Full Judgment Text
$~J-
* IN THE HIGH COURT OF DELHI AT NEW DELHI
th
Date of Decision: 4 February, 2025
+ CRL.M.C. 4391/2024 & CRL.M.A. 19329/2024
MARFING TAMANG @ MAAINA TAMANG .....Petitioner
Through: Mr. Adit S. Pujari and Ms. Shaurya
Mittal, Advocates.
versus
STATE (NCT OF DELHI) .....Respondent
Through: Mr. Utkarsh, APP for the State.
SI Virender and SI Devi Prasad, P.S.:
Kamla Market.
HON’BLE MR. JUSTICE ANUP JAIRAM BHAMBHANI
J U D G M E N T
ANUP JAIRAM BHAMBHANI J.
This case concerns an analysis of the precise definition of the
word “ forthwith ” as used in section 50 of the Code of Criminal
Procedure Code, 1973 (’Cr.P.C.‟) and the scope of the legal
obligation it imposes on the State to supply the „grounds of arrest‟ to
an arrestee.
2. By way of the present petition filed under section 482 Cr.P.C., the
petitioner impugns order dated 18.05.2024 passed by the learned
Metropolitan Magistrate, Tis Hazari District Courts, Delhi whereby
the learned Magistrate remanded the petitioner to police custody for
02 days in case FIR No. 157/2024 dated 17.05.2024 registered under
sections 342/344/365/368/370/370(A)/372/373/376/120B/34 of the
Indian Penal Code, 1860 („IPC‟) and sections 3/4/5/6 of the Immoral
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Traffic (Prevention) Act 1956 („ITP Act‟) at P.S.: Kamla Market,
Delhi.
F ACTUAL B ACKGROUND
3. Briefly, the allegation against the petitioner is that he was the
„Manager‟ of an establishment which was inter alia engaged in the
sexual abuse and exploitation of victims and was living-of the gains
of such activity, based on which allegation the subject FIR came to be
registered against the petitioner.
4. Subsequently, the Investigating Officer („I.O.‟) moved an application
seeking the petitioner‟s custody; and vide order dated 18.05.2024
passed by the learned Magistrate, the petitioner was remanded to
police custody for 02 days. The petitioner was thereafter remanded to
judicial custody for 14 days vide order dated 20.05.2024 passed by the
learned Magistrate.
5. Pursuant to notice being issued on the present petition on 28.05.2024,
the State has filed Status Report dated 08.06.2024 in the matter.
P ETITIONER ’ S S UBMISSIONS
6. Mr. Adit S. Pujari, learned counsel appearing on behalf of the
petitioner, has premised his challenge to the impugned order on the
following 03 principal grounds :
6.1 Firstly , it is contended that admittedly the grounds of arrest
were never communicated to the petitioner until after the filing
of the remand application by the I.O. before the learned
Magistrate; and that therefore, the petitioner‟s arrest and
remand were both illegal in light of the rulings of Co-ordinate
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Benches of this court in Pranav Kuckreja vs. State (NCT of
1
Delhi) and Kshitij Ghildiyal vs. Director General of GST
2
Intelligence, Delhi ;
6.2 Secondly , it is submitted that in any case the petitioner was not
produced before the learned Magistrate within 24 hours of his
arrest, and the petitioner must be taken to have been arrested at
11:30 a.m. on 17.05.2024 when he was detained at P.S.: Kamla
Market, Delhi by the I.O.; and
6.3 Lastly , it is argued that the grounds of arrest mentioned in the
remand application filed by the I.O. before the learned
Magistrate are completely different from the grounds of arrest
purportedly served on the petitioner during the course of the
remand hearing; and this distinction vitiates the requirement of
serving the grounds of arrest on the arrestee.
7. Elaborating on the aforesaid grounds, Mr. Pujari has drawn the
attention of this court to the decision of a Co-ordinate Bench in
Pranav Kuckreja (supra), to argue that the Co-ordinate Bench has
held that the word “ forthwith ” appearing in section 50 Cr.P.C. implies
that the grounds of arrest have to be communicated to an arrestee at
the time of his arrest (and not later) .
8. It is further argued that the decision of the Supreme Court in Ram
3
Kishor Arora vs. Directorate of Enforcement was rendered in the
1
2024 SCC OnLine Del 9549
2
2024 SCC OnLine Del 8949
3
(2024) 7 SCC 599
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context of section 19 of the Prevention of Money-Laundering Act,
2002 („PMLA‟), and it is arising from the text of section 19 of the
PMLA that the Supreme Court has held that the said provision
requires that the grounds for arrest have to be supplied “ as soon as
may be ”; however the phrasing of section 50 Cr.P.C. requires that the
grounds of arrest be communicated to an arrestee “ forthwith ”. It is
accordingly argued that Ram Kishor Arora (supra) has no application
to an arrest made under section 50 Cr.P.C.; and it is the decisions of
the Co-ordinate Benches of this court in Pranav Kuckreja (supra) and
Kshitij Ghildiyal (supra) which address the issue, which judgments
proceed on the law laid down by the Supreme Court in Prabir
4
Purkayastha vs. State (NCT of Delhi) .
