Whether Grounds Of Arrest Must Be Furnished In Writing In Offences Other Than PMLA/UAPA? Bombay High Court Refers To Larger Bench

The Bombay High Court on Friday referred to a larger bench the issue whether grounds of arrest must be furnished to accused in writing in stringent offences like POCSO Act, MCOCA or the NDPS Act, similar to the position crystallised by the Supreme Court qua the Prevention of Money Laundering Act (PMLA) and the Unlawful Activities (Prevention) Act (UAPA).

The development comes after a division bench of Justices Sarang Kotwal and Shriram Modak noted that victims do not have any control over the investigation and the investigating officers' efficiency but, they are prejudiced when the accused in such stringent offences is released due to failure of the investigator to furnish grounds of arrest in writing.

Hence the bench deemed it significant to determine whether such mandate, set by the Supreme Court in Pankaj Bansal's case for PMLA and in Prabir Purkayastha's case for UAPA, also extends to other stringent laws. It observed,

"In cases involving heinous crimes like rape, murder, those under POCSO, MCOCA, NDPS, the victims and even the society are the sufferer. The victims do not have any control over the investigation and the investigating officers' efficiency or inefficiency. Therefore, if an accused is 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 bench observed.

Such lapse, the judges said, can be attributed to various factors like inefficiency, lack of awareness etc. due to which its consequences would be causing serious prejudice to the victims.

"In a given case, the investigating agency may have material in their possession that propensity of the accused indicated that he is likely to commit a similar offence, and that would be a serious threat to the security and safety of the potential victims in the offences like rape, under POCSO etc.. If an accused is released on that ground then there could be serious threat to the witnesses also. Therefore, there is need to strike a balance between the rights of the victims and the rights of the accused," the judges opined. 

The Court was dealing with over 45 petitions. It noted various conflicting judgments of the High Court on this very point and said that accused even in serious and heinous offences are seeking release on the ground that they were not furnished with the grounds of arrest.

The judges opined that section 50 of the CrPC, which pertains to communication of grounds of arrest, has to operate uniformly in all cases because it does not leave scope for discretion to the Court to consider the circumstances in which the accused is arrested or the gravity of the offence. The bench, however, pointed out that just like the accused has rights under Article 21 of the Constitution of India, even the victims of an offence have the 'right to live with dignity.'

The bench took note of the argument put forth by Advocate General Dr Birendra Saraf that if an accused in such heinous or serious offences, is granted bail or is released on the ground of non-compliance with section 50 CrPC, he can be 're-arrested.' However, senior counsel Amit Desai opposed to this argument saying that the same would violate the accused's rights under Article 21 and that the State should not be given a 'second chance.'

"We are inclined to agree with the Advocate General that there is no bar in re-arresting the persons who are released for non-furnishing the grounds of arrest in writing. What the accused are claiming in this situation, is that, they were arrested in violation to the provisions of CrPC and it infringes their constitutional right under Article 21 but if they are released on that ground and thereafter if the grounds of arrest are supplied to them, they cannot have any grievance," the judges emphasised. 

The purpose behind these provisions, the bench explained, is to make the accused aware as to why he was arrested and thereafter enable him to defend himself.

As regards, the controversy pertaining to the applicability of section 41A (notice to an accused prior to arrest) of the CrPC is concerned, the bench opined that the said provision is required to be issued to a person against whom a reasonable complaint is made or credible information is received or a reasonable suspicion exists that he has committed a cognizable offence; then the police officer has to issue a notice calling upon such a person to appear before such police officer.

"This provisions serves two purposes, first it prevents unnecessary arrests and secondly it aids in proper investigation. Therefore, this provision cannot be stretched to mean that in all cases including the offences punishable upto seven years, the notice has to be issued if the police officers want to arrest a person. Hence it cannot be said that serving of notice is a precondition of arrest of an accused even if the police officer is of the opinion that the arrest is required," the bench said. 

Giving illustrative examples, the bench said that if an accused is served with a 41A notice, s/he on receiving such a notice, can easily destroy the evidence, abscond or leave the country. It defeats the purpose of effective investigation.

"This may affect the cases where the offences are upto seven years of punishment viz. the offences under Section 420 of IPC or under Section 406 of IPC involving cheating or misappropriation of huge amounts wherein many persons are cheated. This may affect the investor's rights under the MPID Act. If the accused is given sufficient time before arrest, he can destroy the evidence or dispose of the property. In case of even serious offences like MCOCA he is likely to threaten the witnesses and in the cases of NDPS, the main offenders may get a hint. The investigation in all such cases will be seriously affected," the bench explained.  

