Shankesh Prithviraj Sanghvi vs The State Of Maharashtra

P.H. JAYANI 901 WP2823.2026.DOC
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL WRIT PETITION NO. 2823 OF 2026
Shankesh Prithviraj Sanghvi …. Petitioner
V/s.
The State of Maharashtra …Respondent
WITH
INTERIM APPLICATION NO.2126 OF 2026
IN
CRIMINAL WRIT PETITION NO. 2823 OF 2026
XYZ …. Intervenor
In the matter between :-
Shankesh Prithviraj Sanghvi …. Petitioner
V/s.
The State of Maharashtra …Respondent
Mr. Aabad Ponda, Sr. Advocate a/w. Mr. Veerdhawal Deshmukh,
Mr. Mihir Nakrani, Mr. Suresh Jambhale, Adv. Londhe,
Adv. Shubham Shingade and Mr. Vinod Shingade i/b. One Access
for the Petitioner.
Ms. Sangeeta D. Shinde, APP for the Respondent – State.
Mr. Sudeep Pasbola, Sr. Advocate a/w. Mr. Chinmay Gudse and
Ms. Anjali Joshi i/b. Adv. Hrutik R. Chavan for the Intervenor.
Ms. Archana Patil, Police Inspector, Tardeo Police Station,
Mumbai, present.
CORAM: SHYAM C. CHANDAK, J.
th
RESERVED ON : 24 JUNE, 2026
th
PRONOUNCED ON : 30 JUNE, 2026
JUDGMENT :-
. Present Petition filed under Section 528 of the
Bharatiya Nagarik Suraksha Sanhita, 2023 (“BNSS”) and under
Article 227 of the Constitution of India prays for following reliefs :-
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P.H. JAYANI 901 WP2823.2026.DOC
“(a) This Hon’ble Court may be pleased quash and set aside
remand order dated 22.10.2026, 25.05.2026 and subsequent
order dated 28.05.2026 passed by the Ld. Judicial Magistrate
th th
First Class 18 & 40 Court Girgaon Mumbai, in connection with
FIR No.226 of 2026 registered at Tardeo Police Station for
offence punishable u/s. 64, 75, 76, 77, 78, 79, 308, 351(2), 352,
115(2) of Bharatiya Nyaya Sanhita, 2023 and Section 66E of
Information Technology Act, 2000.
(b) That this Hon’ble Court may be pleased to direct and
declare the arrest of the Petitioner is illegal and in gross violation
of Article 21 and 22 of the Constitution of India in relation to FIR
bearing no.226/2026 dated 21.05.2026 registered at Tardeo
Police Station;
(c) That this Hon’ble Court may be pleased direct the
immediate release of the Petitioner from the judicial custody in
FIR bearing no.226/2026 dated 21.05.2026 registered at Tardeo
Police Station on such terms and conditions as this Hon’ble
Court may deem fit and proper in the circumstances of the case.”
2. Petitioner is arraigned in an FIR bearing
C.R.No.226/2026 registered at Tardeo Police Station, Mumbai for
the offence punishable under Sections 64, 75, 76, 77, 78, 79, 308,
351 (2), 352, 115 (2) of Bharatiya Nyaya Sanhita, 2023 and under
Section 66E of Information Technology Act, on the Report dated
21.05.2026 filed by the Intervenor XYZ (“the victim”).
3. Heard Mr. Ponda, learned Senior Counsel for the
Petitioner, Mr. Pasbola, learned Senior Counsel for the victim and
Ms.Shinde, learned APP for the Respondent – State. Perused the
record
3.1 Mrs. Sunita Ruprao Pawar Rajput, Police Inspector,
Tardeo Police Station and the victim filed their separate Affidavit-
in-Reply and oppose the Petition. A photocopy of the Arrest Form
produced by the leaned APP is taken on record.
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4. Rule. Rule made returnable forthwith. With consent,
heard finally.
5. The facts giving rise to this Petition are that the
Petitioner and the victim were acquainted with each-other as the
Petitioner was the cousin brother-in-law of the victim’s husband.
Together, their families used to participate in social programmes,
events and tours. Their family relationships were faithful.