9. In support of his submissions, Mr. Pujari has drawn attention to the
following paras of Pranav Kuckreja (supra) :
“ 9. The short question involved in the present case is
whether the grounds for the petitioner‘s arrest were duly
communicated in compliance with Section 50 of the Cr.P.C. and the
Supreme Court‘s judgment in Pravir Purkayastha (supra).
*
“ 12. Section 50 of the Cr.P.C. provides as under;
―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
5
other grounds for such arrest.
4
(2024) 8 SCC 254
5
Underscoring in extraction
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(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.‖
“ 13. The bare perusal of it makes it clear that the law
mandates the police officer to inform the arrested individual of the
full particulars of the offence or the grounds for arrest. The
requirement to convey these details is not a mere formality but a
fundamental safeguard to uphold the individual's right to liberty
under the Constitution of India. The Courts have time and again
deprecated the practice of filling up columns in proforma indicating
the formal ―reasons‖ for which the accused was being arrested. It is
also pertinent to note that Section 50 Cr.P.C. uses the word
―forthwith.‖ which implies that ―grounds for such arrest‖ have to
be communicated at the time of the arrest. This requirement is
designed to ensure that the arrested individual is promptly made
aware of the reasons for their detention, thereby safeguarding their
legal rights.
“ 14. There are numerous instances where arrested persons
alleged serious violation of procedures enshrined in the Cr.P.C.
(new BNSS, 2023) and the Courts have to carefully examine the
same. It is relevant to note that the constitutional safeguards are
incorporated in the procedural law as procedural safeguards and
the Court have to be very careful and must keep in mind the
constitutional frame work. It is pertinent to note that in the criminal
trial, an individual is pitted against the might of the State and thus
the Court have to interpret such provisions in the perspective of
personal liberty enshrined in part-III of the Constitution.
*
“ 20. It is a settled proposition that the absence of specific
grounds of arrest violates statutory and constitutional rights under
Section 50 of Cr.P.C. and Article 22(1) of the Constitution. Any
person has a fundamental and a statutory right to be informed about
the grounds of arrest in writing and a copy of such written grounds
of arrest have to be furnished to the arrested person as a matter of
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course and without exception at the earliest. The purpose of
informing to the arrested person the grounds of arrest is salutary
and sacrosanct inasmuch as this information would be the only
effective means for the arrested person to consult his advocate;
oppose the police custody remand and to seek bail. Reliance may be
placed upon Pankaj Bansal v. Union of India (2023 SCC OnLine
1244)
*
“ 24. It is no longer res integra that grounds of arrest must be
communicated in writing to the arrested individual expeditiously.
Providing the grounds of arrest to the person being arrested is of
utmost sanctity and significance. This information serves as the
fundamental basis for the arrested individual to seek legal advice,
challenge the remand, and apply for bail.
“ 25. In the context of present case, it is pertinent to mention
that Section 50 Cr. P.C. uses the word ―forthwith‖. The dictionary
meaning of the word ―forthwith‖ as defined in the Shorter Oxford
English dictionary on historical principles, fifth edition, volume - 01
A-M is (1) Along with, at the same time; and (2) Immediately, at
one, without delay.
“ 26. The term ‗forthwith‘ in legal parlance also generally
implies an action that must be taken without unreasonable delay. It
suggests promptness and urgency. The expression ‗forthwith‘ has
also been defined in Black ’ s Law Dictionary, 10th Edition as
―forthwith, adv. (14c) 1. Immediately; without delay. 2. Directly;
promptly; within a reasonable time under the circumstances; with
all convenient dispatch‖. This implies that the ―grounds for such
arrest‖ have to be communicated at the earliest. Reading this
otherwise may not justify the requirement of Section 50 Cr.P.C.
