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TMI Blog2024 (12) TMI 1229X X X X Extracts X X X X X X X X Extracts X X X X ..... ently cohabited. Over time, differences arose between the two, and the complainant alleged various instances of abuse and misconduct. According to her statement, it has been alleged that the petitioner administered drinks laced with intoxicants, rendering her unconscious. She alleged that during these instances, the petitioner's friends sexually assaulted her without her consent. The complainant has further leveled serious accusations of mental, physical, and sexual abuse against the petitioner and his parents, implicating them in acts of coercion and complicity. The detailed facts are not elaborated here as the petitioner has approached this Court primarily to challenge the legality of his arrest. 3. Sh. Manu Sharma, learned counsel for the petitioner, has submitted that the arrest of the petitioner by the investigating agency was carried out in contravention of the principles of law, as the grounds for arrest were not communicated to the petitioner. It has been submitted that the investigating agency failed to comply with the mandatory requirements of Section 50 of the Cr.P.C and the arrest memo prepared at the time of the petitioner's arrest did not disclose any grounds of arre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... remand application had been sent over whatsapp to the learned Counsel for the Appellant therein which according to the learned ASG did provide a complete picture about the grounds of arrest of the Appellant therein. However, Paragraph No.50 of the said Judgment, which has been quoted above, does show that the Apex Court was of the opinion 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 therein or his Counsel which is not in the present case. 34. In the facts of the present case, this Court is of the opinion that the Petitioner herein has not been deprived of the information of the grounds of arrest as it was forwarded to his Advocate appointed by him by executing a proper Vakalatnama which is on record. The Ld. ASG submits that this ground has been taken by the Petitioner herein only in this Court after the Judgment of Prabir Purkayastha (supra) passed by the Hon'ble Apex Court. This contention cannot be accepted but for the reason that a Judgment of the Apex Court is declaratory in nature and, therefore, the fact that this ground was not taken by the Petitioner earlier d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd was sought. It has been submitted that this process satisfies the legal requirements and does not constitute any violation of the statutory or constitutional provisions cited by the petitioner. 12. Section 50 of the Cr. PC provides as under; "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." 13. The bare perusal of it makes it clear that the law mandates the police officer to inform the arrested individual of the full particulars of the offence or the grounds for arrest. The requirement to convey these details is not a mere formality but a fundamental safeguard to uphold the individual's right to liberty under the Constitution of India. The Courts have time and again deprecated the practice o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , openness and workability." (emphasis supplied) 19. The Royal Commission suggested restrictions on the power of arrest on the basis of the "necessity of (sic) principle". The two main objectives of this principle are that police can exercise powers only in those cases in which it was genuinely necessary to enable them to execute their duty to prevent the commission of offences, to investigate crime. The Royal Commission was of the view that such restrictions would diminish the use of arrest and produce more uniform use of powers. The Royal Commission Report on Criminal Procedure Sir Cyril Philips at p. 45 said: "... we recommend that detention upon arrest for an offence should continue only on one or more of the following criteria: (a) the person's unwillingness to identify himself so that a summons may be served upon him; (b) the need to prevent the continuation or repetition of that offence; (c) the need to protect the arrested person himself or other persons or property; (d) the need to secure or preserve evidence of or relating to that offence or to obtain such evidence from the suspect by questioning him; and (e) the likelihood of the person failing t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion of the constitutional rights of a citizen and perhaps in his own interest that no arrest should be made without a reasonable satisfaction reached after some investigation as to the genuineness and bona fides of a complaint and a reasonable belief both as to the person's complicity and even so as to the need to effect arrest. Denying a person of his liberty is a serious matter. The recommendations of the Police Commission merely reflect the constitutional concomitants of the fundamental right to personal liberty and freedom. A person is not liable to arrest merely on the suspicion of complicity in an offence. There must be some reasonable justification in the opinion of the officer effecting the