{"id":323563,"date":"2024-06-04T17:00:56","date_gmt":"2024-06-04T11:30:56","guid":{"rendered":"https:\/\/www.scconline.com\/blog\/?p=323563"},"modified":"2024-06-04T17:01:28","modified_gmt":"2024-06-04T11:31:28","slug":"preserving-foundational-rights-supreme-court-reaffirms-importance-informing-accused-grounds-of-arrest-uapa-offences","status":"publish","type":"post","link":"https:\/\/www.scconline.com\/blog\/post\/2024\/06\/04\/preserving-foundational-rights-supreme-court-reaffirms-importance-informing-accused-grounds-of-arrest-uapa-offences\/","title":{"rendered":"Preserving Foundational Rights: Supreme Court Reaffirms Importance of Informing Accused of Grounds of Arrest in UAPA Offences"},"content":{"rendered":"
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B<\/span>y its very nature, adherence to the principles of natural justice may seem to be an obvious, fundamental, and non-controversial subject, yet this is not the case in Indian criminal law jurisprudence. In the recent past, the fundamentals of arrest and remand, particularly the rights of individuals to be informed of the grounds of their arrest, have become a theme of extensive debate. A vital aspect of these discussions is whether reasons of arrest\/detention should be communicated in writing to the detainee or arrestee. This article delves into the critical issue of how and when a person should be informed of the grounds of their arrest, specifically in the context of the Unlawful Activities (Prevention) Act, 1967<\/a> (UAPA).<\/p>\n

A. Laying the foundation in Pankaj Bansal<\/span> v. Union of India<\/span><\/h4>\n

In Pankaj Bansal<\/span> v. Union of India<\/span>1<\/sup><\/a>, the Supreme Court, in context of the Prevention of Money-Laundering Act, 2002<\/a> (PMLA), upon referring to its earlier decisions in Vijay Madanlal Choudhary<\/span> v. Union of India<\/span>2<\/sup><\/a> and V. Senthil Balaji<\/span> v. State<\/span>3<\/sup><\/a>, reaffirmed the following principles:<\/p>\n

(i<\/span>) Officers authorised to make arrest under the PMLA must adhere to inherent safeguards outlined in Section 19<\/a> of the PMLA<\/a>.<\/p>\n

(ii<\/span>) The authorised officer must document reasons for believing that the person is guilty of an offence and warrants arrest.<\/p>\n

(iii<\/span>) The arrested person must be informed of the grounds for arrest, in compliance with Article 22(1)<\/a> of the Constitution of India<\/a>.<\/p>\n

(iv<\/span>) The arrested person must be presented before a Magistrate within 24 hours, as required by Section 167<\/a> of the Code of Criminal Procedure, 1973<\/a> (CrPC).<\/p>\n

(v<\/span>) The investigating agency must convince the Magistrate of the necessity for the accused’s custody through substantial evidence.<\/p>\n

(vi<\/span>) Section 19<\/a> of the PMLA<\/a> does not specify how the arrested individual should be informed of the grounds of the arrest. This aspect was also not explicitly discussed in Vijay Madanlal Choudhary<\/span>4<\/sup><\/a><\/span> and V. Senthil Balaji<\/span>5<\/sup><\/a>.<\/p>\n

(vii<\/span>) To ensure proper compliance with Article 22(1)<\/a> of the Constitution of India<\/a>, which guarantees that an arrested person is promptly informed of the grounds of arrest, it is crucial that the method of conveying the grounds is meaningful. In this regard, the Supreme Court observed as below:<\/p>\n

36.<\/span> 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 arrest person as a matter of course and without exception.<\/span> 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….<\/span><\/p>\n

37.<\/span> 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<\/span> and, thereafter, present a case before the Court under Section 45 to seek release on bail, if he\/she so chooses….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) of the Act of 2002.<\/p>\n

*     *     *<\/p>\n

39.<\/span> On the above analysis, to give true meaning and purpose to the constitutional and the statutory mandate of Section 19(1) of the Act of 2002 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.<\/span>6<\/sup><\/a><\/p>\n

B. The case in Prabir Purkayashta<\/span> v. State (NCT of Delhi)<\/span><\/h4>\n

In Prabir Purkayastha<\/span> v. State (NCT of Delhi)<\/span>7<\/sup><\/a>, an FIR dated 17-8-2023 (FIR) was registered for offences punishable under Sections 13<\/a>, 16<\/a>, 17<\/a>, 18<\/a>, and 22-C<\/a> of the UAPA<\/a>. In pursuance of the FIR, the officers of the PS Special Cellcarried out extensive raids at the residential premises of the appellant and a company, namely, PPK Newsclick Studio Pvt. Ltd. (PPK Newsclick) of which the appellant was a director.<\/p>\n

