The Supreme Court, in its judgment delivered today on May 15, distinguished between the 'reasons for arrest' and 'grounds of arrest'. The Court said that there is a significant difference between these two phrases.
It explained that 'reasons of arrest' are formal and could apply generally to any person arrested of an offence. Elaborating, the Court also cited several of these formal parameters that varied from preventing the accused person from committing any further offence to taking measures for proper investigation of the case. On the other hand, 'grounds of arrest' are personal and specific to the person arrested.
“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.”
The Bench of Justices BR Gavai and Sandeep Mehta held so while declaring NewsClick founder and Editor-in-Chief Prabir Purkayastha's arrest and his remand in a case under the Unlawful Activities (Prevention) Act 1967 as illegal. The Court rested its reasoning on the fact that the grounds of the arrest were not supplied to him in writing.
Under the scanner was a decision of the Delhi High Court upholding Purkayastha's arrest by the Delhi Police. Against this order, he had approached the Top Court.
The High Court, in its impugned order, had held that grounds of arrest were conveyed to the Purkayastha in writing through the arrest memo. However, the same was found as unacceptable by the Apex Court. In the judgment authored by Justice Sandeep Mehta, it was categorically stated that the arrest memo only had 'reasons for arrest' and not 'grounds of arrest'.
“Column No. 9 of the arrest memo (Annexure P-7) which is being reproduced hereinbelow simply sets out the 'reasons for arrest' which are formal in nature and can be generally attributed to any person arrested on accusation of an offence whereas the 'grounds of arrest' would be personal in nature and specific to the person arrested.,” the Court noted in its judgment.
The Court stressed on the significance of conveying the grounds of arrest to the accused person for enabling him to defend himself against custodial remand and seek bail.
"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.,” the Court added.
It may be recalled that Purkayastha has been in custody since October 3 last year under the UAPA in a case over receiving Chinese funds to propagate anti-national propaganda. The arrest and remand having been declared invalid in the eyes of the law and set aside, the Court ordered the release of Purkayasatha. However, it said that the release would be subject to his furnishing the bail and bonds to the satisfaction of the trial Court since the chargesheet has been filed.
Also read: Prabir Purkayastha's Arrest By Delhi Police & Remand Illegal : Supreme Court Orders NewsClick Editor's Release In UAPA Case
Accused Must Be Given Written Grounds Of Arrest In UAPA Cases Too : Supreme Court Extends Ratio Of 'Pankaj Bansal' Judgment
Arrest & Remand Illegal If Accused Not Informed Grounds Of Arrest; Filing Of Chargesheet Won't Validate Illegal Arrest : Supreme Court
Case Details: Prabir Purkayastha v. State., Diary No, 42896 of 2023
Click here to read/ download the judgment
In a major development, the Supreme Court on Wednesday (May 15) declared as illegal NewsClick founder and Editor-in-Chief Prabir Purkayastha's arrest by the Delhi police and his remand in a case under the Unlawful Activities (Prevention) Act 1967.
The Court noted that a copy of the remand application was not provided to Purkayastha or his counsel before passing the remand order on October 4, 2023. This meant that the grounds of the arrest were not supplied to him in writing. It was the case of the Delhi police that requirement to furnish the grounds of arrest in writing was fulfilled by the serving of the remand application, but the Court was not convinced.
"There is no hesitation in the mind of the Court to reach to a conclusion that a copy of the remand application, in the purported exercise of the communication of the grounds of arrest in writing, was not provided to the accused-appellant or his counsel before the passing of the remand order dated 4th October, 2023, which vitiates the arrest and the subsequent remand of the appellant. As a result, the appellant is entitled to a direction for release from custody by applying the ration of the judgment rendered by this court in Pankaj Bansal," the Court pronounced.
The arrest, remand having been declared invalid in the eyes of law and set aside, the Court ordered the release of Purkayasatha. However, it said that the release will be subject to his furnishing the bail and bonds to the satisfaction of the trial Court, since chargesheet has been filed.
A bench of Justices BR Gavai and Sandeep Mehta delivered the verdict, after having concluded arguments on April 30. It may be recalled that Purkayastha is in custody since October 3 last year under the Unlawful Activities (Prevention) Act in a case over receiving Chinese funds to propagate anti-national propaganda. Senior Advocate Kapil Sibal appeared for Purkayastha and Additional Solicitor General SV Raju appeared for the Delhi Police.