5.1 The victim alleged that in August 2024, their families
th
and others had been to London for a pleasure trip. On 15 August
2024, when the victim was under the influence of alcohol, stealthy,
the Petitioner took her obscene photos. In September 2024, the
Petitioner showed those photos to the victim. On seeing the
photos, she slapped him. However, the Petitioner threatened her
that she should not complain against him, otherwise, he will post
those photos on social media. Further, the Petitioner caused the
victim to share her objectionable videos, he sexually exploited and
repeatedly raped her at different places by threatening her in
similar manner. He created morphed obscene images showing the
victim in obscene situation with another man in an attempt to
humiliate and psychologically pressurise her. The Petitioner used
to contact her through an unidentified Instagram account and
made obscene video calls, during which he allegedly forced her to
appear uncovered on camera. He allegedly used to send obscene
photographs and messages and repeatedly force her to engage in
explicit talk online. The Petitioner also demanded her ransom of
Rs.50 Lakhs to delete her videos. Finally, the victim gathered the
courage and filed the Report on 21.05.2026, at 20.08 hours,
leading to registration of the said crime. Following that, police
arrested the Petitioner on the same night at about 22.29 hours.
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P.H. JAYANI 901 WP2823.2026.DOC
6. On 22.05.2026, at about 03:50 p.m., the Petitioner
was produced before the learned Magistrate alongwith an
Application seeking his Police Custody Remand. Learned Advocate
appearing for the Petitioner orally objected the PCR request on the
premise that the alleged offence for which the Petitioner was
arrested, is punishable with more than 7 years imprisonment. It
was contended that the notice issued to the Petitioner under
Section 35 of BNSS, was not correct. Prior to arrest of the
Petitioner, the Investigating Officer had not issued the notice as
contemplated in Section 47 (1) of BNSS thereby communicating
the Petitioner the grounds of his arrest. In the backdrop, the arrest
of the Petitioner was illegal and hence, he may be released. The
learned APP appeared before the learned Magistrate contested
that plea, asserting that, the Investigating Officer had issued a
proper notice under Section 35 (1) (b) of BNSS. The offence is
serious and therefore, he prayed for the police custody remand.
Having heard the parties, the learned Magistrate passed the
Order, thereby remanding the Petitioner into the police custody
till 25.06.2026.
In this regard, in paragraphs 4 and 5 of the Order, the
learned Magistrate has observed thus :-
“4. I have gone through the record, which shows that
notice under Section 35(1)(b) is placed on record.
However, a notice which is mandatory one under section
47(1) of BNSS in case of an offence punishable more than 7
years. However, in the instant case learned Counsel
appeared before this Court and defended his case by
arguing lengthly before this Court. The main objection of
this provision is to provide legal aid to the accused for
protecting his constitutional rights. In the instant case
learned counsel appeared and arguing before this Court on
merit, thereby fulfilled the main purpose of providing legal
aid to the accused.
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5. However, considering the serious nature of offence,
considering the reasons forthwith, at this state custody is
necessary for further investigation.”
7. On 25.05.2026, when the Petitioner was produced
before the Magistrate, written submissions were filed on his
behalf. Therein, it was submitted as under :-
1. That the initial arrest of the applicant is illegal, and
in violation of the provisions of Article 22 of the
Constitution of India, and the provisions of the Bharatiya
Nagarik Suraksha Sanhita, 2023, as the written grounds for
arrest in writing are not furnished to the applicant as
required as per the law. So no remand be granted.
2. There is a difference between the reasons for the
arrest and the grounds for the arrest. What has been given
are reasons for arrest and not grounds for arrest, as has
been clearly exemplified by the Supreme Court authorities
and the judgements of the Hon’ble Bombay High Court.
3. That the extension of the earlier remand order,
which is sought by the police today, based on the earlier
remand order, which is obtained illegally, is itself illegal in
law. And all the remands are illegal, on this ground alone.
The remand is objected to these submissions are without
any reference to the allegations.
4. These submissions are made in law, without
prejudice to the rights and contentions of the applicant, in
the case on its on facts, which is a case relating to, at best, a
consensual relationship between parties, not amounting to
rape, and in the light of the same, on these grounds, the
remand is also objected.
7.1 After hearing the parties, the learned Magistrate
passed an Order, thereby, rejected the written submissions on
behalf of the Petitioner and remanded him into further police
custody till 28.05.2026. The reasons for this set out in paragraph 2
and 3 of the Order, read :-
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2. Advocate for accused submitted that grounds of
arrest were not given to the accused. Therefore, his arrest is
illegal. He placed reliance on case of Vihaan Kumar Vs.