It therefore, framed several questions with regards to the applicability of section 50 of the CrPC and referred the matter to a larger bench. 

The questions are as follows :

(1) Whether the ratio of the decisions in Pankaj Bansal Vs. Union of India, Prabir Purkayastha Vs. State (NCT of Delhi) are applicable to Section 50 of the CrPC, 1973 and involving the offences under the other statutes than Prevention of Money Laundering Act, 2002 & Unlawful Activities (Prevention) Act, 1967 ?

(2) Whether Section 50 of the CrPC mandates the furnishing of the grounds of arrest in writing to the accused ?

If it is held that the communication of grounds of arrest in writing is necessary under Section 50 of the Code of Criminal Procedure Code, 1973, then:

[i] Whether it has to be furnished at the time of arrest or any time before consideration of the first remand application ?

[ii] Whether the Court has discretion to consider such necessity depending on the gravity of the offence or circumstances in which the accused is arrested ?

[iii] Whether, in the given cases, the Court can consider the prejudice caused to the accused for not furnishing the grounds of arrest in writing ?

[iv] Before which forum the arrested person can raise his grievance for his release on this ground ? Whether it can 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 of India ?

[v] 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 Vs. Union of India or from the date of decision in Prabir Purkayastha Vs. State (NCT of Delhi) or from the date of decision in Mahesh Pandurang Naik Vs. State of Maharashtra decided on July 18, 2024.

If it is held that oral communication under Section 50 of the CrPC is sufficient, then whether it can be communicated within 24 hours of the arrest or at the time of first Remand or it has to be at the time of arrest.

If a person is released for non-compliance of Section 50 of the Code of Criminal Procedure, 1973, can he be arrested again after following due procedure after his release ?

Whether the notice under Section 41A of the Code of Criminal Procedure, 1973, is required to be given before arrest in all cases and in particular in the cases where the offence is punishable upto seven years, when the arrest of an accused is necessary ?

Appearances: 

Senior Advocates Amit Desai, Sudeep Pasbola along with Advocates Niranjan Mundargi, Ayaz Khan, Ganesh Gole, Taraq Sayed, Kushal Mor, Rishi Bhuta, Rahul Arote, Ali Kaashif Khan Deshmukh, Vinay Bhanushali, Ayush Pasbola, Vivek Pandey, Neha Patil, KR Shah, Ashish Dubey, Ujjwal Gandhi, Ankita Bamboli, Saakshi Jha, Prateek Dutta, Bhavi Kapoor, Vaishnavi Javehri, Parth Govilkar, CJ Joveson, Simran Patil, Vaibhav Jagtap, Kamlesh Satre, Anil Kamble, Amit Singh, Zehra Charania, Suyash Khose, Mangesh Kusurkar, Abhishek Nandimath, Hitendra Parab, Siddharth Sutaria, Chinmay Sawant, Vaibhav Mahajan, Ashwin Hirulkar Vishal Deshmukh, Manoj Gowd, Gopalkrishna Shenoy, Rohan Chauhan, Arif Ali, PK Sanghrajka, Parth Zaveri, Momin Ahmed, Snigdha Khandelwal, Hitanshi Gajaria, Zainabh Burmawala, Shirish Shigwan, SR Mishra, Sushil Gaglani, Rohit Singh, Sandeep Karnik, Nitin Gaware Patil, Narayan Rokade, Siddharth Agarwal, Hrushikesh Korhale, Pratibha Pawar, Vikrant Kadam, Siddharth Ghodke, Abhang Suryawanshi, Harish Jadhav, Kishore Ajetrao, Rahul Agarwal, Vritee Ssoni and  Shruti Adde instructed by Agarwal and Dhanuka Legal appeared for all the Petitioners.

Advocate General Dr Birendra Saraf along with Chief Public Prosecutor Hiten Venegavkar, Special Public Prosecutor Shishir Hiray, Additional Public Prosecutors Mankuwar Deshmukh, Manisha Mhatre, Arfan Sait, BV Homlambe-Patil, SR Agarkar, YM Nakhwa and Sharmila Kaushik and Advocates Ankur Pahade and Sanjay Kokane represented State. 

Advocate Aruna Kamat-Pai represented Union of India.

Special Prosecutor Shreeram Shirsat along with Advocate Shekhar Mane represented NCB.

Advocates Kuldeep Patil and Dhavalsinh Pati represented CBI.

Case Title: Vicky Kalyani vs State of Maharashtra (Criminal Writ Petition (Stamp) 24338 of 2024)

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