Purkayastha challenged the legality of his arrest by contending that the grounds of arrest were not supplied to him in writing as mandated by the Supreme Court's judgment in Pankaj Bansal. The Delhi police, on the other hand, contended that the grounds of arrest were contained in the remand application.
During the hearing, the Court had noted that the remand order was recorded to have been passed at 6 AM on October 4, 2023. However, copy of the remand application was served on Purkayastha's lawyer much later.
The day verdict was reserved (April 30), the Court questioned Delhi Police's "hot haste" in producing Purkayastha before the Magistrate at 6 AM even without informing his lawyer. It also expressed surprise at the fact that the remand order was passed before the remand application was served on Purkayastha's lawyer.
The Delhi police's response to the same was that the time recorded in the remand order (6 AM) was wrong and that the remand order was passed after serving the counsel of the accused. However, this argument did not impress the Court which asserted that it would go only by the time recorded in the judicial order.
Purkayastha had filed the petition assailing a decision of the Delhi High Court upholding his arrest by the Delhi Police. In today's verdict, the Supreme Court set aside the Delhi High Court's judgment as well.
Notably, co-accused and NewsClick human resources head Amit Chakraborty had also approached the top court challenging his arrest, but he was allowed to withdraw his plea after he turned approver for the Enforcement Directorate and was granted a pardon.
It may also be mentioned that while Purkayastha's case was pending, the court had directed the constitution of a board by the All India Institute of Medical Science (AIIMS) for Purkayastha's independent medical evaluation. This report was received by March 20.
For a detailed background and previous reports, click here.
Other reports about the judgment can be read here
Case Details: Prabir Purkayastha v. State, Diary No, 42896 of 2023
Citation : 2024 LiveLaw (SC) 376
Click here to read the judgment
In one of the crucial developments, the Supreme Court (today on May 15), held that the ratio laid down in the judgment in the case Pankaj Bansal v Union of India mandating that grounds of arrest must be supplied to the accused in writing will also apply in the cases registered under the Unlawful Activities (Prevention) Act 1967.
The Bench of Justices BR Gavai and Sandeep Mehta made the above finding in a judgment declaring the arrest of NewsClick founder and Editor-in-Chief Prabir Purkayastha's and his remand in a case under the Unlawful Activities (Prevention) Act 1967 as illegal.
In Pankaj Bansal, the top Court had held that merely reading out the grounds of arrest will not fulfil the mandate of Article 22(1) of the Constitution and Section 19(1) of the Prevention of Money Laundering Act which talks about the power to arrest.
The bench was hearing Purkayastha's special leave petition assailing a decision of the Delhi High Court upholding his arrest by the Delhi Police. The main gist of Purkayastha's arguments was that till date, the grounds of arrest have not been supplied. Senior advocate Kapil Sibal, appearing for Purkayastha, had relied upon Pankaj Bansal's ruling to support his arguments. Per contra, Delhi police had argued that Pankaj Bansal was peculiar to the statutory scheme of the PMLA and could not apply to UAPA or other laws that have their own provisions.
Accordingly, the Court, in the instant matter, examined the relevant provisions of the PMLA and the UAPA. Examining the same, the Court opined that there is no substantial difference in the language used under Section 19 of the PMLA and Section 43(B) (Procedure of arrest) of the UAPA. Having said that, the Court recorded that it is not persuaded to take the view that the wording of “'inform him of the grounds for such arrest” (in Pankaj Bansal's case) should not be applied in the UAPA cases.
“We find that the provision regarding the communication of the grounds of arrest to a person arrested contained in Section 43B(1) of the UAPA is verbatim the same as that in Section 19(1) of the PMLA.,” the Court added.
Elaborating, the Court said that the constitutional safeguard provided under Article 22(1) of the Constitution of India will apply to both the provisions i.e, Section 19 of the PMLA and Section 43 of the UAPA. As per this Article, no person who is arrested shall be detained in custody without being informed, as soon as may be, of the grounds for such arrest.
In this respect, it may be noted that, in the impugned judgment, the Delhi High Court had also observed that the judgment in Pankaj Bansal cannot be said to be squarely applicable to a case arising under the UAPA.