State of Haryana 2025 (5) SCC 799 and case of Prabir
Purkayastha, order of Hon’ble Apex Court dated
15.05.2024. Ld. APP submitted that this is second remand.
Present objection was raised at the time of first remand
also. It is decided by Presiding Officer on that date. That
order has not been set aside. This Court cannot review that
order. Hence he prayed to reject objection regarding illegal
arrest.
3. I have perused remand order dated 22.05.2026.
Objection regarding Sec. 35 and 47 of BNSS has been
considered in that order. Already that objections are
decided by Presiding Officer. Therefore, this Court cannot
looked into that objections again. That order cannot be
reviewed.
8. On 28.05.2026, when the Petitioner was produced
before the learned Magistrate for seeking his further police
custody, again written objection was raised on behalf of the
Petitioner contending that the arrest and earlier remands to police
custody were illegal and in violation of Article 22 of the
Constitution of India read with Section 47 of BNSS. On this
occasion, the learned Magistrate observed that no satisfactory
reasons were made out to extend the PCR. Hence, remanded the
Petitioner to MCR till 11.06.2026. In this backdrop, present
Petition has been filed.
9. Before adverting to the main controversy involved in
the Petition and the issues arise for my determination, first, let me
deal with the objection raised by Mr. Pasbola, the learned Senior
Counsel, that considering the said prayer clause (b), the present
Petition shall lie before the Division Bench of this Court and not
before the Single Judge. Because, said prayer has been seeking to
direct and declare the arrest of the Petitioner illegal. To endorse
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this, Mr. Pasbola, the learned Senior Counsel has referred to Rule
18 in Chapter XVII of the Bombay High Court Appellate Side
Rules, 1960. However, in my considered view, said objection is not
sustainable in law. And its reason is simple, as said Rule 18 (4)
provides that notwithstanding anything contained in Rules 1, 4
and 17 of this Chapter, a Single Judge of this Court has powers to
finally dispose of applications under Article 226 or 227 arising out
of t he orders and decisions of the Courts constituted under the
Code of Criminal Procedure. Secondly, when aforesaid questions
was orally referred to the Registry of this Court, the Deputy
Registrar, Criminal ‘A’ Department submitted the Office Report,
therein, it is stated that the present Petition falls under said
Chapter – XVII, Rule-18 (4) and hence, this Petition would lie
before the Hon’ble Single Bench taking up Criminal Writ Petition
matters as per the extant assignment.
(emphasis underlined)
10. That apart, in case of Prabir Purkayastha (supra),
after concluding 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
th
before passing of the order of remand dated 4 October, 2023
which vitiated the arrest and subsequent remand of the appellant,
the appellant was held entitled to a direction for release from
custody. Accordingly, the arrest of the appellant followed by
th
remand order dated 4 October, 2023 and so also the impugned
th
order passed by the High Court of Delhi dated 13 October, 2023
were declared to be invalid in the eyes of law and were quashed
and set aside. In the case in hand, the prayer (b) appears to have
been written on the basis of the said conclusion and the
declaration in Prabir Purkayastha (supra). Hence, the objection
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that this Petition in hand shall lie before the Division Bench, is
rejected.
(emphasis underlined)
11. Now let us turn to the central issues arise for
consideration out of the controversy involved in the Petition and
the rival submission which require determination by this Court.
The issues are:- (a) Whether the Petitioner was communicated
with the grounds of arrest when he was apprehended or
immediately thereafter? (b) If not, whether the arrest of the
Petitioner and his remand to police and judicial custody was illegal
on that account?
12. Mr.Ponda, the learned Senior Counsel for the
Petitioner submitted that, as alleged, around the time of
registration of the report filed by the victim, the Petitioner was
called at the police station. However, till production of the
st
Petitioner before the learned Magistrate for the purpose of 1
remand, he was not aware of the text of the FIR or the allegations
made against him therein. Except certain Sections/provisions of
the penal statutes, nothing specific about the alleged act of the
Petitioner was mentioned in the notices thereby communicating
the grounds and reasons of his arrest. In other words, no brief
details of the prosecution story or allegations made against the
Petitioner were stated in the said notices. Such
notices/communications drafted in a mechanical manner, are not
sufficient to hold that, indeed, the Petitioner was furnished the
grounds of arrest before or immediately after his arrest and till his
production before the learned Magistrate for the purpose of
remand. As such, the arrest of the Petitioner is illegal and the
Petition deserves to be allowed, as prayed for.