“ 27. The Courts, while examining the implementation of
procedural safeguards emanating out of the constitutional rights,
have to give strict interpretation. Thus, there is no doubt in the mind
of this Court that the ―grounds of arrest‖ in compliance of Section
50 Cr.P.C. has to be supplied ―forthwith‖ as discussed above.
*
“ 30. The Court considers that the arrest of the present
petitioner in case FIR No.4/2023 dated 12.01.2023 registered under
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Sections 498A/406/328/376/109/34 IPC at PS Tuglak Road is illegal
and is required to be set aside. Let the petitioner be released
forthwith if not required in any other case on furnishing a bail bond
of Rs.50,000/- with two sureties of the like amount subject to the
conditions to be imposed by the learned Trial Court. ”
10. Furthermore, it has been argued that the petitioner‟s arrest and remand
in the present case is also in the teeth of the view taken by another
Co-ordinate Bench in Kshitij Ghildiyal (supra) which was a case
under the Central Goods and Services Tax Act, 2017 („CGST Act‟),
and in which the court has held that furnishing the grounds of arrest to
an arrestee at the time of filing of the remand application is only
subsequent to the arrest and is therefore not sufficient compliance of
the requirements of section 50 Cr.P.C. In this behalf, attention of the
court has been drawn to the following extracts of Kshitij Ghildiyal
(supra) :
“ 33. It is evident from the principles as enunciated by the
Supreme Court that the requirement to communicate the grounds of
arrest in writing is sacrosanct. It was further stated that a copy of
such written grounds was to be furnished to the arrestee as a matter
of course, without exception, and at the earliest.
*
“ 35. Applying these to the facts of the case, it is quite clear,
as noted above, that grounds of arrest were not available in writing,
were not furnished at the time of arrest to the arrestee, nor at the
stage of furnishing the remand application.
“ 36. The argument offered by respondent agency, that
remand application itself subsumed the grounds of arrest, is only a
post-facto interpretation/explanation, and in the opinion of the
Court, is unmerited.
*
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“ 38. Despite such categorical enunciations by the Supreme
Court, there is no explanation offered by the respondent agency as
to why they chose to omit compliance of this essential requirement.
6
To contend that arrestee had been ―effectively‖ informed about the
grounds of arrest, which would be enough for the arrestee to
formulate their arguments during the remand, is a specious
argument.
*
“ 40. A constitutional mandate must be understood and
implemented in its right and rational perspective, and not cursorily
and casually. Even if assuming, in favour of the prosecution, that
the narrative in the remand application amounted to grounds of
7
arrest , furnishing the said application just before the remand
hearing would effectively negate and nullify the duty to inform
8
meaningfully and at the earliest. ”
11. In this legal backdrop, it is the petitioner‟s argument that a perusal of
the arrest memo would show that the arrest memo is completely silent
about, and contains no reference to, the grounds of arrest. This
submission is borne-out on a perusal of the arrest memo, which has
been shown to the court from the police file.
12. It is further the argument of the petitioner, that a reading of Status
Report dated 08.06.2024 would show that the petitioner, alongwith
other co-accused persons, was called to the police station where he
9
reached at around 11:30 a.m. on 17.05.2024, but he was produced
before the learned Magistrate only at around 4:00 p.m. on 18.05.2024
as recorded in the impugned order.
6
Word „ effectively ‟ italicised in original
7
Words „ grounds of arrest ‟ italicised in original
8
Word „meaningfully‟ italicised in original
9
Para 3 of Status Report dated 08.06.2024
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13. Furthermore Mr. Pujari points-out, that the observations of the learned
Magistrate in remand order dated 18.05.2024 are also relevant in the
above respect, which order reads as follows:
“ IO moved an application seeking PC remand of accused for
two days. Case diaries perused.
It is submitted by the IO that the accused has been arrested
in this case. IO further submits that arrest of the accused was
necessary for proper investigation of this case. It is further
submitted by the IO that information regarding arrest of accused
has been given to his wife. IO submits that co-accused is yet to be
arrested from Nepal and Dehradun, hence, PC remand of the
accused is necessary.
Upon enquiry, IO has submitted that he had orally
communicated the grounds of arrest to the accused at the time of
his arrest . Grounds of arrest of the accused communicated to the
accused in writing through his legal counsel by the IO at 4.40 pm.
The acknowledgment has been taken on the grounds of arrest
supplied to the accused.
Ld. Counsel for accused submits that he has objection to PC
remand of the accused stating that accused was illegally arrested
and was not communicated the written grounds of his arrest in time.
Ld. Counsel has placed reliance on the judgement of Hon'ble
Supreme Court titled Prabir Purkayastha Vs. State NCT Delhi D
No. 42896 of 2023 wherein it was held by the Hon'ble Supreme
Court, the grounds of arrest must be supplied in writing so that he
can ensure his legal representation and object the remand.
Arrest memo perused. Reasons of arrest have been duly
mentioned. Accused has been arrested at 6.30 pm on 17.05.2024.
MLC perused. No fresh external injury is seen.
Record perused.
Heard. Case diary perused.
In the judgment of Prabir Purkayastha Vs. State NCT Delhi,
the case of the accused was that the remand order was passed at
6.30 am and the order was communicated to his counsel at 7.07 am,
hence, the order was passed without supplying the copy of grounds
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of arrest to the accused or his Advocate. Hon'ble Supreme Court
has also cited the judgment titled as Pankaj Bansal Vs. Union of
India and Others, 2023 SCC Online 1244, according to which the
mode of conveying information of grounds of arrest must be
meaningful. The purpose behind the same is to apprise the arrested
person as to why he was arrested so as to enable the person to seek
a legal counsel who can present his case before the court and
oppose his remand. In the present case, the IO had orally informed
the grounds of arrest at the time of his arrest. The accused had
adequately ensured his legal representation since his counsel had
opposed his remand by filing of appropriate application.
