NewsClick Case | Supreme Court Notes That Remand Order Against Purkayastha Was Passed Before Informing His Lawyer, Questions Delhi Police

Senior Advocate Kapil Sibal, appearing for Purkayastha, submitted that he was arrested on the evening of October 3, 2023. He was produced before the Magistrate next day, early morning at 6 AM. Sibal apprised the Court that, at that time, only the Additional Public Prosecutor was present alongwith along with legal aid counsel. It was further submitted that Purkayastha's lawyer was not informed. When Purkayastha objected to this, the Investigating officer informed his counsel through telephone, and the remand application was sent to the lawyer on WhatsApp (at around 7.07 AM). The lawyer sent the objections to remand through WhatsApp a little while later. However, the most striking aspect of these developments is that the remand order is recorded to have been passed at 6 AM.

Notably, when the Additional Solicitor General SV Raju commenced his arguments, Justice Mehta categorically asked him why Purkayastha's lawyer was not informed. Without mincing any words, Justice Mehta stated:

“First please answer this, why did you not inform his lawyer? What was the hot haste in producing him at 6 AM? You arrested him at 5.45 PM the previous day. You had the whole day before you. Why the haste?”

Justice Gavai, echoing this sentiment, said that the principles of natural justice required that Purkayastha's lawyer be present when the remand order was passed. Elaborating, he said that the accused could have been produced at 10 AM or 11 AM instead.

Defending this, ASG said that the accused was produced at 6 AM because the police wanted to do an early search. 

He also stated that the Trial Judge had recorded the time of remand order as 6 AM by mistake. He tried explaining to the Bench that 6 AM was the time of the production and not the order. “That cannot be the time when the remand order could have been passed. They are trying to take advantage of a mistake.,” the Union officer added.

However, the Bench declined to accept this reasoning. “You just can't convince us to take a different view regarding the time Mr.Raju.,” Justice Mehta stated. Justice Mehta also reasoned that there is an assumption regarding the correctness of the time recorded in a judicial order. He firmly added that the Court will take no judicial notice of anything except what is written on the order.

When ASG tried to convince the Bench by submitting that the lawyer had sent his objections after the remand application was shared with him, Justice Gavai said that the same was “redundant” and orally remarked, “This is like giving an opportunity of hearing after the order was passed.”

The bench was also not impressed with the ASG's argument that the subsequent remand orders will validate the first remand, even if it is assumed to be illegal. The bench stated that if the first remand is found to be vitiated for not informing the grounds of arrest, then the subsequent remand orders will also lose their basis.

The bench was hearing Purkayastha's special leave petition assailing a decision of the Delhi High Court upholding his arrest by the Delhi Police. Co-accused and NewsClick human resources head Amit Chakraborty had also approached the top court challenging his arrest, but he was allowed to withdraw his plea after he turned approver for the Enforcement Directorate and was granted a pardon.

The main thrust of Sibal's arguments was that till date, the grounds of arrest have not been supplied. In aid of this contention, Sibal pointed 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 accused.

He pointed out that the arrest in the case happened after the Supreme Court pronounced the judgment in the Pankaj Bansal case. Thus, the grounds of arrest must be supplied in writing in the present case.

On Delhi Police's argument that the remand application contained the grounds of arrest, Sibal said that “Law makes a distinction between grounds of arrest and remand application. If grounds of arrest are given, I can inform the lawyer in 24 hours and he can defend me.”

With respect to this, Justice Mehta told the ASG that the grounds of arrest must be communicated at least before the accused was produced. He reasoned that the accused could not resist his remand unless he was given the grounds of arrest.

It may be noted that the Delhi High Court had reasoned that grounds of arrest were conveyed to the accused persons, and as such, there was no procedural infirmity or violation of any provisions under UAPA or the Constitution. The single judge had also observed that the Supreme Court's judgment in Pankaj Bansal, directing the ED to inform the grounds of arrest in writing to the accused, cannot be said to be squarely applicable to a case arising under the UAPA.

Addressing this, Sibal said that though the High Court has held that furnishing grounds of arrest in writing is not mandatory under UAPA, in the same breath, it has also said that it is advisable to give the grounds in writing. To quote this bit from the High Court's judgment:

“Keeping in view the law laid down by the Supreme Court in Pankaj Bansal (supra), and also considering the stringent provisions of UAPA, it would be advisable that the respondent, henceforth, provide grounds of arrest in writing, though after redacting what in the opinion of the respondent would constitute “sensitive material”.

During the proceedings, when ASG submitted that the remand application contains the grounds of arrest and is substantial compliance, Justice Gavai swiftly said, “That is no more a good law in view of Pankaj Bansal.”

However, ASG submitted that he had no reason to believe that Pankaj Bansal would apply at the time of arrest. This was because the judgment was pronounced on the same date i.e, October 3rd. 

At the afternoon session, Advocate Zoheb Hossain (For Delhi Police) supplemented ASG's submissions. He began by arguing that not supplying grounds of arrest in writing does not violate any constitutional provisions.

Adverting to Pankaj Bansal, he said that under Section 19 of the PMLA, there is an obligation to record the reasons for the arrest in writing. Elaborating, he submitted that there is no requirement in the UAPA for recording the 'reasons to believe' in writing and communicating to an external agency like an adjudicating authority.

To support this, he also argued that given the nature of offenses under the UAPA, recording the reasons in writing and communicating the same to the arrestee in writing may be onerous in some circumstances, considering the ground reality. 

"Pankaj Bansal was peculiar to the statutory scheme of the PMLA and cannot apply universally to all laws under UAPA or other laws that have their own provisions.," Hossain added.  

Countering these submissions, Sibal, at the end of the proceedings, said that though the Delhi Police has argued that there is a distinction between UAPA and PMLA, it has been agreed that the ground of arrest is with them. Taking a cue from this, he posed: "What is the point of saying that I have the grounds at the time of arrest, but I will not show them to you?"

"Whether is PMLA or UAPA, once you have the grounds of arrest, that information is with you, you say I will withhold it in UAPA. Why would you want to withhold it? What is the intent of withholding it? What is the constitutional reason for not informing you? What does information mean? Information means information so I can understand on what grounds I am being arrested. How will I understand if you will convey this to me orally? The whole premise of the argument is wrong," Sibal said.  

Sibal concluded his arguments by averring that one cannot make an artificial distinction qua constitutional provisions, saying that even though the grounds of arrest are there, the same will not be informed to the accused. Sibal made a compelling submission that the deprivation of an individual's freedom cannot be left to the discretionary power of authorities. That discretion has to be based on some reason, and that reason is where information is sensitive., Sibal stated. 

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

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