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13. To support these submissions, Mr. Ponda, the learned
Senior Counsel has relied upon following reported cases :-
Vihaan Kumar V/s. State of Haryana and another (2025) 5 SCC 799
Prabir Purkayastha V/s. State (NCT of Delhi) (2024) 8 SCC 254
Mihir Rajesh Shah V/s (2026) 1 SCC 500
State of Maharashtra and Anr
Chandrashekhar Bhimsen Naik V/s 2025 SCC OnLine Bom
State of Maharashtra and Others 5357
Lalit Shyam Tekchandani V/s. 2024 SCC Online
State of Maharashtra and anr. Bom 3837
Hem Prabhakar Shah V/s. State of Maharashtra 2024 SCC Online
Bom 3660
Rajrishi Bindawat V/s. State of Maharashtra 2024 SCC Online
Bom 3660
Amit Giridhar Lalge V/s. State of Maharashtra 2024 SCC Online
Bom 3963
Manulla M. Kanchwala V/s. State of Maharashtra 2024 SCC Online
Bom 4530
Navneen Siyaram Sharma V/s. 2025 SCC Online
State of Maharashtra and Others Bom 4532
Mahesh Pandurang Naik V/s. 2024 SCC Online
State of Maharashtra Bom 3918
Directorate of Enforcement V/s. Arvind Kejriwal 2024 SCC Online
Del 4421
Pankaj Bansal V/s. Union of India and others (2024) 7 SCC 576
Ahmed Mansoor and Others V/s. State Rep. By 2025 SCC Online
Assistant Commissioner of Police and another SC 2650
Dr. Rajinder Rajan V/s. 2026 SCC Online
Union of India and another SC 802
Gaurav Shahajirao Kakade V/s. Order dated 04/02/2026
State of Maharashtra and anr. in Criminal Writ Petition
No.5933 of 2025
14. The prayers in the Petition alongwith the submissions
raised by Mr. Ponda, the learned Senior Counsel, are stoutly
opposed by Ms. Shinde, the learned APP and Mr. Pasbola, the
learned Senior Counsel. They have submitted that when the
Petitioner was called at the police station immediately after filing
of the report by the victim, at that very juncture he was made
aware of the allegations against him in the report. Considering the
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facts and circumstances of the case, even otherwise the Petitioner
was aware of the accusations levelled against him by the victim.
The record clearly indicates that the reasons and the grounds of
arrest were properly communicated to the Petitioner. At the time
st
of 1 remand, the Petitioner has not specifically claimed that the
grounds of arrest were not communicated to him before or
immediately after his arrest. Such a plea cannot be raised by an
accused at every subsequent stage of the remand. Lastly, they
submitted that even assuming for the sake of argument that the
grounds of arrest were not communicated to the Petitioner as
claimed by him, he has not demonstrated that a serious prejudice
caused to him on account of said failure/omission on the part of
the police. The cited decisions in Dr.Rajinder Rajan (supra), is not
applicable to the present case for distinction in facts.
15. To support these submissions, Mr. Pasbola has relied
upon following reported decisions :-
Vicky Bharat Kalyani V/s. 2025 SCC Online
State of Maharashtra and anr. Bom 193
State of Karnataka V/s. Sri Darshan, etc. 2025 SCC OnLine SC 1702
16. I have considered the rival submissions. While dealing
with the issue (a), this Court was taken through the material on
record and the cited decisions. According to the learned Senior
st
Counsel Mr. Ponda, at no point of time before passing the 1 police
custody remand Order, the Petitioner was communicated the
ground of his arrest. The Arrest Form is silent about the grounds
and reasons of the arrest. The grounds of arrest of the Petitioner
as stated in the General Diary Entry and the communication under
Section 47 (1) (2) of the BNS, were not sufficient. Therefore, the
st
Petitioner could not defend his 1 remands. Consequently, the
st
arrest, 1 as well as the subsequent remand Orders are illegal.
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Ms. Shinde, the learned APP and Mr. Pasbola, the
learned Senior Counsel replied that, in the Report filed by the
victim, there is specific mention that the Report/Information was
received at 16.00 hours, immediately after reducing the Report
into writing, the Petitioner was summoned to the police station.
Then the Report was entered in the General Diary at 20.08 hours
and registered at 20.41 hours. Soon thereafter, the Petitioner was
arrested at 22.29 hours and accordingly, General Diary Entry
No.40 was recorded. Therefore, there is no substance in the claim
that the Petitioner was not informed about the grounds of arrest.
