Issue involved
1. Amongst other issues, the main issue canvassed by the appellant in this appeal is the violation of the appellant’s right under Article 22(1) of the Constitution of India (for short ‘the Constitution’) as the appellant was not informed of the grounds for his arrest.
2. A reference to a few factual aspects would be necessary. The challenge in this appeal is to the judgment and order dated 30th August 2024 passed by the learned Single Judge of Punjab and Haryana High Court. The appellant was arrested in connection with first information report no.121 of 2023 dated 25th March 2023 registered for the offences under Sections 409, 420, 467, 468 and 471 read with Section 120-B of the Indian Penal Code (for short, ‘IPC’). According to the appellant’s case, he was arrested on 10th June 2024 at about 10.30 a.m. at his office premises on the 3rd-5th floor of HUDA City Centre, Gurugram, Haryana. He was taken to DLF Police Station, Section 29, Gurugram. He was allegedly produced before the learned Judicial Magistrate (in charge) at Gurgaon on 11th June 2024 at 3.30 p.m. Therefore, there was a violation of Article 22(2) of the Constitution and Section 57 of the Code of Criminal Procedure Code, 1973 (for short, ‘CrPC’). The allegation is that neither in the remand report nor in the order dated 11th June 2024 passed by the learned Magistrate was the time of arrest mentioned. The FIR was registered at the instance of the 2nd respondent. We may note here that, according to the case of the 1st respondent, the appellant was arrested on 10th June 2024 at 6.00 p.m. Therefore, compliance with the requirement of Article 22(2) was made.
3. There is another very serious factual aspect. The order dated 4th October 2024 passed by this Court records that after the appellant was arrested, he was hospitalised in PGIMS, Rohtak. The learned counsel appearing for the appellant produced photographs which showed that while he was admitted to the hospital, he was handcuffed and chained to the hospital bed. Therefore, a notice was issued on 4th October 2024 to the Medical Superintendent of PGIMS, calling upon him to file an affidavit stating whether the appellant was handcuffed and chained to the hospital bed. The order dated 21st October 2024 records the admission of the Medical Superintendent of PGIMS that when the appellant was admitted to the hospital, he was handcuffed and chained to the bed. On this aspect, we may note that an affidavit was filed on 24th October 2024 by Shri Abhimanyu, HPS, Assistant Commissioner of Police, EOW I and II, Gurugram, Haryana. The affidavit states that the officials who were deployed to escort the appellant to PGIMS have been suspended, and a departmental inquiry was ordered against them by the Deputy Commissioner of Police on 23rd October 2024.
Consideration of submissions
Procedure to be followed for arresting a person without warrant
7. Sub-Section (1) of Section 41 of CrPC lists cases where police may arrest a person without a warrant. The corresponding provision in the Bharatiya Nagarik Suraksha Sanhita, 2023 (for short ‘the BNSS’) is Section 35.
Section 41 Cr.P.C:
Section 41 of CrPC reads thus:
“41. When police may arrest without warrant.—(1) Any police officer may without an order from a Magistrate and without a warrant, arrest any person:
(ba) against whom credible information has been received that he has committed a cognizable offence punishable with imprisonment for a term which may extend to more than seven years whether with or without fine or with death sentence and the police officer has reason to believe on the basis of that information that such person has committed the said offence;
……….. “
8. In this case, a commission of a cognizable offence punishable with imprisonment for a term which may extend to more than seven years has been alleged against the appellant. Hence, clause (ba) of sub-Section (1) of Section 41 [clause (c) of sub-Section (1) of Section 35 of the BNSS] will apply. Therefore, a police officer can arrest a person without an order of a Magistrate or warrant subject to the following conditions:
a) Credible information has been received against the person that he has committed a cognizable offence punishable with imprisonment for more than seven years and
b) The police officer has reason to believe on the basis of the information received that such a person has committed the offence.
Hence, a police officer cannot casually arrest a person against whom the commission of an offence punishable with imprisonment for more than seven years is alleged. He can arrest provided twin conditions in clause (ba) are satisfied. The emphasis is on “credible information”. He cannot arrest a person under clause (ba) unless credible information is received.
9. Article 22 of the Constitution reads thus:
“22. Protection against arrest and detention in certain cases.—(1) No person who is arrested shall be detained in custody without being informed, as soon as may be, of the grounds for such arrest nor shall he be denied the right to consult, and to be defended by, a legal practitioner of his choice.
Clause (1) of Article 22 provides that no person who is arrested shall be detained in custody without being informed, as soon as may be, of the grounds for such arrest.
Section 50 Cr.P.C: Then comes Section 50 of CrPC (Section 47 of the BNSS), which reads thus:
“50. Person arrested to be informed of grounds of arrest and of right to bail.—(1) Every police officer or other person arresting any person without warrant shall forthwith communicate to him full particulars of the offence for which he is arrested or other grounds for such arrest.
