remanded to police custody. The material on record would go to show that on 15.07.2024 and on 18.07.2024, remand applications were filed by the prosecution. The order sheet of the Court of Magistrate would reflect that on 15.07.2024, petitioner had made a submission before the court that he would engage the services of an advocate on the next date, and on 18.07.2024, an advocate had appeared on behalf of the petitioner when the remand application was filed by the prosecution. It is the contention of the learned Spl.PP that even in the remand application that was filed on 15.07.2024 and 18.07.2024, the particulars of the case and the grounds of arrest has been mentioned.
19. Intimation notice dated 21.07.2024 is served on the petitioner at the time of his arrest, which is much after the earlier two remand applications were filed on 15.07.2024 and 18.07.2024. Perusal of Annexure-R1 - intimation notice dated
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NC: 2024:KHC:48833 CRL.P No. 9537 of 2024 21.07.2024 would go to show that the same contains the following particulars:
(i) the crime number registered against the petitioner and the alleged offences for which it is registered;
(ii) the name of the police station in which the FIR has been registered against the petitioner;
(iii) survey numbers of the land involved in the scam;
(iv) allegation of forged records;
(v) allegation of using the forged
documents as genuine;
(vi) allegation of producing the forged
documents before civil courts in suits and execution case;
(vii) allegation of obtaining fraudulent decree;
(viii) allegation of evicting the genuine persons from possession;
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NC: 2024:KHC:48833 CRL.P No. 9537 of 2024
(ix) invoking of the provisions of KCOCA in Crime No.8/2022.
20. In Pankaj Bansal's case supra, the prescribed format of arrest order while exercising powers under Section 19(1) of the Prevention of Money Laundering Act, 2002, has been quoted and it is observed that the said format would be followed all over the country by the authorized officers who exercise the power of arrest. In the intimation notice - Annexure-R1 dated 21.07.2024, the contents found in the prescribed format of arrest order is prima facie found and the date of production of the accused before the jurisdictional court is also mentioned and he is also informed to take appropriate legal recourse through his advocate.
21. In Prabir Purkayastha's case supra, the Hon'ble Supreme Court has observed that 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.
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NC: 2024:KHC:48833 CRL.P No. 9537 of 2024
22. In the intimation notice - Annexure-R1 dated 21.07.2024, all basic facts of the case in which the petitioner is being arrested has been mentioned, the date on which he would be produced before the jurisdictional court is mentioned and he is also informed to take necessary legal recourse through his advocate. The contents of Annexure-R1 dated 21.07.2024 has been already analyzed by this Court herein above. In addition to the same, two remand applications were filed in this case on 15.07.2024 and 18.07.2024 which is even prior to the arrest of the petitioner. Petitioner is arrested in the presence case on 21.07.2024 and on the said date, intimation notice - Annexure- R1 is served on him which contains all the basic facts of the case personal to him. The remand applications dated 15.07.2024 and 18.07.2024 were filed after the petitioner was produced under body warrant in the present case and his police custody was sought. It is relevant to take note that on 18.07.2024 when the second remand application was filed before the jurisdictional court, petitioner was represented by an advocate and it is not his case that the remand application was not served on him on the said date.
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NC: 2024:KHC:48833 CRL.P No. 9537 of 2024
23. In normal circumstances, the remand application would be filed before the court after the accused is arrested and produced before the court. Therefore, the said remand application cannot be looked into for the purpose of compliance of the requirement of Section 50(1) of Cr.PC and Article 22(1) of the Constitution of India.
24. So far as the present case is concerned, remand applications are filed before the Court of Magistrate at the stage of producing the petitioner under body warrant, which is much prior to the arrest of the petitioner, and therefore, he was well aware of the facts of the case and the grounds on which he was being sought to police custody even before his arrest. In addition to the aforesaid remand application, the intimation notice served on 21.07.2024 mentions all the basic facts of the case in which the petitioner has been arrested. Since this court is of the view that arrest of the petitioner is in strict compliance of the constitutional safeguards as well as the provisions contained in the Code of Criminal Procedure, the contention urged on behalf of the petitioner that remand of the petitioner is bad in law since he was not served with the grounds of arrest is liable to be rejected.