17. In so far as the Arrest Form is concerned, Mr.Ponda,
the learned Senior Counsel is correct, because, one would find ‘nil’
information in the said document about the reasons for and the
grounds of the arrest of the Petitioner. The Arrest Form is a simply
a proforma which is proof of the arrest of the Petitioner and
conveying that fact to his relative. In the communication under
Section 35 (1) (b) of the BNSS served upon the Petitioner, it is
stated that the Petitioner was arrested for following reasons :
:-
गि  रप्तारीकेकारण
१. अन्य कि सी भी अपराध ो रने से प्रतिबंतिध रने या नया अपराध होने से
रोने े लिए।
२. साक्ष्यों (सबूों) े संरक्षण े लिए - आरोपी े बाहर रहने पर वह
फोरेंसिस या ति+सि,ट साक्ष्यों ो नष्ट र सा है।
३. पीति+ा और गवाहों ी सुरक्षा - पीति+ा या गवाहों ो धमाने ी या उन
पर दबाव बनाने ी ीव्र संभावना है।
४. ,ांच और पूछाछ - अपराध में इस्ेमा किए मोबाइ/ैपटॉप ो ,ब्
रने और ब्,े में ेने े लिए ,ांच रने हेु।
५. फरार होने से रोने े लिए - ानून े चंगु से बचने े लिए आरोपी
फरार न हो ,ाए, इसलिए।
६. सि,स व्यकिE ो मामे े वास्किव थ्यों ी ,ानारी है, एसे व्यकिE ो
न्यायाय या ,ांच अतिधारी े सामने सच उ,ागर रने से रोने, उसे प्रोभन
देने, धमी देने या उसे ोई आश्वासन देने से प्रतिबंतिध रने े लिए।
७. तिचकित्सीय ,ांच राने े लिए।
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17.1 The General Diary Entry No.40 mentions that the
Petitioner was arrested for the same reasons and on the same
grounds.
17.2 In the communication under Section 47 (1) (2) of the
BNSS served upon the Petitioner, he was informed about the
grounds of his arrest as under :-
किवषयः- आरोपी ी किगरफ्ारी े आधारों ी ,ानारी देने े संबंध में।
संदभNः- अपराध क्रमां  २२६/२०२६ धारा ६४, ७५, ७६, ७७, ७८, ७९,३५१(२),
३५२, ३०८, ११५ (२) भारीय न्याय संकिहा माथ ही धारा ६६ (ई) आयटी ॲक्ट,
२०००
आपो इसे द्वारा सूतिच किया ,ाा है कि आपे किवरुद्ध ा+देव पुलिस
स्टेशन, मुंबई में आ, किदनां २१. ०५.२०२६ ो अपराध क्रमां २२६/२०२६ े ह
भारीय न्याय संकिहा ी धारा ६४, ७५, ७६, ७७, ७८, ७९,३५१(२), ३५२, ३०८,
११५ (२) भारीय न्याय संकिहा साथ ही धारा ६६ (ई) आयटी ॲक्ट, २००० े
अनुसार मामा द,N किया गया है। उE अपराध में आपी संलिप्ता (सहभाकिगा) पाई गई
है।
उE अपराध ी ,ांच हमारे पास द,N है और हम स्वयं इस मामे ी ,ांच र रहे
हैं। इस अपराध ी ,ांच े सिससिसे में आपो किनम्नलिलि] आधारों पर किदनां
२१.०५.२०२६ ो रा २२.२५ वा. किगरफ्ार किया ,ा रहा है।
किगरफ्  ारी  े आधार
१. पीकि^ ा ने आपे लि]ाफ ानूनी शिशाय द,N राई है।
२. अपराध ी अब  ी ,ांच से यह स्पष्ट रूप से किद]ाई दे रहा है कि इस अपराध में
आपी प्रत्यक्ष संलिप्ता है।
18. Now turning to the requirements to be fulfilled in law
towards arrest of an accused, communicating him; his family
member/friend about his arrest, its reasons and the grounds of his
arrest. In the case of Prabir Purkayastha (supra), while
distinguishing the phrase ‘reasons for arrest’ and ‘grounds of
arrest’, in paragraph 48, the Hon’ble Supreme Court enunciated
thus :-
“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
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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 tempering 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 in italic and underlined)
19. On similar line, in the case of Vihan Kumar (supra)
the Hon’ble Supreme Court in paragraph 26 concluded that :-
“26.1. The requirement of informing a person arrested of
grounds of arrest is a mandatory requirement of Article 22
(1);
26.2. 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;
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26.3. 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);
26.4. 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 22 (1) 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);
26.5. 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
26.6. 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 Article 22 (1) and 22 of
the Constitution is established.”