Moreover, the written grounds of arrest were also
communicated to the accused and his counsel at 4.40 pm i.e., within
24 hours of arrest. This remand order is being passed at 5.30 pm,
after giving adequate opportunity to the counsel for accused to
present his case. The allegations against the accused are serious in
nature. He has been accused u/s 342/344/368/370/370A/372/373/
376/120B/34 IPC and 3/4/5/6 ITP Act. As per the disclosure
statement and grounds of PC cited by the IO, it is necessary to
remand the accused for two days so that co-accused persons Maya
and Meena can be arrested from Nepal and Dehradun respectively.
In order to ensure fair investigation and for arresting of co-
accused persons, sufficiency of grounds is being made out for
granting PC remand of accused for two days. Accordingly, accused
is remanded to two days PC. Medical examination be done as per
rules, to be conducted after every 24 hours. All the guidelines of
Hon'ble Apex Court and Hon'ble High Court of Delhi be complied
with.
Accused be produced on 20.05.2024.
Copy of FIR be provided to the accused.
Copy of the order be given dasti to the IO as well as counsel
for accused. ”
(emphasis supplied)
14. It is submitted however, that what is recorded in the impugned order,
namely that the petitioner was arrested at 06:30 p.m. on 17.05.2024 is
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clearly incorrect and contrary to what the I.O. has admitted in the
status report filed in the matter, where the I.O. expressly says that on
the instructions of the police officials, the petitioner had reached the
police station at about 11:30 a.m. on 17.05.2024 .
15. Upon being queried as to how the fact that the petitioner had reached
the police station at around 11:30 a.m. on 17.05.2024 amounts to the
petitioner having been put under arrest at that time , Mr. Pujari
argues, that a perusal of the status report would further show that once
the petitioner reached the police station, alongwith 03 co-accused
persons at about 11:30 a.m., he was not allowed to leave the police
station; and the petitioner therefore stood deprived of his liberty from
the time he reached the police station at around 11:30 a.m. on
17.05.2024.
16. Mr. Pujari has clarified, that as a matter of fact, regardless of what has
come to be stated in para 3 of the status report, the petitioner
alongwith the co-accused persons were escorted to the police station
and not merely “ asked to come to the Police Station ”.
17. Furthermore, Mr. Pujari has also argued that a perusal of the remand
application dated 17.05.2024 filed by the I.O., which claims to set-out
the grounds of arrest, would show that the grounds of arrest
purportedly contained in that application are different from the
grounds purported to have been served upon the petitioner during the
course of the hearing on the remand application on 18.05.2024. A
copy of the grounds of arrest served upon the petitioner during the
remand application hearing has been appended to the petition.
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Learned counsel submits, that such discrepancy vitiates the sanctity of
the grounds of arrest.
18. Mr. Pujari also submits, that the grounds of arrest mentioned in the
remand application do not specify the exact offences alleged against
the petitioner, which is also a requirement of section 50 Cr.P.C.
19. In the circumstances, it is argued that the petitioner‟s arrest and
remand are both illegal; and the petitioner deserves to be released
from custody forthwith .
S TATE ’ S S UBMISSIONS
20. Arguing on behalf of the State, Mr. Utkarsh, learned APP appearing
on behalf of the State has sought to draw a distinction between the
terms detention and arrest , submitting that „ detention ‟ of a person is
not the same as „ arrest ‟ since arrest means formally taking a person
into custody. Learned APP submits, that in the present case, once the
petitioner reached the police station at around 11:30 a.m. on
17.05.2024, he was questioned and remained within the police station
in the sense of being bound-down or detained but he was not arrested
till 6:30 p.m.
21. Learned APP submits, that the petitioner was arrested once the I.O.
was satisfied that there was sufficient material on record to arrest him
i.e. , after the statement of the victim was recorded under section 164
Cr.P.C. and the victim had identified the petitioner as the „Manager‟
of the establishment which was engaging in activities punishable inter
alia under the ITP Act. Accordingly, Mr. Utkarsh has argued, that it
was subsequent to the petitioner being identified by the victim that the
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petitioner was arrested; Arrest Memo dated 17.05.2024 was drawn-
up, which clearly recorded the date and time of arrest as 17.05.2024 at
06:30 p.m.; and thereafter, in compliance of the provisions of section
57 Cr.P.C., the petitioner was produced before the learned Magistrate
within 24 hours of his arrest. Thereafter, the learned Magistrate
considered the I.O.‟s remand application and passed the impugned
order at 05:30 p.m. on 18.05.2024.