(2) Where a police officer arrests without warrant any person other than a person accused of a non-bailable offence, he shall inform the person arrested that he is entitled to be released on bail and that he may arrange for sureties on his behalf.”
Section 19 PMLA: 10. As far as Article 22(1) is concerned, the legal position is well settled. In the case of Pankaj Bansal, this Court dealt with Section 19 of the Prevention of Money Laundering Act, 2002 (for short, ‘the PMLA’). Section 19 reads thus:
“19. Power to arrest.—(1) If the Director, Deputy Director, Assistant Director or any other officer authorised in this behalf by the Central Government by general or special order, has on the basis of material in his possession, reason to believe (the reason for such belief to be recorded in writing) that any person has been guilty of an offence punishable under this Act, he may arrest such person and shall, as soon as may be, inform him of the grounds for such arrest.
(2) The Director, Deputy Director, Assistant Director or any other officer shall, immediately after arrest of such person under sub-section (1), forward a copy of the order along with the material in his possession, referred to in that sub-section, to the Adjudicating Authority, in a sealed envelope, in the manner as may be prescribed and such Adjudicating Authority shall keep such order and material for such period, as may be prescribed.
(3) Every person arrested under sub-section (1) shall, within twenty-four hours, be taken to a [Special Court or] Judicial Magistrate or a Metropolitan Magistrate, as the case may be, having jurisdiction:
Provided that the period of twenty-four hours shall exclude the time necessary for the journey from the place of arrest to the [Special Court or] Magistrate’s Court.” (emphasis added)
Magistrate’s duty while remanding
20. When an arrested person is produced before a Judicial Magistrate for remand, it is the duty of the Magistrate to ascertain whether compliance with Article 22(1) has been made. The reason is that due to non-compliance, the arrest is rendered illegal; therefore, the arrestee cannot be remanded after the arrest is rendered illegal. It is the obligation of all the Courts to uphold the fundamental rights.
Conclusions: Guidelines issued
21. Therefore, we conclude:
a) The requirement of informing a person arrested of grounds of arrest is a mandatory requirement of Article 22(1);
b) The information of the grounds of arrest must be provided to the arrested person in such a manner that sufficient knowledge of the basic facts constituting the grounds is imparted and communicated to the arrested person effectively in the language which he understands. The mode and method of communication must be such that the object of the constitutional safeguard is achieved;
c) When arrested accused alleges non-compliance with the requirements of Article 22(1), the burden will always be on the Investigating Officer/Agency to prove compliance with the requirements of Article 22(1);
d) Non-compliance with Article 22(1) will be a violation of the fundamental rights of the accused guaranteed by the said Article. Moreover, it will amount to a violation of the right to personal liberty guaranteed by Article 21 of the Constitution. Therefore, non-compliance with the requirements of Article 22(1) vitiates the arrest of the accused. Hence, further orders passed by a criminal court of remand are also vitiated. Needless to add that it will not vitiate the investigation, charge sheet and trial. But, at the same time, filing of chargesheet will not validate a breach of constitutional mandate under Article 22(1);
e) When an arrested person is produced before a Judicial Magistrate for remand, it is the duty of the Magistrate to ascertain whether compliance with Article 22(1) and other mandatory safeguards has been made; and
f) When a violation of Article 22(1) is established, it is the duty of the court to forthwith order the release of the accused. That will be a ground to grant bail even if statutory restrictions on the grant of bail exist. The statutory restrictions do not affect the power of the court to grant bail when the violation of Articles 21 and 22 of the Constitution is established.
Information about arrest is completely different from grounds of arrest
26. The stand taken before the High Court was that the appellant’s wife was informed about the arrest. Information about the arrest is completely different from the grounds of arrest. The grounds of arrest are different from the arrest memo. The arrest memo incorporates the name of the arrested person, his permanent address, present address, particulars of FIR and Section applied, place of arrest, date and time of arrest, the name of the officer arresting the accused and name, address and phone number of the person to whom information about arrest has been given. We have perused the arrest memo in the present case. The same contains only the information stated above and not the grounds of arrest. The information about the arrest is completely different from information about the grounds of arrest. Mere information of arrest will not amount to furnishing grounds of arrest.
28. Therefore, in the facts of the case, we have no hesitation in holding that the arrest of the appellant was rendered illegal on account of failure to communicate the grounds of arrest to the appellant as mandated by Article 22(1) of the Constitution.
29. Before we part with this judgment, we must refer to the shocking treatment given to the appellant by the police. He was taken to a hospital while he was handcuffed and he was chained to the hospital bed. This itself is a violation of the fundamental right of the appellant under Article 21 of the Constitution of India. The right to live with dignity is a part of the rights guaranteed under Article 21. We, therefore, propose to direct the State Government to issue necessary directions to ensure that such illegalities are never committed.
