Merely Supplying Warrant Of Arrest Notifying Penal Sections Without Mentioning Substance Of Charge Violates Article 22 Of Constitution: Calcutta HC
The Calcutta High Court has held that in the absence of notification of the substance of a warrant, the execution of the same becomes unconstitutional in terms of Article 22(2) of the Constitution read with Section 75 of the Cr P C. Justice Suvra Ghosh affirmed the interim bail since the arrest memo neither contained reasons for arrest nor were the grounds of arrest communicated as per Article...
The Calcutta High Court has held that in the absence of notification of the substance of a warrant, the execution of the same becomes unconstitutional in terms of Article 22(2) of the Constitution read with Section 75 of the Cr P C.
Justice Suvra Ghosh affirmed the interim bail since the arrest memo neither contained reasons for arrest nor were the grounds of arrest communicated as per Article 22 of the Constitution.
The petitioner /CBI was aggrieved by the order passed by the Additional Chief Judicial Magistrate, Alipore, South (24) Parganas on 29th March, 2025 in R.C. no. 220 of 2023 E 0019 of CBI, EO II, New Delhi dated 21st July, 2023. By the said order, the learned Magistrate has rejected the prayer for transit remand of the accused/opposite party and granted interim bail to him.
Counsel for the petitioner submits that a warrant of arrest was issued against the petitioner on 21st January 2019 by the Chief Judicial Magistrate, District Sagar, Madhya Pradesh. The opposite party was arrested in Kolkata on 29th March 2025 on the strength of the said warrant.
The memo of arrest discloses the penal sections under which the opposite party has been charged, as well as reasons for arrest. Therefore, the notification of the substance of the warrant was made to the opposite party in compliance with section 75 of the Code of Criminal Procedure, it was stated.
It was stated that the arrest memo was accompanied by the permanent warrant of arrest and the memo bears the signature of the father of the arrestee/opposite party. The arrest was made in compliance with the provisions of the Code of Criminal Procedure and should not have been faulted.
Referring to the prayer for bail of the opposite party, counsel for the petitioner submitted that the opposite party has referred to the alleged offences in the petition which means that he was aware of the charges against him.
Opposing this prayer, counsel for the opposite party submitted that grounds of arrest were not informed to him in terms of Article 22 of the Constitution of India and he was not in a position to defend himself. Also, the accused has been released on interim bail and shall appear before the concerned Court in terms of the direction of the Magistrate.
The warrant of arrest being issued in violation of Article 22 of the Constitution of India as well as section 75 of the Code of Criminal Procedure, the warrant is invalid in the eye of law and the opposite party has been rightly granted interim bail by the Magistrate.
Article 22(1) of the Constitution of India and section 75 of the Code of Criminal Procedure state as follows:
“22. Protection against arrest and detention in certain cases.- (1) No person who is arrested shall be detained in custody without being informed, as soon as may be, of the grounds for such arrest nor shall he be denied the right to consult, and to be defended by, a legal practitioner of his choice.”
“75. Notification of substance of warrant.- The police officer or other person executing a warrant of arrest shall notify the substance thereof to the person to be arrested, and, if so required, shall show him the warrant.”
In relying on the Supreme Court's judgement in Prabir Purkayastha's case, the court said to distinguish between a warrant of arrest which is a legal document issued by a Court of law authorizing enforcement of law to arrest on individual and a memo or arrest which is a formal internal communication used for conveying information.
The memo of arrest discloses the penal sections with which the opposite party is charged and as reasons for arrest, records that permanent warrant was issued by the concerned Court.
Court noted that while the counsel for the petitioner has stated that the memo of arrest contains the substance of the warrant as well as reasons for arrest, the reasons for arrest cannot be restricted to “permanent warrant was issued by the Hon'ble CJM Court, Sagar, Madhya Pradesh dated 21.01.2019.”
The warrant of arrest only refers to the penal sections and does not notify the substance of the warrant in terms of section 75/78(2) of the Code of Criminal Procedure to the person to be arrested. Even if it is held that the opposite party was given an opportunity to read the warrant of arrest, he was still not equipped with the knowledge of the substance thereof in order to defend himself since the warrant is bereft of such substance. The memo of arrest follows the warrant of arrest and in view of violation of the constitutional mandate in issuing the warrant of arrest, the memo of arrest which is devoid of the reasons and grounds of arrest cannot be said to be in accordance with law, it held while dismissing the plea.
Case: Central Bureau of Investigation v/s. Rajnikant Ojha
Case No: CRM (M) 1 of 2025
