Serving Grounds Of Arrest On Accused During Remand Not Valid, 'Contemporaneous Record' In Police Diary Necessary: Delhi High Court

The Delhi High Court has observed that serving grounds of arrest to an arrestee as part of the remand application moved by the Police before the Magistrate is no compliance with the requirements of law.

Justice Anup Jairam Bhambhani held that since grounds of arrest must exist before an arrest is made, there must be a contemporaneous record of the grounds of arrest in the police diary or other document.

Observing that there can be no reason or justification for an investigating officer or arresting officer to not communicate to an arrestee the grounds of arrest in writing, the Court said:

“This communication must happen simultaneously with the issuance, or as part, of the arrest memo. The purported mode of serving grounds of arrest as part of a remand application is therefore no compliance with the requirements of the law, since, inevitably, a remand application comes to be filed only much later when an arrestee is produced before the Magistrate.”

It further observed that merely arriving at a police station may not imply that a person is automatically under arrest and that it would depend on the facts of each case as to whether a person was placed under restraint of liberty while in the police station and, if so, at what stage and from what time.

The Court granted relief to an accused in a cheating case whose interim bail was initially made absolute by the ACMM but his regular bail was later cancelled by the sessions court.

The allegations against the accused was that he had assisted an Afghan national to emigrate to Spain, based on a fraudulently obtained Indian passport alongwith an Aadhaar Card and a PAN Card, in consideration of having received money. He was not named in the FIR. He was arrested after being interrogated by the police pursuant to issuance of notice under section 41A of Cr.P.C.

The Magistrate rejected police's remand application and granted him interim bail which was extended from time to time and was later made absolute. A revision petition was then moved by the prosecution before the sessions court which was allowed and the bail was cancelled.

On the maintainability of revision petition, the Court observed that the orders declining police custody remand were not interlocutory orders and were amenable to the revisional jurisdiction of the Sessions Court. The revision petition was therefore maintainable, it said.

Furthermore, the Court said that the the convenience of an investigating officer in printing-out multiple copies of a section 41A of Cr.P.C. notice will not serve as a valid or legal substitute for the procedure laid down by a Division Bench in Amandeep Singh Johar vs. State (NCT of Delhi) & Anr.

“ This court would also observe that a carbon copy (which is part of an indexed, serialized booklet) carries a certain authenticity, which was the reason for the procedure prescribed in Amandeep Singh Johar, which procedure must be scrupulously complied-with,” the Court said.

It further added that the grounds of arrest were never served upon the accused in the case, at any stage, in any form, or in any document which clearly vitiated his arrest.

Accordingly, the Court set aside the order cancelling bail of the accused and restored the order making his interim bail absolute. It held that the accused is entitled to remain on bail granted to him by the ACMM Court.

Title: VIKAS CHAWLA @ VICKY v. THE STATE NCT OF DELHI

Citation: 2025 LiveLaw (Del) 388

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