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NC: 2024:KHC:48833 CRL.P No. 9537 of 2024
25. From the perusal of the remand order passed by the Special Judge, it cannot be said that the same is passed without application of mind. Judgment in the case of Tusharbhai supra was passed, wherein remand order of accused was passed by learned Magistrate in a case where accused was granted anticipatory bail by the Hon'ble Supreme Court. The dispute in the said case was prima facie civil in nature. The said judgment cannot be made applicable to the facts of this case.
26. In Prabir Purkayastha's case supra, after referring to the judgment of Pankaj Bansal's case supra, the Hon'ble Supreme Court has specifically held that the grounds of arrest should be served in writing to the arrested accused mentioning the basic facts on which he is being arrested so as to provide him an opportunity of defending against custodial remand and to seek bail. Such basic facts of the case in which the petitioner is arrested is found in the intimation notice dated 21.07.2024 and in the remand applications dated 15.07.2024 & 18.07.2024, and therefore, I have no hesitation to hold that the respondent- Police have followed the law laid down by the Hon'ble Supreme
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NC: 2024:KHC:48833 CRL.P No. 9537 of 2024 Court in Pankaj Bansal's case and Prabir Purkayastha's case supra, and no legal infirmity can be found in the arrest of the petitioner.
27. In Ram Kishor Arora's case supra, the Hon'ble Supreme Court has examined the judgment in Pankaj Bansal's case supra and in paragraphs 16 & 22, it is observed as under:
"16. In view of the aforestated proposition of law propounded by the Constitution Benches, there remains no shadow of doubt that the law laid down by the three- Judge Bench in Vijay Madanlal Choudhary that Section 19(1) PMLA has a reasonable nexus with the purposes and objects sought to be achieved by the PML Act and that the said provision is also compliant with the mandate of Article 22(1) of the Constitution of India, any observation made or any finding recorded by the Division Bench of lesser number of Judges contrary to the said ratio laid down in Vijay Madanlal Choudhary would be not in consonance with the jurisprudential wisdom expounded by the Constitution Benches in cases referred above. The three-Judge Bench in Vijay Madanlal Choudhary having already examined in detail the constitutional validity of Section 19 PMLA on the touchstone of Article 22(1) and upheld the same, it holds the field as on the date.
22. In Vijay Madanlal Choudhary it has been categorically held that so long as the person has been
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NC: 2024:KHC:48833 CRL.P No. 9537 of 2024 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."
28. In the present case, petitioner who is arrested in Crime No.8/2022 has been served with the intimation notice immediately after his arrest, which contains the basic facts of the case. In addition to the same, two remand applications dated 15.07.2024 & 18.07.2024 also contain the basic facts of the case. In Ram Kishor Arora's case supra, the Hon'ble Supreme Court has observed that if the person arrested is informed or made aware orally about the grounds of arrest at the time of his arrest and is furnished a written communication
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NC: 2024:KHC:48833 CRL.P No. 9537 of 2024 about the grounds of arrest as soon as may be, that would be sufficient compliance of the requirement of Article 22(1) of the Constitution of India. Such compliance is found in the present case.
29. Though FIR has been registered in the present case in the year 2022 and some of the accused were already arrested, the petitioner has been arrested in the present case only on 21.07.2024. The competent authority has sanctioned prior approval for invoking the provisions of KCOCA in the present case, a day prior to the petitioner's arrest. Investigation of the case is under progress and charge sheet is yet to be filed. For the alleged offences under the KCOCA, the minimum punishment is imprisonment for a period of five years which may extend to imprisonment for life. Petitioner is involved in about 110 criminal cases and in several of the said cases investigation is yet to be completed.
30. Considering the seriousness and the gravity of allegations found against the petitioner who has played fraud on the courts and siphoned wealth by threatening general public on the basis of the fraudulent decrees obtained from the competent courts, I
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NC: 2024:KHC:48833 CRL.P No. 9537 of 2024 am of the opinion that the prayer made by the petitioner for grant of regular bail at this stage cannot be entertained. Accordingly, petition is dismissed.
Sd/-
(S VISHWAJITH SHETTY) JUDGE KK