During the search and seizure proceedings, numerous documents, and digital devices of the appellant, PPK Newsclick and its employees were seized. The appellant was arrested in relation to the FIR on 3-10-2023 by way of an arrest memo prepared at PS Special Cell. Notably, the arrest memo was prepared in a computerised format and did not contain any column setting out the grounds of arrest.<\/p>\n

Eventually, the appellant was presented before the Additional Sessions Judge 02, Patiala House Court (remand Judge) on 4-10-2023 sometime before 6.00 a.m. By way of an order (remand order) passed on the same day, the remand Judge remanded the appellant to police custody of seven days.<\/p>\n

Aggrieved by the passing of the remand order, the appellant promptly preferred a criminal miscellaneous case before the Delhi High Court which came to be rejected by a judgment8<\/sup><\/a> dated 13-10-2023. The aforesaid order passed by the Single Judge of the High Court was challenged in a petition seeking special leave of the Supreme Court.<\/p>\n

(i<\/span>) Case of the appellant<\/span><\/p>\n

Before the Supreme Court, the appellant criticised the remand proceedings as having been “manipulated” and argued that at the time of arrest and even until the passing of the remand order, a copy of the FIR was not shared with the appellant affording him an opportunity to familiarise himself with the nature of the allegations.<\/p>\n

The appellant contended that the FIR is virtually nothing, but a second FIR filed on the same set of underlying facts. As such, another FIR dated 26-8-2020 had already been registered by PS Economic Offences Wing (EOW FIR) alleging the violation of the foreign direct investment (FDI) regulations and other laws applicable to the appellant and PPK Newsclick. By treating the EOW FIR as a foundational document disclosing predicate offences, ED registered an ECIR for offences punishable under Sections 3<\/a> and 4<\/a> of the PMLA<\/a>. Thereafter, ED carried out extensive search and seizure operations at various places including the office of PPK Newsclick. Ultimately, the ECIR registered by ED was put to challenge by PPK Newsclick and interim reliefs were granted in relation to the same by the High Court. As per the appellant, it was because of this reason that the new FIR came to be registered.<\/p>\n

The appellant argued that the contents of the FIR were never disclosed to him. Further, it was an admitted position that the FIR was not made available in the public domain nor a copy of the same was supplied to the appellant until his arrest and subsequent remand. Thus, the appellant argued that the non-supply of the FIR was in clear violation of the fundamental rights enshrined in Articles 20<\/a>, 21<\/a> and 22<\/a> of the Constitution of India<\/a>.<\/p>\n

It was only when the appellant filed an application before the remand Judge seeking a certified copy of the FIR that the same was provided to the appellant’s counsel on 5-10-2023 i.e.<\/span> well after the appellant had been remanded to police custody.<\/p>\n

In addition to having not been informed of the contents of the FIR, the appellant contended that he was also not informed of the grounds of arrest thereby violating the constitutional mandate under Article 22(1)<\/a> of the Constitution of India<\/a> and Section 50<\/a> CrPC<\/a>. In this regard, the appellant relied upon the case in Pankaj Bansal<\/span>9<\/sup><\/a> to argue that the mere passing of successive remand orders would not be sufficient to validate the initial arrest, if such arrest was not in conformity with law.<\/p>\n

While arguing on the applicability of the decision in Pankaj Bansal<\/span>10<\/sup><\/a> the appellant submitted that the provisions under Section 19(1)<\/a> of the PMLA<\/a> were pari materia<\/span> to Section 43-B(1)<\/a> of the UAPA<\/a>. Addressing the prospective applicability of the Pankaj Bansal<\/span>11<\/sup><\/a><\/span> (as subsequently clarified in Ram Kishor Arora<\/span> v. Enforcement Directorate<\/span>12<\/sup><\/a>), the appellant submitted that the decision in Pankaj Bansal<\/span>13<\/sup><\/a> would still continue to apply since the aforesaid judgment was pronounced on 3-10-2023 whereas the remand order was passed on 4-10-2023. Thus, as per the appellant, viewed from any angle, his arrest was made in violation of the constitutional mandate warranting the quashing of the remand order and release of the appellant from custody forthwith.<\/p>\n

(ii<\/span>) Case of the respondent<\/span><\/p>\n

The State (respondent) vehemently opposed the plea of the appellant seeking quashing of the remand order and release of the appellant from custody. The respondent made the following arguments in support of its case:<\/p>\n