NewsClick Case | Supplying Grounds Of Arrest In Writing Not Necessary Under UAPA : Delhi Police To Supreme Court

A bench of Justices BR Gavai, PS Narasimha, and Prashant Kumar Mishra was hearing the special leave petitions by the duo assailing a decision of the Delhi High Court upholding their arrest by the Delhi Police in a case under the Unlawful Activities (Prevention) Act over alleged Chinese funding to promote anti-national propaganda. Last month, this case was mentioned before Chief Justice DY Chandrachud by Senior Advocate Kapil Sibal for an urgent hearing. Subsequently, when the matter was taken up, the bench issued notice in both petitions, seeking the Delhi police's response.

During the latest hearing, Senior Advocate Kapil Sibal, appearing for Purkayastha, questioned the legality of his arrest. The host of criminal charges he has been slapped with, including of allegedly committing offences under Sections 13, 16, 17, 18, and 22 of the Unlawful Activities (Prevention) Act, as well as Sections 153A and 120B of the Indian Penal Code, were not tenable, the senior counsel asserted. "Even if you accept everything, no offence is made out under the UAPA," Sibal told the court. The main thrust of his argument, however, was the non-supply of the grounds of arrest at the time of Purkayastha's arrest. Pointing to the Pankaj Bansal ruling in which the top court quashed arrests under the Prevention of Money Laundering Act by the Enforcement Directorate (ED) for not furnishing the grounds of arrest in writing to the detenus, Sibal argued -

"There are no grounds. The special public prosecutor submitted that the grounds of arrest were duly informed to the accused at the time of arrest and everything has been mentioned in the arrest memo. He further said that the family members were also informed about the arrest. In the counter-affidavit of the State, it is submitted that the law does not require the grounds or time of arrest to be mentioned in the remand application. The State has said that these were mentioned in the case diary that was perused by the special judge, who was pleased to grant police custody. They have also mentioned that the two arrestees saw and signed the arrest memo. This is their stand. Obviously, the two were not served with grounds of arrest. Referring to the Pankaj Bansal judgment, the high court says that the UAPA is different than PMLA. The language is similar. You cannot differentiate between the UAPA and the PMLA on this ground and ex facie, this order is bad. In any case, Article 22 of the Constitution is common to both. And, Bansal says orally communicating reasons for arrest is no communication. It has no value at all." 

Sibal also raised alarms over the time mentioned in the special judge's order remanding Purkayastha to police custody. The senior counsel informed the court that although he was produced before the magistrate at 6 in the morning, the order was passed much later. "What is happening? This must be pre-planned. They are saying that 6 AM is mentioned in the order because that was the time when Purkayastha was produced. But this is against a high court rule saying that an order granting remand should be written at the time when it was announced in the presence of the accused. There's another rule requiring a magistrate to allow time to an accused wishing to be represented by a counsel who will argue against a remand...Both have been violated."

Senior Advocate Siddhartha Dave, appearing for co-accused Chakraborty, echoed the submissions made by Sibal. He also mentioned that Amit Chakraborty was arrested despite not being mentioned in the first information report (FIR) that named Purkayastha, Gautam Navlakha, and Neville Roy Singham. According to the FIR, Dave explained, Chakraborty is a shareholder of the company owning NewsClick. Dave added, "There are many other shareholders who are neither arrested, nor proceeded against. Chakraborty holds 0.092 percent in the company. He has no control over the content nor the administration of the company."

Although Purkayastha's lawyer was present at the time of the remand, Chakraborty was unrepresented, Dave told the court. "Chakraborty challenged the remand order in the high court, which says it cannot countenance how he got hold of the remand application or the order, when there was no counsel before the special judge appearing on his behalf. There's nothing secretive about this and he has stated in his petition that he got it from the co-accused. Not only this, it was the judicial officer's responsibility to ensure that there was no fundamental right violation of an accused or an arrestee. Since the remand order is bad not because of a technicality but because of a fundamental right violation, it cannot be cured by subsequent remand orders."

Requirement under Article 22 of the Constitution met, supplying grounds of arrest in writing not required: ASG SV Raju

In response to the petitioners' submissions, Additional Solicitor-General SV Raju first submitted that even if an order remanding an accused to police custody was held to be bad in law, such a verdict would not automatically entitle the person in custody to bail, unless a bail plea is moved and allowed. Such a person would be sent to judicial custody if the remand order is set aside, the law officer told the court. He also insisted that the requirement under Article 22 of the Constitution was met inasmuch as Purkayastha and Chakraborty were informed of the reasons for their arrest. Not only this, the arrest memo also mentioned the reasons, which are to prevent them from committing any further offence, to ensure proper investigation, and prevent any attempt to tamper with evidence or influence witnesses.

"If you look at Article 22 of the Constitution, as far as ground of arrest are concerned, two things are required: 'informed' and 'as soon as maybe'. It is not immediate, but as soon as maybe. It also does not say 'informed in writing', but only 'informed'. It would be one thing to say that the grounds are wrong. But the grounds of arrest are writ large on the arrest memo. The requirement under Article 22 is complied with."

Vehemently protesting against the petitioners' contention that the Pankaj Bansal ruling would apply even to offences under the UAPA, ASG Raju said, "Pankaj Bansal's case was in the context of the peculiar provisions of the PMLA, which are missing in the UAPA. Its ratio cannot be bodily picked up and applied to the Unlawful Activities (Prevention) Act."

The law officer also opposed Sibal's request for interim bail for his client on grounds of his advanced age and medical conditions, saying that Purkayastha was an "extended limb of Chinese espionage". This remark drew Sibal's opprobrium, with the senior counsel saying, "Because the Chinese have allegedly invested in the company, they are being proceeded against under the UAPA. The Chinese have also invested in public authorities. Should UAPA charges be initiated against them? How can he say these things?"

Justice Mishra, however, interjected to defend the law officer bringing up the allegation regarding Chinese funding and espionage. "It is there in the allegations. The facts of the case cannot be totally ignored. How can we say that you can't mention it?"

Not only have the facts been disputed, but these cannot be brought up when we are arguing purely legal points. "If you want me to argue on merits, I will. An intervention of this nature is very unfortunate in response to a medical bail plea. The man is 75 years old, he has had multiple episodes while in jail. He is an asthma patient. See the kind of diseases he is suffering from..."

"Every economic offender comes with a medical ground to ask for bail. Now it has become a fashion. Poor, downtrodden people will never get bail on medical grounds. It's unheard of. It's only the rich and the affluent, the economic offenders, who get medical bail," ASG Raju exclaimed, before adding that Purkayastha will be provided the best treatment possible in jail.

To this, Sibal quickly countered, "What is the prejudice caused to them if he is released? Impose whatever conditions you want to impose. He has not been examined once since he went there."

Finally, Justice Gavai directed the hearing to be adjourned. He said that the present combination was not the routine one and hence, for the special combination to continue, orders need to be obtained from the Chief Justice. The judge explained, "We'll have to ask the chief justice if a special bench can be constituted. It is not in our hands."

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