Bombay High Court: In a case wherein, the petitioner-accused was apprehended for carrying the contraband and FIR under the provisions of the Narcotic Drugs and Psychotropic Substances Act, 1985 (‘the NDPS Act’) was lodged, he stated that his detention was illegal because the grounds of arrest were not given to him in writing at the time of arrest, the Division Bench of Sarang V. Kotwal* and S.M. Modak, JJ., referred the following questions for consideration to a Larger Bench:
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Whether the ratio of the decisions in Pankaj Bansal v. Union of India, (2024) 7 SCC 576 (‘Pankaj Bansal Case’), Ram Kishor Arora v. Enforcement Directorate, (2024) 7 SCC 599, Prabir Purkayastha v. State (NCT of Delhi), (2024) 8 SCC 254 (‘Prabir Purkayastha Case’), were applicable to Section 501 of the Criminal Procedure Code, 1973 (‘CrPC’) and involving the offences under the other statutes than Prevention of Money Laundering Act, 2002 (‘PMLA’) and Unlawful Activities (Prevention) Act, 1967 (‘UAPA’)?
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Whether Section 50 of CrPC mandated the furnishing of the grounds of arrest in writing to the accused?
Background
On 11-05-2023, the petitioner was apprehended, and his anticipatory bail application was rejected in March 2024, and he was arrested on 28-09-2024. He stated that the grounds of arrest were not given to him in writing at the time of arrest and, thus, his detention was illegal. Petitioner filed the present application claiming his release for violation of the mandatory provisions of Section 50 of CrPC and Section 52 of the NDPS Act. Thereafter, the petitioner’s first remand was obtained on 29-09-2024.
Analysis, Law, and Decision
1. The first issue for consideration was “whether the requirements under Section 50 of CrPC regarding the communication to be in written or oral communication were sufficient?”.
The Court rejected the contention that if the accused had applied for anticipatory bail and after due consideration of arguments of both the sides and the material produced; it was rejected; then if he was arrested, in that case the grounds of arrest were not required to be served on him as he was aware as to why he was arrested. The Court opined that if the said contention was accepted then that would carve out an unfair category of the accused who exercise their statutory remedy of applying for anticipatory bail under Section 4382 of CrPC. They would be deprived of the compliance of requirement or necessity enjoined on the investigating officers to furnish the grounds of arrest.
The Court opined that whether the accused had preferred anticipatory bail application or not should not make a difference, and it would be the duty of the investigating agency to communicate to the accused as to why he was arrested.
The Court stated that the bare reading of Section 50 of CrPC did not lay down that the requirement of communicating forthwith must be in writing. The Court opined that under some circumstances, it would not be possible to prepare the grounds of arrest in writing and serve them to the accused and the word ‘forthwith’ would also have to be construed accordingly.
The Court also stated that Section 50-A3 of CrPC also provided safeguards against arbitrary arrest and keeping the accused in custody arbitrarily. It was the duty cast on the police officer making arrest to forthwith give information regarding such arrest and the place where he was held, to his friends, relatives or other persons as disclosed or nominated by the arrested person and it was the duty of the police officer to inform the arrested person of his rights under Section 50-A of CrPC. The Court stated that in the entire scheme of Section 50-A, the wordings used were ‘forthwith give the information’ and thus, Sections 50 and 50-A of CrPC would have to be read together.
The Court opined that it was important to communicate forthwith to the arrested accused as to why he was arrested and that a copy of the remand report, particularly at the time of obtaining first remand, must be given to the accused or his Advocate so that they could resist grant of remand on the very first occasion. It was necessary that some rules were framed, or provision was made to ensure fair opportunity to the accused to resist his custody on the very first occasion when he was produced before the Magistrate.
