“Pankaj Bansal v. Union of India” – The Prospective-Retrospective Conundrum

The requirement to furnish written grounds of arrest raises a significant constitutional question regarding the retrospective or prospective application of the law laid down in Pankaj Bansal v. Union of India¹. The Supreme Court in “Pankaj Bansal” underscored the mandatory obligation of investigating authorities to furnish written grounds of arrest, and subsequent judicial interpretations have oscillated between prospective application, relying on the term “henceforth”, and the broader constitutional spirit of Article 22(1) and Section 50, Criminal Procedure Code, 1973 (now Section 47, Nagarik Suraksha Sanhita, 2023), which indicate that the said right has always existed as a fundamental safeguard. This divergence brings into sharp focus, the jurisprudential conflict between the Blackstonian theory of judicial declarations, which presumes retrospectivity, and the practical concerns of administrative feasibility. Thus, the central issue remains whether the Pankaj Bansal² ruling operates merely as a prospective procedural safeguard for future arrests or as a retrospective acknowledgment of an enduring constitutional right that has long been denied in practice.

Background

1. The callous approach of the investigating agencies in not complying with the procedure laid down in law at the time of arresting an accused has been prevalent since ages. Periodically, various Constitutional Courts have held that the failure to comply with the mandate of Article 22(1) of the Constitution and Section 50, Criminal Procedure Code, 1973 (or Section 47, Nagarik Suraksha Sanhita, 2023), i.e. non-supply of grounds of arrest to the accused vitiates an arrest as it violates the fundamental rights of the arrestee.³

2. The Supreme Court has time and again stressed on fulfilling the requirement of “communication” of the grounds of arrest to the detenu. In Harikisan v. State of Maharashtra⁴, the Constitutional Bench held that just verbally explaining the “grounds” of arrest to the detenu shall not serve the purpose of Article 22(5) of the Constitution. It not only curtails the right of the arrestee for an effective representation against the order of detention, it is also illogical to assume that a person who has just been arrested shall be in a position to remember all the grounds of arrest which have been read out to him. Although, the Constitution Bench judgment was concerned with the order of detention under Section 3(1)(a)(ii), Prevention Detention Act (4 of 1950), the Supreme Court has recently clarified in Prabir Purkayastha v. State (NCT of Delhi)⁵ that the Constitution Bench judgment shall ipso facto apply to arrests affected under other legislations as well.

Oral intimation versus written communication

1. The conundrum as to whether grounds of arrest have to just be “informed” to the accused orally or the authorities are bound to furnish the written copy of it have always been a persistent question that remained unanswered long haul but has been recently settled in Pankaj Bansal⁶. The Supreme Court has finally put a quietus to this by upholding the duty of the authorities to furnish the written copy of the grounds of arrest to the arrestee.

2. The Court has premised its stand on the basis of two reasonings, firstly, in order to eliminate a constant unending dispute between the arrestee and the investigating officer as to what were the exact grounds of arrest that were communicated. Secondly, the Constitution mandates conveyance of information to be in such a form that enables the arrested person to seek legal guidance and, thereafter, present a case for release/bail, and it shall not be practical for the arrested person to recall the exact grounds of arrest at a later stage with precision. The court was of the opinion that the sole purpose of the constitutional and statutory protection will only be achieved when the authorities furnish the written copy of grounds of arrest, irrespective of their length and detail to the accused, rather than merely reading it out.

3. Although, this is not the first time that courts have dealt with the issue of supplying written grounds of arrest to the accused. In 2018, the Delhi High Court in Rajbhushan Omprakash Dixit v. Union of India⁷. Expressed its strong disapproval over non-supply of the grounds of arrest by the Enforcement Directorate and held that the supply of the written copy of grounds of arrest was a mandatory requirement in compliance of Section 19(1), Prevention of Money Laundering Act, 2002 and mere informing (reading out) the grounds of arrest to the accused which are running into multiple pages, would not suffice. Relying on C.B. Gautam v. Union of India⁸, the Court was of the opinion that in case the arrested person wishes to apply for bail or challenge his remand order, it is not possible for him to recollect the exact particulars of the grounds of arrest which shall become a hinderance to avail his statutory remedy. However, the Supreme Court had subsequently transferred this petition to itself, which got disposed off as part of the batch along with “Vijay Madan Lal v. Union of India⁹”, thereby relegating the parties back to the Delhi High Court.

4. Nevertheless, the Supreme Court has now settled this obscurity with the decision in Pankaj Bansal¹⁰, and most investigating agencies are also complying with it in letter and spirit. However, the most significant issue that stems from the Pankaj Bansal judgment which is also a subject-matter of State of Karnataka v. Hemanth Datta¹¹ is as to whether the said judgment is retrospective or prospective in nature.

Specific interpretation of Pankaj Bansal

1. The Supreme Court in the case of Hemanth Datta¹², orally observed while stressing upon the excerpt in Pankaj Bansal¹³ judgment: “It would be necessary, henceforth, that a copy of such written grounds of arrest is furnished … ” that the word, henceforth, if was to be interpreted so as to make the relevant finding as prospective in nature, then Pankaj Bansal’s arrest in that case should not have been quashed in the first place.

2. Contrary to this observation, the Supreme Court in Ram Kishore Arora v. Enforcement Directorate¹⁴ had interpreted the word “henceforth” and given its verdict that the Pankaj Bansal¹⁵ decision needs to be followed prospectively and would apply to arrests carried out after 3-10-2023 (judgment pronouncement date of Pankaj Bansal).

Law on the retrospectivity theory

1. According to Blackstonian theory, it is not the duty of the Judges to lay down the law but to discover and declare the law already set in motion by the legislature. Normally, the law declared by a court will have a retrospective effect if not otherwise stated to be the contrary.¹⁶

2. The Supreme Court in Kanishk Sinha v. State of W.B.¹⁷, has recently reiterated its position with respect to retrospectivity of a judgment delivered by a Constitutional Court. The Court firmly clarified that laws enacted by the legislature are generally “prospective” unless a statute explicitly provides for retrospective operation. Conversely, rulings by a Constitutional Court or judicial interpretations of law are presumptively “retrospective”, the prospective application of a judgment is an exception, adopted to prevent undue hardship or injustice to those who acted in good faith under the earlier understanding of the law.

3. Similarly, in CIT v. Saurashtra Kutch Stock Exchange Ltd.¹⁸, the Supreme Court held that the Judges do not create law, they simply find it. The law is always constant, and a later ruling that alters a previous one does not make new law. Instead, it retroactively corrects a misunderstanding of the law, even if the incorrect interpretation had been in effect for some time.

Conclusion

In view of the aforesaid discussion, the spirit of the Pankaj Bansal¹⁹ judgment, which prioritises the transparency of the State’s actions, should be retrospectively applied to all arrests where an individual was arrested without being given written grounds of arrest. While this may create an uproar from all the investigating agencies, it is a necessary step to ensure that the procedural safeguards for personal liberty are not merely theoretical but are robustly protected in practice. This would not only rectify past injustices but also send a powerful message that the right to liberty is supreme and cannot be compromised by procedural convenience.