22. Furthermore, to rebut the contention that the petitioner was not served
with the grounds of arrest „ forthwith ‟ as required under section 50
Cr.P.C., it is argued on behalf of the State, that the grounds of arrest
were duly served upon the petitioner at 04:40 p.m. on 18.05.2024
through his counsel , in witness whereof counsel signed the document
containing the grounds of arrest, on which counsel also noted the time
and date on which he received the grounds of arrest against his
signature, viz. 04:40 p.m. on 18.05.2024. Learned APP submits, that
this position has also been admitted by the petitioner in ground (F) of
the present petition.
23. Responding to the argument that the word „ forthwith ‟ appearing in
section 50 Cr.P.C. has been interpreted by a Co-ordinate Bench of this
court in Pranav Kuckreja (supra) to mean “ immediately, at one,
without delay ”; and that in legal parlance, this must be taken to mean
without unreasonable delay, learned APP seeks to distinguish the
judgment in Pranav Kuckreja (supra) by pointing-out that in the said
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case the grounds of arrest were never communicated to the arrestee,
10
neither before nor alongwith the remand application.
24. Learned APP argues that the decision of the Supreme Court in Ram
Kishor Arora (supra) applies to the present case, inasmuch as that
judgment is premised on the fundamental right of a detainee or
arrestee as embedded in Article 22(1) of the Constitution of India; and
it is in that context that in Ram Kishor Arora (supra) the Supreme
Court has interpreted the phrase “ as soon as may be ” appearing in
section 19 PMLA to mean “ as early as possible without avoidable
delay ” or “ within reasonably convenient ” or ―reasonably requisite ”
period of time. It is pointed-out that in Ram Kishor Arora (supra) the
Supreme Court has further elaborated that since a person is to be
produced before the court within 24 hours of his arrest, the reasonably
convenient or reasonably requisite time to inform the arrestee of the
grounds of arrest would be within 24 hours of arrest .
25. Furthermore, Mr. Utkarsh has sought to refute the contention raised
on behalf of the petitioner as regards the discrepancy in the grounds
of arrest supplied to the petitioner and those mentioned in the remand
application, by submitting that there is no legal obligation that the
grounds of arrest must be specifically set-out in a remand application.
It is submitted that the law permits that the grounds of arrest maybe
detailed in a remand application which is served upon an accused;
however, there is no mandatory requirement that every remand
application must contain the grounds of arrest. It is accordingly
10
Para 28 of Pranav Kuckreja (supra)
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submitted that the discrepancy referred to by the petitioner is
irrelevant.
P ETITIONER ’ S S UBMISSION IN R EJOINDER
26. Rebutting Mr. Utkarsh‟s contentions, Mr. Pujari points-out that even
though the petitioner in Pranav Kuckreja (supra) was never served
with the grounds of arrest at all, in that judgment, the Co-ordinate
Bench has categorically expressed its view as to the requirement of
furnishing grounds of arrest „ forthwith ‟ to an arrestee under section 50
Cr.P.C. In this regard, Mr. Pujari has drawn attention to paras 26 and
27 of Pranav Kuckreja (supra) extracted above.
27. In support of the petitioner’s case, Mr. Pujari has also cited a
judgment of a Co-ordinate Bench of the Bombay High Court in
Ashak Hussain Allah Detha vs. Assistant Collector of Customs (P)
11
Bombay , to submit that the distinction being sought to be drawn by
the State between „ detention ‟ and „ arrest ‟ of the petitioner is purely
facetious. To buttress his submission, learned counsel has relied on
the following paragraph of the said judgment of the Bombay High
Court :
“ 9. Admittedly, the applicants were detained without any
authority, from the midnight of 20th July 1989 to 5.20 p.m. of 21st
July 1989 — for 17 hours. Their arrest has been so recorded that
their production before the Magistrate falls within 24 hours
stipulated by Article 22(2) of the Constitution of India and section
57 of the Code of Criminal Procedure. The prosecution urges that
after the ―arrest‖ they were not detained beyond 24 hours. This
submission is a distortion of the true meaning of the constitutional
11
1990 SCC OnLine Bom 3
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guarantee against detention without the sanction of judicial
tribunal. They (sic) word ―arrest‖, has not been defined in the Code
of Criminal Procedure or in any other law. The true meaning needs
to be understood. The word ―arrest‖ is a term – of art. It starts with
the arrester taking a person into his custody by action or words
restraining him from moving anywhere beyond the arrester's control
and it continues until the person so restrained is either released
from custody or, having been brought before a Magistrate, is
remanded in custody by the Magistrate is judicial Act. (sic)…… In
substance, ―arrest‖ is the restraint on a man's personal liberty by
the power or colour of lawful authority. [The Law Lexicon—P.