The Court opined that Article 21 of the Constitution offered protection not only to the person who was being arrested but also to the victim to live the life of dignity. Therefore, in the heinous cases like those involving the offence of rape or heinous sexual assault under POCSO and even families of the victims of murder deserve protection under Article 21. Similarly, the victims also had their own rights and in cases involving heinous crimes like rape, murder, those under POCSO, MCOCA, NDPS, the victims and even society, were the sufferers. The victims did not have any control over the investigation and the investigating officers’ efficiency or inefficiency. Therefore, if an accused was released on the ground of non-furnishing of the grounds of arrest in writing if required under Section 50 of CrPC that would cause serious prejudice to the victims.
The Court agreed with the Advocate General for the respondents that there was no bar in re-arresting the persons who were released for non-furnishing the grounds of arrest in writing.
The Court opined that it was inclined to refer the present issue to a Larger Bench for consideration.
2. The other issue was “whether there was necessity of issuing notice under Section 41-A4 of CrPC?”.
The Court noted that the petitioner had submitted that the notice under Section 41-A of CrPC was necessary before effecting arrest in all cases and definitely for the cases involving offences punishable upto seven years under Section 41-A of CrPC.
The Court opined that it was not the requirement of law where the police officers want to arrest a person, they must give notice under Section 41-A to the accused and when the arrest of a person was not required, only then the notice was required to be issued. The Court stated that if it was held that in all cases before arrest and particular in the cases involving offences upto seven years, the notice was required to be issued under Section 41-A, then it could be argued that once notice was issued, it would mean that the police officers did not want to arrest the accused which would run contrary to the express provision of Section 41-A of CrPC.
The Court stated that the accused person on receiving such a notice could easily destroy the evidence, abscond, or leave the country and it would defeat the purpose of effective investigation.
The Court thus referred the following questions for consideration to a Larger Bench:
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Whether the ratio of the decisions in Pankaj Bansal v. Union of India, (2024) 7 SCC 576 (‘Pankaj Bansal Case’), Ram Kishor Arora v. Enforcement Directorate, (2024) 7 SCC 599, Prabir Purkayastha v. State (NCT of Delhi), (2024) 8 SCC 254 (‘Prabir Purkayastha Case’), were applicable to Section 50 of CrPC and involving the offences under the other statutes than PMLA and UAPA?
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Whether Section 50 of CrPC mandated the furnishing of the grounds of arrest in writing to the accused?
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If it was held that the communication of grounds of arrest in writing was necessary under Section 50 of CrPC, then:
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Whether it must be furnished at the time of arrest or any time before consideration of the first remand application?
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Whether the Court had discretion to consider such necessity depending on the gravity of the offence or circumstances in which the accused was arrested?
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Whether, in the given cases, the Court could consider the prejudice caused to the accused for not furnishing the grounds of arrest in writing?
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Before which forum the arrested person could raise his grievance for his release on this ground? Whether it could be Magistrate’s Court granting remand, Sessions Court, Single Judge of this Court exercising jurisdiction in bail matters or before the Division Bench exercising powers under Article 226 of the Constitution?
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For implementation of this mandate, what should be the cut-off date? Whether it should be from the date of the decision in Pankaj Bansal Case (supra) or from the date of decision in Prabir Purkayastha Case (supra) or from the date of decision in Mahesh Pandurang Naik v. State of Maharashtra, Criminal Writ Petition [Stamp] No.13835/2024, decided on 18-07-2024.
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If it was held that oral communication under Section 50 of CrPC was sufficient, then whether it could be communicated within 24 hours of the arrest or at the time of first remand or it had to be at the time of arrest.
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If a person was released for non-compliance of Section 50 of CrPC, 1973, could he be arrested again after following due procedure after his release?
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Whether the notice under Section 41-A of CrPC was required to be given before arrest in all cases and in particular, in the cases where the offence was punishable upto seven years, when the arrest of an accused was necessary?
The Court opined that some clear and definite guidelines were required to be issued to the Courts of Magistrates and to the investigating agencies to follow the procedure of giving a remand report sufficiently in advance to the arrested accused before his first remand application was considered by the appropriate Court. The Court directed the Registry to place the present order before the Chief Justice for consideration for placing it before a Larger Bench consisting of three or more Judges.