Requirement To Communicate The Grounds Of Arrest Under Article 22 Of The Indian Constitution Is Sacrosanct
The judgment, authored by Justice Mehta, also extensively stressed on the Right to Life and Personal Liberty and that any attempt to encroach the same has been frowned upon by the Court.
After cementing this background, the Court delved into the issue of whether informing of the grounds of arrest in writing is mandatory even when Article 22 does not state explicitly of such requirement.
To answer this, the Court drove its strength from the Constitution Bench's judgment in Harikisan v. State of Maharashtra and Others., 962 SCC OnLine SC 117. Therein, the Top Court had held that the communication of the grounds of detention to the detenue in writing and in a language which he understands is imperative. It was also stated that the order of detention would stand vitiated as the guarantee under Article 22(5) of the Constitution was violated.
Noting that the ratio rendered in Harikisan's case has been consistent in several other decisions of the Court, it was held:
“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 statutory mandate would lead to the custody or the detention being rendered illegal, as the case may be.”
This Entire Exercise Was Done In A Clandestine Manner
Adverting to the facts of the case, the Court noted that the copy of the FIR was not shared with the appellant until after the remand order was passed. Further, the appellant was arrested on October 3, 2023 at 5:45 p.m. and was presented before the Remand Judge at his residence before 6:00 a.m. on the very next day. The Court took a strong exception against the fact that the appellant's counsel was not present during his remand and instead some other legal aid counsel was present.
“Apparently, this entire exercise was done in a clandestine manner and was nothing but a blatant attempt to circumvent the due process of law; to confine the accused to police custody without informing him the grounds on which he has been arrested; deprive the accused of the opportunity to avail the services of the legal practitioner of his choice so as to oppose the prayer for police custody remand, seek bail and also to mislead the Court.”
Notably, the remand order was already passed by the time appellant's counsel was informed about this development. Unquestionably, till that time, the grounds of arrest had not been conveyed to the appellant in writing., the Court added.
Imperatively, the Court also observed that the grounds of arrest, as set out in the remand application, were given to the appellant's advocate through WhatsApp only after the remand order was passed. In this respect, the Court also turned down the ASG's contention that the time of 6 AM was recorded in the remand order by mistake.
It may also be noted that the decision in Pankaj Bansal was pronounced on October 3, and the appellant was remanded to police custody on October 4. Based on this, the Court denied that the defence taken by the mentioned case would not apply since it was uploaded late.
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., the Court added before concluding:
“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 accused appellant or his counsel before passing of the order of remand dated 4th October, 2023 which vitiates the arrest and subsequent remand of the appellant.”
Other reports about the judgment can be read here.
Case Details: Prabir Purkayastha v. State., Diary No, 42896 of 2023
Citation : 2024 LiveLaw (SC) 376
Click here to read/ download thejudgment
The Supreme Court (today on May 15) opined that an illegal arrest and remand order cannot be validated merely on the ground that a chargesheet has been filed.
“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.,” held Justices B.R Gavai and Sandeep Mehta
The above observation has emanated from the Court's judgment declaring NewsClick founder and Editor-in-Chief Prabir Purkayastha's arrest and his remand in a case under the Unlawful Activities (Prevention) Act 1967 as illegal. The Court rested its reasoning on the fact that the grounds of the arrest were not supplied to him in writing.
Elaborating, the Court observed that the right to be informed about the grounds of arrest flows from Article 22(1) of the Indian Constitution. Thus, any breach of this fundamental right would vitiate the arrest as well as the remand. Further, the same cannot be validated even if the chargesheet has been filed.
Against this backdrop, the Court delved into the issue of whether informing of the grounds of arrest in writing is mandatory even when Article 22(1) does not state explicitly of such requirement. As per this Article, no person who is arrested shall be detained in custody without being informed, as soon as may be, of the grounds for such arrest.
One of the contentions raised before the court by Delhi Police was that even in a case of preventive detention under Article 22(5), grounds of arrest are not required to be given in writing. Not satisfied with this argument, the Court cited a few cases, including the Constitution Bench's judgment in Harikisan v. State of Maharashtra and Others., 962 SCC OnLine SC 117. Therein, the Top Court had held that the communication of the grounds of detention to the detenue in writing and in a language which he understands is imperative. It was also stated that the order of detention would stand vitiated as the guarantee under Article 22(5) of the Constitution was violated. To quote from the judgment:
“In order that the detenue should have that opportunity, it is not sufficient that he has been physically delivered the means of knowledge with which to make his representation. In order that the detenue should be in a position effectively to make his representation against the Order, he should have knowledge of the grounds of detention, which are in the nature of the charge against him setting out the kinds of prejudicial acts which the authorities attribute to him.”
