On 15.05.2024, a Division Bench of the Hon'ble Supreme Court of India in Criminal Appeal No. 2577 of 2024 titled Prabir Purkayastha Vs. State (NCT of Delhi) has decided on a substantial question of law relating to the legality of arrest where the grounds of arrest are not communicated to the arrested person in writing, wherein, Mr. Prabir Purkayastha (Appellant) was arrested in connection with an offence punishable under Sections 13, 16, 17, 18, and 22C of the UAPA read with Sections 153A and 120B of the IPC vide an arrest memo which did not contain grounds of his arrest. He was produced before the Court and was remanded to 7 days of police custody, therefore, he challenged his arrest and authorization of police custody before the High Court which was rejected and the said judgment was challenged by him before the Supreme Court.
Arrest and authorization of police custody of Mr. Purkayastha were challenged on the ground that the grounds of arrest were not informed to him either orally or in writing and that such action is in gross violation of the constitutional mandate under Article 22(1) of the Constitution of India and Section 50 of the CrPC. The judgment of the Supreme Court in Pankaj Bansal Vs. UOI reported as 2023 SCC OnLine SC 1244 was relied upon by him to say that the mere passing of successive remand orders would not be sufficient to validate the initial arrest if such arrest was not in conformity with the law. It was further argued that the Supreme Court in Pankaj Bansal relied upon Section 19(1) of PMLA which is pari materia to the provisions contained in Section 43B(1) of the UAPA. Thus, the said judgment fully applies to the instant case.
Ratio in Pankaj Bansal
The Supreme Court held that a copy of written grounds of arrest is furnished to the arrested person as a matter of course and without exception for the following reasons:
Article 22(1) of the Constitution provides that no arrested person shall be detained in custody without being informed of the grounds for such arrest. The mode of conveying information of the grounds of arrest must necessarily be meaningful so as to serve the intended purpose. Section 19 of the PMLA mandates that any person arrested under the Act must be informed of his grounds for arrest. However, neither the Constitution nor PMLA expressly says that the arrested person must be informed of his grounds of arrest in writing.
The Supreme Court outlined the following two reasons for providing a copy of the written grounds of arrest:
Firstly, in the event such grounds of arrest are orally read out to the arrested person or read by such person with nothing further and this fact is disputed in a given case, it may boil down to the word of the arrested person against the word of the authorized officer as to whether or not there is due and proper compliance in this regard.
The second reason as to why this would be the proper course to adopt is the constitutional objective underlying such information being given to the arrested person. Conveyance of this information is not only to apprise the arrested person of why he/she is being arrested but also to enable such person to seek legal counsel and, thereafter, present a case before the Court under Section 45 to seek release on bail, if he/she so chooses.
The Supreme Court held that “to give true meaning and purpose to the constitutional and the statutory mandate of Section 19(1) of the Act of 2002 of informing the arrested person of the grounds of arrest, we hold that it would be necessary, henceforth, that a copy of such written grounds of arrest is furnished to the arrested person as a matter of course and without exception”.
Issues before SC
Whether arrest be vitiated merely because of the fact that grounds of arrest were not communicated to the arrested person in writing?
After analysing the Constitutional provisions relating to the subject, the Supreme Court held that “29. The language used in Article 22(1) and Article 22(5) of the Constitution of India regarding the communication of the grounds is exactly the identical. Neither of the constitutional provisions require that the ‘grounds’ of “arrest” or “detention”, as the case may be, must be communicated in writing. Thus, interpretation to this important facet of the fundamental right as made by the Constitution Bench while examining the scope of Article 22(5) of the Constitution of India would ipso facto apply to Article 22(1) of the Constitution of India insofar the requirement to communicate the grounds of arrest is concerned.
30. 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. Noncompliance of this constitutional requirement and statutory mandate would lead to the custody or the detention being rendered illegal, as the case may be”.
While relying upon the ratio in Pankaj Bansal(Supra), the SC further held that “31. Furthermore, the provisions of Article 22(1) have already been interpreted by this Court in Pankaj Bansal(supra) laying down beyond the pale of doubt that the grounds of arrest must be communicated in writing to the person arrested of an offence at the earliest. Hence, the fervent plea of learned ASG that there was no requirement under law to communicate the grounds of arrest in writing to the accused appellant is noted to be rejected”.
Whether there is any difference between the provisions contained in Section 19 of the PMLA and Section 43A and 43B of the UAPA?
The Supreme Court after making a comparative perusal of Section 19 of the PMLA and Sections 43A and 43B of the UAPA held that “18. 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 contention advanced by learned ASG that there are some variations in the overall provisions contained in Section 19 of the PMLA and Section 43A and 43B of the UAPA would not have any impact on the statutory mandate requiring the arresting officer to inform the grounds of arrest to the person arrested under Section 43B(1) of the UAPA at the earliest because as stated above, the requirement to communicate the grounds of arrest is the same in both the statutes. As a matter of fact, both the provisions find their source in the constitutional safeguard provided under Article 22(1) of the Constitution of India. Hence, applying the golden rules of interpretation, the provisions which lay down a very important constitutional safeguard to a person arrested on charges of committing an offence either under the PMLA or under the UAPA, have to be uniformly construed and applied”.
In the instant case, the Supreme Court held that the arrest and authorization of initial and subsequent police custody of Mr. Purkayastha was invalid since the grounds of arrest were not communicated to him in writing.
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