John Moses D @ Madan Kumar vs State Of Karnataka

... 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::

F ªÀÄÆ®PÀ ¤ªÀÄUÉ w½AiÀÄ¥Àr¸ÀĪÀÅzÉãÉAzÀgÉ, ¨ÉAUÀ¼Æ À gÀÄ £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 a Control Of Organised Crime Act - 2000 gÀ ¥ÀæPÀgÀtzÀ°è DgÉÆæAiÀiÁzÀ - 1 eÁ£ï ªÉƸÀ¸ï.r @ ªÀÄzsÀ£ï PÀĪÀiÁgï ©£ï ¦ zÉêÀªÀÄtÂ, 47 ªÀµÀð, ªÁ¸À: £ÀA:201, 2£Éà ªÀĺÀr, PÀ«vÁ gɹqɤì, ªÀiÁgÀÄw ¸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 ¸ÀªÉÃð £ÀA.:10/07 ªÀÄvÀÄÛ 10/10 UÀ¼À ¸ÀéwÛUÉ ¸ÀA§A¢ü¹zÀ £ÀPÀ° zÁR¯ÉUÀ¼À£ÀÄß ¸Àȶֹ £ÁåAiÀiÁ®AiÀÄPÉÌ ¸À°è¹ £ÁåAiÀiÁ®AiÀÄzÀ DzÉñÀªÀ£ÀÄß ¥ÀqÉzÀÄ ¸ÀzÀj ¸ÀܼÀzÀ°è ªÁ¸À«zÀÝ PÉƼÀZÉ ¤ªÁ¹UÀ¼À£ÀÄß CPÀæªÀĪÁV vÉgÀªÀÅUÉƽ¹gÀĪÀÅzÀÄ PÀAqÀħA¢gÀÄvÀÛzÉ.

ªÉÄîÌAqÀ ¥ÀæPÀgÀtzÀ°è ¤ÃªÀÅ ªÀÄÄRå DgÉÆæAiÀiÁVgÀĪÀÅzÀjAzÀ ¤ªÀÄä£ÀÄß ¢£ÁAPÀ:21.07.2024 gÀAzÀÄ gÁwæ 07:30 UÀAlAiÀÄ°è zÀ¸ÀÛVj ªÀiÁr WÀ£À ¸ÀªÉÇÃðZÀÑ £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£ïì £ÁåAiÀiÁ®AiÀÄ, ¨ÉAUÀ¼ÀÆgÀÄ gÀªÀgÀ ¸ÀªÀÄPÀëªÀÄ ºÁdgÀÄ¥Àr¸À¯ÁUÀĪÀÅzÀÄ. ¤ÃªÀÅUÀ¼ÀÄ ¤ªÀÄä ªÀQîgÀ ªÀÄÄSÁAvÀgÀ ¸ÀÆPÀÛ PÁ£ÀƤ£À £ÉgÀªÀ£ÀÄß ¥ÀqÉzÀÄPÉƼÀî®Ä ¸ÀÆa¹zÉ.

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(¥ÀĤÃvï PÀĪÀiÁgï Dgï) ¥Éưøï G¥Á¢üÃPÀëPÀgÀÄ & vÀ¤SÁ¢üPÁj «±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, ªÀiÁgÀÄw ¸ÉêÁ £ÀUÀgÀ, ¨ÉAUÀ¼ÀÆgÀÄ - 560 033."

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