“Naturally, therefore, any oral translation or explanation given by the police officer serving those on the detenue would not amount to communication, in this context, must mean bringing home to the detenue effective knowledge of the facts and circumstances on which the Order of Detention is based.”
Taking a cue from this reasoning, the Court, in the instant matter, held that the grounds of arrest must be communicated in writing. This is to enable the accused to take action against the deprivation of his liberty.
Moreover, the Court also observed that this above interpretation would also extend to Article 22(1) as the language used in both these Articles (Article 22(1) and Article 22(5)) regarding the communication of the grounds is identical.
“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.,” the Court said.
It may be recalled that Purkayastha has been in custody since October 3 last year under the UAPA in a case over receiving Chinese funds to propagate anti-national propaganda.
Purkayastha approached the Court challenging the legality of his arrest by contending that the grounds of arrest were not supplied to him in writing as mandated by the Supreme Court's judgment in Pankaj Bansal v Union of India
In this respect, the Court also held that the ratio laid down in the judgment in the case Pankaj Bansal mandating that grounds of arrest must be supplied to the accused in writing will also apply in the cases registered under the UAPA.
The arrest and remand having been declared invalid in the eyes of the law and set aside, the Court ordered the release of Purkayasatha. However, it said that the release would be subject to his furnishing the bail and bonds to the satisfaction of the trial Court since the chargesheet has been filed.
Case Details: Prabir Purkayastha v. State., Diary No, 42896 of 2023
Click here to read/ download the judgment
The Supreme Court (today on May 15) opined that an illegal arrest and remand order cannot be validated merely on the ground that a chargesheet has been filed.
“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.,” held Justices B.R Gavai and Sandeep Mehta
The above observation has emanated from the Court's judgment declaring NewsClick founder and Editor-in-Chief Prabir Purkayastha's arrest and his remand in a case under the Unlawful Activities (Prevention) Act 1967 as illegal. The Court rested its reasoning on the fact that the grounds of the arrest were not supplied to him in writing.
Elaborating, the Court observed that the right to be informed about the grounds of arrest flows from Article 22(1) of the Indian Constitution. Thus, any breach of this fundamental right would vitiate the arrest as well as the remand. Further, the same cannot be validated even if the chargesheet has been filed.
Against this backdrop, the Court delved into the issue of whether informing of the grounds of arrest in writing is mandatory even when Article 22(1) does not state explicitly of such requirement. As per this Article, no person who is arrested shall be detained in custody without being informed, as soon as may be, of the grounds for such arrest.
One of the contentions raised before the court by Delhi Police was that even in a case of preventive detention under Article 22(5), grounds of arrest are not required to be given in writing. Not satisfied with this argument, the Court cited a few cases, including the Constitution Bench's judgment in Harikisan v. State of Maharashtra and Others., 962 SCC OnLine SC 117. Therein, the Top Court had held that the communication of the grounds of detention to the detenue in writing and in a language which he understands is imperative. It was also stated that the order of detention would stand vitiated as the guarantee under Article 22(5) of the Constitution was violated. To quote from the judgment:
“In order that the detenue should have that opportunity, it is not sufficient that he has been physically delivered the means of knowledge with which to make his representation. In order that the detenue should be in a position effectively to make his representation against the Order, he should have knowledge of the grounds of detention, which are in the nature of the charge against him setting out the kinds of prejudicial acts which the authorities attribute to him.”
“Naturally, therefore, any oral translation or explanation given by the police officer serving those on the detenue would not amount to communication, in this context, must mean bringing home to the detenue effective knowledge of the facts and circumstances on which the Order of Detention is based.”
Taking a cue from this reasoning, the Court, in the instant matter, held that the grounds of arrest must be communicated in writing. This is to enable the accused to take action against the deprivation of his liberty.
Moreover, the Court also observed that this above interpretation would also extend to Article 22(1) as the language used in both these Articles (Article 22(1) and Article 22(5)) regarding the communication of the grounds is identical.