Ramanath Aiyar Reprint Edition 1987, page 85.] In its natural sense
also ―arrest‖ means the restraint on or deprivation of one's
personal liberty. [The Law Lexicon—T.P. Mukherjee (1989) page
177-178.] ”
(emphasis supplied)
28. Mr. Pujari points-out that the question whether a person must be taken
to have been „arrested‟ from the moment his liberty is curtailed,
whether or not he is formally under arrest, is also pending
consideration before the Supreme Court in Directorate of
12
Enforcement vs. Pranav Gupta and Anr.
NALYSIS ONCLUSIONS
A & C
29. The requirement of serving upon an arrestee the „ grounds of arrest ‟
(or grounds for arrest as it is alternatively phrased) as distinct from
citing the „ reasons for arrest ‟ for seeking remand has gained much
significance in light of the recent decisions of the Supreme Court. In
its verdict in Prabir Purkayastha (supra), the Supreme Court has
12
Order dated 18.03.2024 passed in SLP (Crl.) Nos. 3214-3215/2024
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drawn a clear distinction between the „grounds of arrest‟ and „reasons
for arrest‟, observing as follows:
“ 48. It may be reiterated at the cost of repetition that there
is a significant difference in the phrase “reasons for arrest” and
“grounds of arrest” . The ―reasons for arrest‖ as indicated in the
arrest memo are purely formal parameters viz. to prevent the
accused person from committing any further offence; for proper
investigation of the offence; to prevent the accused person from
causing the evidence of the offence to disappear or tampering with
such evidence in any manner; to prevent the arrested person for
making inducement, threat or promise to any person acquainted
with the facts of the case so as to dissuade him from disclosing such
facts to the court or to the investigating officer. These reasons
would commonly apply to any person arrested on charge of a crime
whereas the “grounds of arrest” would be required to contain all
such details in hand of the investigating officer which necessitated
the arrest of the accused . Simultaneously, the grounds of arrest
informed in writing must convey to the arrested accused all basic
facts on which he was being arrested so as to provide him an
opportunity of defending himself against custodial remand and to
seek bail. Thus, the “grounds of arrest” would invariably be
personal to the accused and cannot be equated with the “reasons
of arrest” which are general in nature . ”
(emphasis supplied)
30. An I.O. can therefore no longer treat the matter of serving the grounds
of arrest upon an arrestee with any levity. It is in this context that this
court has carefully analysed the submissions made on behalf of the
petitioner and the State in the present case; and the following position
has emerged from the analysis :
30.1 The phrase “grounds for such arrest” appears both in section 50
Cr.P.C. as well as in section 19 of the PMLA. However, there
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is a significant difference between the words that precede the
phrase “grounds for such arrest” in the said two provisions.
30.2 In section 50 Cr.P.C., the phrase grounds for such arrest is
preceded by the word “ forthwith ” . The relevant portion of
section 50 Cr.P.C. reads as follows :
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 .
(emphasis supplied)
30.3 On the other hand, section 19 PMLA qualifies the requirement
of informing an accused of the grounds for such arrest with the
phrase “ as soon as may be ” . The relevant portion of section 19
PMLA has been extracted below:
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 .
(emphasis supplied)
30.4 In its decision in Ram Kishor Arora (supra), the Supreme Court
has dealt with phraseology of section 19 PMLA, and in that
context, it has been held as under:
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“ 19. In view of the above, the interpretation of the
expression ―as soon as may be‖ assumes significance. In
our opinion, the interpretation of the said expression should
not detain us more in view of the Constitution Bench
judgment in Abdul Jabar Butt v. State of J&K [Abdul Jabar
Butt v. State of J&K, 1956 SCC OnLine SC 6 : AIR 1957 SC
281]. In the said case, the Constitution Bench while
interpreting Section 8 of the Jammu & Kashmir Preventive
Detention Act, 2011, had an occasion to interpret the
expression ―as soon as may be‖ and it observed thus : (SCC
OnLine SC para 6)
―6. Sub-section (1) imposes on the
Government two duties, namely, (i) the duty of
communicating to the detenue the grounds on which
the order has been made, and (ii) the duty of
affording him the earliest opportunity of making
representation against the order to the Government.
The first duty is to be performed ―as soon as may
be‖. Quite clearly the period of time predicated by
the phrase ―as soon as may be‖ begins to run from
the time the detention in pursuance of the detention
order begins. The question is — what is the span of
time, which is designated by the words ―as soon as
may be‖? The observations of Dysant, J. in King's
Old Country Ltd. v. Liquid Carbonic Can. Corpn.
Ltd. [King's Old Country Ltd. v. Liquid Carbonic
Can. Corpn. Ltd., (1942) 2 WWR 603] , WWR at p.