arrest that such arrest is necessary and justified. Except in heinous offences, an arrest must be avoided if a police officer issues notice to person to attend the Station House and not to leave the Station without permission would do. 21. Then, there is the right to have someone informed. That right of the arrested person, upon request, to have someone informed and to consult privately with a lawyer was recognised by Section 56(1) of the Police and Criminal Evidence Act, 1984 in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d Siddharth (supra) makes it clear that the Indian Supreme Court has always been very sensitive and conscious about the individual's rights. The jurisprudence which is being evolved is that the police may not arrest a person only because it's permissible, the arrest should be justified also and must have grounds of arrest communicated forthwith. 19. Recently, in Prabir Purkayastha v. State (NCT of Delhi) (2024) 8 SCC 254, the Supreme Court reaffirmed that the grounds of arrest must be communicated in writing to the accused expeditiously. The practice of filling generic reasons in proforma arrest memos was strongly deprecated. 20. It is a settled proposition that the absence of specific grounds of arrest violates statutory and constitutional rights under Section 50 of Cr.P.C. and Article 22(1) of the Constitution. Any person has a fundamental and a statutory right to be informed about the grounds of arrest in writing and a copy of such written grounds of arrest have to be furnished to the arrested person as a matter of course and without exception at the earliest. The purpose of informing to the arrested person the grounds of arrest is salutary and sacrosanct inasmuch as this info ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed 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. ..... 43. We do not feel persuaded to examine these aspects at this stage because the same would require entering into the merits of the case. This would be within the domain of the court examining the matter after the filing of the chargesheet. The core issue in this appeal is regarding the illegality of the process whereby the appellant was arrested and remanded to police custody which does not require examining the merits of the case. ...... 45. We are of the firm opinion that once this Court has interpreted the provisions of the statute in context to the constitutional scheme and has laid down that the grounds of arrest have to be conveyed to the accused in writing expeditiously, the said ratio becomes the law of the land binding on all the courts in the country by virtue of Article ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ying upon law laid down by the Apex Court in this regard. Therefore, it is a specific contention of the petitioner that, there is a violation of his constitutional as well as statutory rights. 8. After considering the submissions as well as the documents produced on record, we do not find grounds of arrest being communicated to the petitioner as contemplated by Section 50 of the Cr.P.C. and explained by this Court as well as the Hon'ble Apex Court in its various judicial pronouncements. We are satisfied that there is a flagrant violation of Section 50 of the Cr, PC. As well as Article 22 (1) the constitution of India, and since the grounds of arrest are not communicated to the petitioner, making his arrest illegal. Resultantly, the Writ Petition is allowed and we declare that the arrest of the petitioner in relation to FIR No. 1191 of 2023 dated 31.10.2023 is illegal and in gross violation of fundamental rights of the petitioner and the consequential remand order dated 01.11.2023 passed by the J.M.F.C., Karad as well as the subsequent remand orders are null and void. In view of the declaration, the petitioner deserves to be released forthwith from the custody on furnis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed in the remand application dated 05.11.2024. However, this court has gone through the remand application dated 05.11.2024 and though it details the complete facts and investigation, it does not specify the grounds of arrest at the time the arrest was effected. This omission constitutes a direct violation of Section 50 of Cr.P.C., as elaborated in Prabir Purkayastha (Supra) . 29. It is also relevant to note that in Inder Pal Singh Gaba (supra), the petitioner was arrested on 25.04.2024 and his application for remand was moved on 25.04.2024 itself as recorded in para -25 of the order in W.P.(CRL) 1783/2024 in relation to FIR No.RC-05/2023/NIA/DLI registered by NIA. It is also relevant to note that Section 43 B of UAPA,1967 provides that any officer arresting a person under Section 43A of UAPA,1967 shall, as soon as may be, inform of the grounds of arrest. Thus, it is relevant to note that Section 43B of UAPA,1967 does not speak of the word "forthwith". It may also be noted that in the present case, the petitioner was arrested on 04.11.2024 at 12.40 PM and remand application was moved on 05.11.2024. 30. The Court considers that the arrest of the present petitioner in case FIR No.4 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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