“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.,” the Court said.
It may be recalled that Purkayastha has been in custody since October 3 last year under the UAPA in a case over receiving Chinese funds to propagate anti-national propaganda.
Purkayastha approached the Court challenging the legality of his arrest by contending that the grounds of arrest were not supplied to him in writing as mandated by the Supreme Court's judgment in Pankaj Bansal v Union of India
In this respect, the Court also held that the ratio laid down in the judgment in the case Pankaj Bansal mandating that grounds of arrest must be supplied to the accused in writing will also apply in the cases registered under the UAPA.
The arrest and remand having been declared invalid in the eyes of the law and set aside, the Court ordered the release of Purkayasatha. However, it said that the release would be subject to his furnishing the bail and bonds to the satisfaction of the trial Court since the chargesheet has been filed.
Case Details: Prabir Purkayastha v. State., Diary No, 42896 of 2023
The Supreme Court (today on May 15) opined that an illegal arrest and remand order cannot be validated merely on the ground that a chargesheet has been filed.
“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.,” held Justices B.R Gavai and Sandeep Mehta
The above observation has emanated from the Court's judgment declaring NewsClick founder and Editor-in-Chief Prabir Purkayastha's arrest and his remand in a case under the Unlawful Activities (Prevention) Act 1967 as illegal. The Court rested its reasoning on the fact that the grounds of the arrest were not supplied to him in writing.
Elaborating, the Court observed that the right to be informed about the grounds of arrest flows from Article 22(1) of the Indian Constitution. Thus, any breach of this fundamental right would vitiate the arrest as well as the remand. Further, the same cannot be validated even if the chargesheet has been filed.
Against this backdrop, the Court delved into the issue of whether informing of the grounds of arrest in writing is mandatory even when Article 22(1) does not state explicitly of such requirement. As per this Article, no person who is arrested shall be detained in custody without being informed, as soon as may be, of the grounds for such arrest.
One of the contentions raised before the court by Delhi Police was that even in a case of preventive detention under Article 22(5), grounds of arrest are not required to be given in writing. Not satisfied with this argument, the Court cited a few cases, including the Constitution Bench's judgment in Harikisan v. State of Maharashtra and Others., 962 SCC OnLine SC 117. Therein, the Top Court had held that the communication of the grounds of detention to the detenue in writing and in a language which he understands is imperative. It was also stated that the order of detention would stand vitiated as the guarantee under Article 22(5) of the Constitution was violated. To quote from the judgment:
“In order that the detenue should have that opportunity, it is not sufficient that he has been physically delivered the means of knowledge with which to make his representation. In order that the detenue should be in a position effectively to make his representation against the Order, he should have knowledge of the grounds of detention, which are in the nature of the charge against him setting out the kinds of prejudicial acts which the authorities attribute to him.”
“Naturally, therefore, any oral translation or explanation given by the police officer serving those on the detenue would not amount to communication, in this context, must mean bringing home to the detenue effective knowledge of the facts and circumstances on which the Order of Detention is based.”
Taking a cue from this reasoning, the Court, in the instant matter, held that the grounds of arrest must be communicated in writing. This is to enable the accused to take action against the deprivation of his liberty.
Moreover, the Court also observed that this above interpretation would also extend to Article 22(1) as the language used in both these Articles (Article 22(1) and Article 22(5)) regarding the communication of the grounds is identical.
“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.,” the Court said.
It may be recalled that Purkayastha has been in custody since October 3 last year under the UAPA in a case over receiving Chinese funds to propagate anti-national propaganda.
Purkayastha approached the Court challenging the legality of his arrest by contending that the grounds of arrest were not supplied to him in writing as mandated by the Supreme Court's judgment in Pankaj Bansal v Union of India
In this respect, the Court also held that the ratio laid down in the judgment in the case Pankaj Bansal mandating that grounds of arrest must be supplied to the accused in writing will also apply in the cases registered under the UAPA.
The arrest and remand having been declared invalid in the eyes of the law and set aside, the Court ordered the release of Purkayasatha. However, it said that the release would be subject to his furnishing the bail and bonds to the satisfaction of the trial Court since the chargesheet has been filed.
Case Details: Prabir Purkayastha v. State., Diary No, 42896 of 2023
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