606 quoted in Stroud's Judicial Dictionary, 3rd Edn.,
Vol. 1, p. 200 are apposite. Said the learned Judge,
‗to do a thing ―as soon as possible‖ means to do it
within a reasonable time, with an understanding to
do it within the shortest possible time‘. Likewise to
communicate the grounds “ as soon as may be‖ may
well be said to mean to do so within a reasonable
time with an understanding to do it within the
shortest possible time. What, however, is to be
regarded as a reasonable time or the shortest
possible time? The words ―as soon as may be‖ came
for consideration before this Court in Ujagar Singh
v. State of Punjab [Ujagar Singh v. State of Punjab,
1951 SCC 170 : 1952 SCR 756] . At SCC p. 175,
para 9 this Court observed that the expression meant
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with a ―reasonable dispatch‖ and then went on to
say that ‗what was reasonable must depend on the
facts of each case and no arbitrary time-limit could
be set down‘. In Keshav Nilkanth Joglekar v. State of
Bombay [Keshav Nilkanth Joglekar v. State of
Bombay, 1956 SCC OnLine SC 49 : AIR 1957 SC 28]
the word “ forthwith‖ occurring in Section 3(3) of the
Preventive Detention Act (4 of 1950) came up for
consideration. After observing that the word
“forthwith” occurring in Section 3(3) of that Act
did not mean the same thing as “as soon as may be”
used in Section 7 of the same Act and that the
former was more peremptory than the latter , this
Court observed that the time that was allowed to the
authority to communicate the grounds to the detenu
and was predicated by the expression ―as soon as
may be‖ was what was ―reasonably convenient‖ or
―reasonably requisite‖ .”
*
“ 21. In view of the above, the expression ―as soon as
may be‖ contained in Section 19 PMLA is required to be
construed as — ―as early as possible without avoidable
delay‖ or ―within reasonably convenient‖ or ―reasonably
requisite‖ period of time. Since by way of safeguard a duty
is cast upon the officer concerned to forward a copy of the
order along with the material in his possession to the
adjudicating authority immediately after the arrest of the
person, and to take the person arrested to the court
concerned within 24 hours of the arrest, in our opinion, the
reasonably convenient or reasonably requisite time to
inform the arrestee about the grounds of his arrest would
be twenty-four hours of the arrest .
“ 22. In Vijay Madanlal Choudhary [Vijay Madanlal
Choudhary v. Union of India, (2023) 12 SCC 1 : 2022 SCC
OnLine SC 929], it has been categorically held that so long
as the person has been informed about the grounds of his
arrest, that is sufficient compliance with mandate of Article
22(1) of the Constitution. It is also observed that the arrested
person before being produced before the Special Court
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within twenty-four hours or for that purposes of remand on
each occasion, the Court is free to look into the relevant
records made available by the authority about the
involvement of the arrested person in the offence of money-
laundering. Therefore, in our opinion the person arrested, if
he is informed or made aware orally about the grounds of
arrest at the time of his arrest and is furnished a written
communication about the grounds of arrest as soon as may
be i.e. as early as possible and within reasonably
convenient and requisite time of twenty-four hours of his
arrest, that would be sufficient compliance of not only
Section 19 PMLA but also of Article 22(1) of the
Constitution of India . ”
(emphasis supplied)
30.5 While interpreting the phrase “ as soon as may be ” appearing in
section 19 of the PMLA therefore, the Supreme Court has held
that since an arrestee is to be produced before the Magistrate
within 24 hours of his arrest, the reasonably convenient or
reasonably requisite time to inform the arrestee about the
grounds of his arrest would be twenty-four hours of the arrest .
It is important to note however, that in Ram Kishor Arora
(supra) there is no reference whatsoever to the provisions of
section 50 Cr.P.C .
30.6 On the other hand however, a Co-ordinate Bench of this court
has discussed the significance and meaning of the word
“ forthwith ” appearing in section 50 of the Cr.P.C. with
reference to serving the grounds of arrest (or grounds for
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13
arrest) upon an arrestee. The Co-ordinate Bench has opined,
that in the light of the constitutional safeguards available
against curtailment of liberty, the word ―forthwith‖ appearing
in section 50 Cr.P.C. must be interpreted strictly, meaning
thereby that the grounds of arrest or the grounds for arrest must
be communicated to an arrestee immediately and without delay .
30.7 If any ambiguity were to remain regarding the interpretation
given by the Co-ordinate Bench in Pranav Kuckereja (supra),
this court would further hold that the word “ forthwith ”
appearing in section 50 Cr.P.C. mandates the Arresting Officer
(„A.O.‟) to serve upon an arrestee the grounds of arrest
simultaneously with the issuance, or as part, of the arrest
memo .