32. In view of the above findings, we are not deciding the issue of violation of Article 22(2) of the Constitution.
Conclusion
33. Hence, the appeal is allowed, and we pass the following order:
a) The arrest of the appellant shown on 10th June 2024 in connection with FIR no.121 of 2023 dated 25th March 2023 registered at Police Station DLF, Sector-29, Gurugram stands vitiated;
b) Therefore, the appellant shall be forthwith released and set at liberty;
c) We clarify that the finding of this Court that the arrest of the appellant stands vitiated will not affect the merits of the chargesheet and the pending case;
d) We direct the appellant to regularly and punctually attend the trial court unless his presence is exempted, and cooperate with the trial court for early disposal of the trial. We direct the appellant to furnish a bond in accordance with Section 91 of the BNSS to the satisfaction of the Trial Court within a period of two weeks from his release;
e) The State of Haryana shall issue guidelines/departmental instructions to the police (i) to ensure that the act of handcuffing an accused while he is on a hospital bed and tying him to the hospital bed is not committed again. (ii) to ensure that the constitutional safeguards under Article 22 are strictly followed. If necessary, the State Government shall amend the existing Rules/guidelines; and
f) A copy of the judgment shall be forwarded to the Home Secretary of the State of Haryana.
Concurring judgment
2. The issue on the requirement of communication of grounds of arrest to the person arrested, as mandated under Article 22(1) of the Constitution of India, which has also been incorporated in the Prevention of Money Laundering Act, 2002 under Section 19 thereof has been succinctly reiterated in this judgment. The constitutional mandate of informing the grounds of arrest to the person arrested in writing has been explained in the case of Pankaj Bansal (supra) so as to be meaningful to serve the intended purpose which has been reiterated in Prabir Purkayastha (supra). The said constitutional mandate has been incorporated in the statute under Section 50 of the CrPC (Section 47 of BNSS). It may also be noted that the aforesaid provision of requirement for communicating the grounds of arrest, to be purposeful, is also required to be communicated to the friends, relatives or such other persons of the accused as may be disclosed or nominated by the arrested person for the purpose of giving such information as provided under Section 50A of the CrPC. As may be noted, this is in the addition of the requirement as provided under Section 50(1) of the CrPC.
Purpose of Section 50A Cr.P.C
3. The purpose of inserting Section 50A of the CrPC, making it obligatory on the person making arrest to inform about the arrest to the friends, relatives or persons nominated by the arrested person, is to ensure that they would able to take immediate and prompt actions to secure the release of the arrested person as permissible under the law. The arrested person, because of his detention, may not have immediate and easy access to the legal process for securing his release, which would otherwise be available to the friends, relatives and such nominated persons by way of engaging lawyers, briefing them to secure release of the detained person on bail at the earliest. Therefore, the purpose of communicating the grounds of arrest to the detenue, and in addition to his relatives as mentioned above is not merely a formality but to enable the detained person to know the reasons for his arrest but also to provide the necessary opportunity to him through his relatives, friends or nominated persons to secure his release at the earliest possible opportunity for actualising the fundamental right to liberty and life as guaranteed under Article 21 of the Constitution. Hence, the requirement of communicating the grounds of arrest in writing is not only to the arrested person, but also to the friends, relatives or such other person as may be disclosed or nominated by the arrested person, so as to make the mandate of Article 22(1) of the Constitution meaningful and effective failing which, such arrest may be rendered illegal.
Acts and Sections involved
Constitution of India: Article 21, Article 22(1), Article 22(2), Article 22(5)
Indian Penal Code (IPC): Sections 409, 420, 467, 468, 471, 120-B
Code of Criminal Procedure, 1973 (CrPC): Sections 29, 41, 42, 50, 50A, 57, 91
Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS): Sections 35, 47
Prevention of Money Laundering Act, 2002 (PMLA): Section 19, Section 45
List of Judgments cited/involved
Pankaj Bansal v. Union of India (2024) 7 SCC 576
Prabir Purkayastha v. State (NCT of Delhi) (2024) 8 SCC 254
V. Senthil Balaji v. State (2024) 3 SCC 51 : (2024) 2 SCC (Cri) 1
Harikisan v. State of Maharashtra 1962 SCC OnLine SC 117
Lallubhai Jogibhai Patel v. Union of India (1981) 2 SCC 427
Hadibandhu Das v. District Magistrate (1969) 1 SCR 227 : AIR 1969 SC 43 : 1969 Cri LJ 274
Party
Vihaan Kumar vs. State of Haryana – Criminal Appeal No. of 2025 (arising out of Special Leave Petition (Crl.) No. 13320 of 2024) – 2025 INSC 162 – February 7, 2025 Hon’ble Mr. Justice Abhay S. Oka and Hon’ble Mr. Justice Nongmeikapam Kotiswar Singh.
