Accused Must Be Given Written Grounds Of Arrest In UAPA Cases Too : Supreme Court Extends Ratio Of 'Pankaj Bansal' Judgment

The Bench of Justices BR Gavai and Sandeep Mehta made the above finding in a judgment declaring the arrest of NewsClick founder and Editor-in-Chief Prabir Purkayastha's and his remand in a case under the Unlawful Activities (Prevention) Act 1967 as illegal.

In Pankaj Bansal, the top Court had held that merely reading out the grounds of arrest will not fulfil the mandate of Article 22(1) of the Constitution and Section 19(1) of the Prevention of Money Laundering Act which talks about the power to arrest.

The bench was hearing Purkayastha's special leave petition assailing a decision of the Delhi High Court upholding his arrest by the Delhi Police. The main gist of Purkayastha's arguments was that till date, the grounds of arrest have not been supplied. Senior advocate Kapil Sibal, appearing for Purkayastha, had relied upon Pankaj Bansal's ruling to support his arguments. Per contra, Delhi police had argued that Pankaj Bansal was peculiar to the statutory scheme of the PMLA and could not apply to UAPA or other laws that have their own provisions.

Accordingly, the Court, in the instant matter, examined the relevant provisions of the PMLA and the UAPA. Examining the same, the Court opined that there is no substantial difference in the language used under Section 19 of the PMLA and Section 43(B) (Procedure of arrest) of the UAPA. Having said that, the Court recorded that it is not persuaded to take the view that the wording of “'inform him of the grounds for such arrest” (in Pankaj Bansal's case) should not be applied in the UAPA cases.

“We find that the provision regarding the communication of the grounds of arrest to a person arrested contained in Section 43B(1) of the UAPA is verbatim the same as that in Section 19(1) of the PMLA.,” the Court added.

Elaborating, the Court said that the constitutional safeguard provided under Article 22(1) of the Constitution of India will apply to both the provisions i.e, Section 19 of the PMLA and Section 43 of the UAPA. As per this Article, no person who is arrested shall be detained in custody without being informed, as soon as may be, of the grounds for such arrest.

In this respect, it may be noted that, in the impugned judgment, the Delhi High Court had also observed that the judgment in Pankaj Bansal cannot be said to be squarely applicable to a case arising under the UAPA.

Requirement To Communicate The Grounds Of Arrest Under Article 22 Of The Indian Constitution Is Sacrosanct

The judgment, authored by Justice Mehta, also extensively stressed on the Right to Life and Personal Liberty and that any attempt to encroach the same has been frowned upon by the Court.

After cementing this background, the Court delved into the issue of whether informing of the grounds of arrest in writing is mandatory even when Article 22 does not state explicitly of such requirement.

To answer this, the Court drove its strength from the Constitution Bench's judgment in Harikisan v. State of Maharashtra and Others., 962 SCC OnLine SC 117. Therein, the Top Court had held that the communication of the grounds of detention to the detenue in writing and in a language which he understands is imperative. It was also stated that the order of detention would stand vitiated as the guarantee under Article 22(5) of the Constitution was violated.

Noting that the ratio rendered in Harikisan's case has been consistent in several other decisions of the Court, it was held:

“Hence, we have no hesitation in reiterating that the requirement to communicate the grounds of arrest or the grounds of detention in writing to a person arrested in connection with an offence or a person placed under preventive detention as provided under Articles 22(1) and 22(5) of the Constitution of India is sacrosanct and cannot be breached under any situation. Non-compliance of this constitutional requirement and statutory mandate would lead to the custody or the detention being rendered illegal, as the case may be.”

This Entire Exercise Was Done In A Clandestine Manner

Adverting to the facts of the case, the Court noted that the copy of the FIR was not shared with the appellant until after the remand order was passed. Further, the appellant was arrested on October 3, 2023 at 5:45 p.m. and was presented before the Remand Judge at his residence before 6:00 a.m. on the very next day. The Court took a strong exception against the fact that the appellant's counsel was not present during his remand and instead some other legal aid counsel was present.

“Apparently, this entire exercise was done in a clandestine manner and was nothing but a blatant attempt to circumvent the due process of law; to confine the accused to police custody without informing him the grounds on which he has been arrested; deprive the accused of the opportunity to avail the services of the legal practitioner of his choice so as to oppose the prayer for police custody remand, seek bail and also to mislead the Court.”

Notably, the remand order was already passed by the time appellant's counsel was informed about this development. Unquestionably, till that time, the grounds of arrest had not been conveyed to the appellant in writing., the Court added.

Imperatively, the Court also observed that the grounds of arrest, as set out in the remand application, were given to the appellant's advocate through WhatsApp only after the remand order was passed. In this respect, the Court also turned down the ASG's contention that the time of 6 AM was recorded in the remand order by mistake.

It may also be noted that the decision in Pankaj Bansal was pronounced on October 3, and the appellant was remanded to police custody on October 4. Based on this, the Court denied that the defence taken by the mentioned case would not apply since it was uploaded late.

Merely on a conjectural submission regarding the late uploading of the judgment, learned ASG cannot be permitted to argue that the ratio of Pankaj Bansal(supra) would not apply to the present case., the Court added before concluding:

“From the detailed analysis made above, there is no hesitation in the mind of the Court to reach to a conclusion that the copy of the remand application in the purported exercise of communication of the grounds of arrest in writing was not provided to the accused appellant or his counsel before passing of the order of remand dated 4th October, 2023 which vitiates the arrest and subsequent remand of the appellant.”

Other reports about the judgment can be read here.

Case Details: Prabir Purkayastha v. State., Diary No, 42896 of 2023

Citation : 2024 LiveLaw (SC) 376

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