30.8 There is a reason why the above interpretation of the word
“ forthwith ” is the only interpretation that is in consonance with
the constitutional mandate that a person cannot be deprived of
his liberty mechanically or needlessly. And the reason is that
though a person may be detained for enquiry or interrogation, it
is only when an I.O. forms an opinion that there are some
justifiable grounds to arrest a person that he would place the
person under arrest . Once the grounds for requiring a person‟s
arrest have been formulated in the investigating officer‟s mind,
there can possibly be no reason why those grounds cannot be
13
Pranav Kuckereja (supra)
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reduced into writing and communicated to the person
simultaneously at the time of arrest .
30.9 Therefore, in the opinion of this court, any other connotation of
the word “ forthwith ” would not only dilute the plain meaning
of that word but would also erode the fundamental right of a
person not to be deprived of his liberty, without being expressly
and formally informed as to why he was being arrested, so also
to enable him to seek legal recourse against such arrest.
30.10 It must also be observed that in its decision in Pranav
Kuckereja (supra) the Co-ordinate Bench has in fact suggested
that a column be incorporated in the format of an „Arrest
Memo‟ requiring the I.O./A.O. to pen-down the grounds of
arrest then-and-there, which would streamline and ensure that
such grounds are communicated to the arrestee forthwith at the
time of issuing the arrest memo.
31. In light of the above, without addressing the controversy as to
whether the petitioner stood deprived of his liberty once he reached
the police station at 11:30 a.m. on 17.05.2024 , there can be no contest
that the petitioner was formally arrested when the arrest memo was
issued to him i.e. , at 06:30 p.m. on 17.05.2024 . In compliance of
section 50 of the Cr.P.C., as interpreted above, the I.O. was required
to serve the grounds of arrest upon the petitioner simultaneously with
the issuance of the arrest memo. This was admittedly not done.
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32. Accordingly, in the opinion of this court, the arrest of the petitioner is
vitiated for non-compliance with the mandate of section 50 of the
Cr.P.C. and Article 22(1) of the Constitution.
33. Furthermore, a perusal of order dated 18.05.2024, whereby the
learned Magistrate was pleased to grant a 02-day police custody
remand of the petitioner, shows that the learned Magistrate proceeded
on the basis that communication of the grounds of arrest by the I.O. in
writing to the petitioner at 04:40 p.m. on 18.05.2024 (through the
petitioner‟s legal counsel) within 24 hours of his arrest, though after
the remand application had been filed, was sufficient compliance with
the requirements of section 50 Cr.P.C. since the remand order was
passed later at 05:30 p.m., which afforded to the petitioner adequate
time and opportunity to know the grounds for his arrest, to be able to
resist the remand order.
34. This was clearly an erroneous interpretation and application of the
law by the learned Magistrate, since furnishing the grounds of arrest
in writing just about an hour before the remand hearing in the present
case, cannot possibly be due or adequate compliance of the
requirements of section 50 Cr.P.C., which mandates that grounds of
arrest must be communicated to an arrestee forthwith that is to say
simultaneously and immediately upon the arrest of such person.
35. This court is constrained to observe that the via media adopted by the
learned Magistrate, whereby the learned Magistrate directed the I.O.
to serve the grounds of arrest in writing upon the petitioner after the
petitioner had already been produced in court; and then observing that
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since the remand hearing took-place about an hour later, it was
sufficient compliance of the law, reduced the petitioner‟s right under
section 50 Cr.P.C. to a farce.
36. In order to bring abundant clarity in the matter, this court would also
observe that sufficient time must given to an arrestee after the
grounds of arrest have been served upon him in writing, to enable the
arrestee to engage and confer with legal counsel, the test being that
the arrestee must have meaningful opportunity to resist his remand to
police custody or judicial custody.
37. Accordingly, remand order dated 18.05.2024 also stands vitiated and
is set-aside.
38. As a sequitur to the above, the petitioner is directed to be released
from custody, unless required in any other case.
39. However, since the petitioner‟s arrest is being set-aside on the ground
of non-compliance of the mandatory requirements of section 50 of the
Cr.P.C. and Article 22(1) of the Constitution, but the petitioner must
continue to participate in the proceedings arising from the subject FIR
in which chargesheet has been filed, this court deems it appropriate to
direct that the petitioner – Marfing Tamang s/o Karnal @ Karan
Bahadur Tamang – shall be released from judicial custody, subject to
furnishing a personal bond of Rs. 25,000/- (Rs. Twenty-five
Thousand Only) with 02 local sureties in the like amount, to the
satisfaction of the learned trial court.
40. Needless to add, nothing in this judgment is an expression on the
merits of the pending case.
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41. As a result, the present petition is allowed, in the above terms.
42. Pending applications, if any, also stand disposed-of.
43. A copy of this judgment be forwarded to the Jail Superintendent for
information and compliance expeditiously .
ANUP JAIRAM BHAMBHANI, J
FEBRUARY 04, 2025
ds/ak
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