[Vicky Bharat Kalyani v. State of Maharashtra, 2025 SCC OnLine Bom 193, decided on 31-01-2025]
*Judgment authored by: Justice Sarang V. Kotwal
Advocates who appeared in this case:
For the Petitioner: Senior Advocate Sudeep Pasbola; Senior Advocate Amit Desai; Advocate Rishi Bhuta a/w Advocate Vivek Pandey, Advocate Neha Patil, Advocate K.R. Shah, Advocate Ashish Dubey, Advocate Ujjwal Gandhi, Advocate Ankita Bamboli, Advocate Saakshi Jha, Advocate Prateek Dutta, Advocate Bhavi Kapoor, Advocate Vaishnavi Javehri and Advocate Parth Govilkar; Binod Agarwal (In-person); Advocate Niranjan Mundargi i/b. Advocate Vinay J. Bhanushali; Advocate C.J. Joveson i/b. Advocate Simran Patil; Advocate Vaibhav Jagtap; Advocate Kamlesh Mahadev Satre; Advocate Saakshi Jha, Advocate Prateek Dutta, Advocate Bhavi Kapoor; Advocate Anil S. Kamble; Ayush Pasbola; Advocate Amit Singh; Advocate Ayaz Khan; Advocate Zehra Charania; Advocate Suyash Nitin Khose a/w Mangesh Kusurkar, Abhishek Nandimath; Advocate Taraq Sayed; Advocate Zehra Charania; Advocate Hitendra Parab; Advocate Rahul Arote; Advocate Siddharth Sutaria a/w Advocate Suyash Nitin Khose, Advocate Chinmay Sawant, Vaibhav Mahajan and Advocate Ashwin Hirulkar; Advocate Saakshi Jha, Advocate Prateek Dutta, Advocate Bhavi Kapoor; Advocate Vishal M. Deshmukh; Advocate Manoj R. Gowd; Advocate Rishi Bhuta a/w Advocate Manish Bohra, Advocate Neha Patil, Advocate K.R. Shah, Advocate Ashish Dubey, Advocate Ankita Bamboli, Advocate Vaishnavi Javheri, Advocate Parth Govilkar; Advocate Gopalkrishna Shenoy, Advocate Kushal Mor i/b. Advocate Rohan Chauhan; Advocate Ganesh Gole i/b. Advocate Aarif Ali; Advocate P.K. Sanghrajka a/w Advocate Parth H. Zaveri i/b. Advocate Momin Musaddique Ahmed; Advocate Ali Kaashif Khan Deshmukh a/w Advocate Snigdha Khandelwal, Advocate Hitanshi Gajaria, Advocate Zainabh Burmawala, Advocate Shirish Shigwan; Advocate S.R. Mishra; Advocate Anil S. Kamble; Advocate Rishi Bhuta a/w Advocate Ajay Bhise, Advocate Neha Patil, Advocate K.R. Shah, Advocate Ashish Dubey, Advocate Ankita Bamboli; Advocate Siddharth Sutaria a/w Advocate Suyash Nitin Khose, Advocate Chinmay Sawant, Advocate Vaibhav Mahajan, Advocate Ashwin Hirulkar
For the Respondents: Advocate General Birendra Saraf a/w Public Prosecutor H.S. Venegavkar; APP M.M. Deshmukh, APP M.H. Mhatre; APP S.R. Agarkar; APP B.V. Holambe Patil; Advocate Aruna S. Pai; APP Arfan Sait; APP S.R. Agarkar; Advocate Nitee Punde a/w Advocate Mamta Omle; Advocate Siddharth Chandrashekar; APP Sharmila S. Kaushik; APP Y.M. Nakhwa; Ankur Pahade, Sanjay Kokane i/b. Special Public Prosecutor Shishir Hiray; Advocate Kuldeep Patil a/w Advocate Dhavalsinh V. Patil.
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1. Corresponding Section 47 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (‘BNSS, 2023’)
2. Section 482 of BNSS, 2023
3. Section 48 of BNSS, 2023
4. Section 35 of BNSS, 2023