20. In the instant case, as noted above, the General Diary
Entry No.40, mainly, mentions about the conditions with which
the police concerned was satisfied to arrest the Petitioner without
a warrant. Exactly the same is mentioned in the communication
under Section 35 (1) (b) of BNSS, thereby apprising the reasons of
his arrest to the Petitioner. It is thus apparent that the purpose of
recording those documents was only to record and convey the
reasons for the arrest of the Petitioner.
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21. As held in case of Mihir Rajesh Shah (supra), where
the Investigating Officer has sent a notice for appearance of the
accused to join the investigation under Section 41A of CrPC 1973
(now Section 35 (3) to 35 (6) of BNSS 2023) pursuant to which the
accused has joined the investigation, the Investigating Officer,
after perusal of material available before him and/or on
interrogating the accused, makes up his mind that the arrest of the
accused person is required for further investigation or has other
reason(s) for arrest, in such cases, since the accused is under the
supervision of the Investigating Agency and there exists no
apprehension of him absconding, it becomes incumbent upon the
Police Officer to supply the grounds of arrest in writing on
arresting the accused person. The case of Dr. Rajinder Rajan
(supra) also insists upon the same. Therein, the arrest memo was
found to have been prepared in a template format and, by itself,
reflected that the grounds of arrest had been orally explained to
the accused before the process of formal arrest was undertaken.
However, the Hon’ble Supreme Court held that, consequently, it
was incumbent upon the arresting officer to have supplied the
memo of grounds of arrest in writing to the accused two hours
prior to production before the Magistrate. To clarify this more, the
Arrest Form was reproduced as under :-
“Arrest Memo
Consequent upon the recovery/seizure of 2000
Tablets of Tramadol on 02/05/2025 from Corporate
Chemist inside Corporate Hospital, Batola Road,
Amritsar -14300/ and on the basis of voluntarily
statement dated 02/05/2025 of Rajinder Rajan S/O
Janak Raj R/o D-84, Ranjit Avenue, Amritsar, Punjab
recorded u/s 67 of NDPS Act, 1985 having reasons to
believe that Rajinder Rajan has violated section 8 and
22 of NDPS act and committed offence punishable u/s
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8 and 22 of NDPS Act; accordingly, I place Rajinder
Rajan under arrest on 02/05/2025 at 2300 hrs. I have
explained the ground of arrest to him/her before
arrest. (SD)”
21.1 In the case in hand, according to Ms. Shinde, the
learned APP and Mr.Pasbola, the learned Senior Counsel,
immediately upon the victim’s report being reduced into writing,
the Petitioner was summoned to the police station and informed
of the case registered against him. It is submitted that the
Petitioner having been so apprised amounted to sufficient
compliance with the statutory and constitutional requirement of
communicating the ‘grounds of arrest’ to the Petitioner.
Considering this submission in harmony with the communication
thereby informing the ‘grounds of arrest’ to the Petitioner and, the
timings of the Petitioner’s arrest, it can be inferred that
immediately after reducing the Report into writing, the Petitioner
was available in the police station to join the investigation and at
that time, the Investigation Officer was aware of all the basic facts
of the case and the accusations, so as to formulate the ‘grounds of
arrest’ as required in law and pass on to the Petitioner. Since, the
Petitioner was in the police station, he was not likely to abscond.
However, the record is silent as to what precisely was orally
conveyed to the Petitioner at that time, concerning the allegations
in the FIR and the grounds on which he was arrested.
22. In so far as the communication under Section 47 (1)
(2) is concerned, it speaks of only two aspect (as grounds of arrest)
conveyed to the Petitioner : (1) That, the victim has filed a lawful
Complaint/Report against him; and (2) That, the investigation of
the crime conducted so far it has been seen that the Petitioner is
directly involved in this crime. This, as urged by Ms.Shinde, the
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learned APP and Mr.Pasbola, the learned Senior Counsel, is
sufficient and substantive compliance in law, insofar as the
question of furnishing the ‘grounds of arrest’ to the Petitioner is
concerned. However, they have not clarified as to how said
communication complies with the requirements enunciated in the
cases of Prabir Purkayastha (supra) and Vihan Kumar (supra).
Because, even on plain reading of the said communication under
Section 47 (1) (2) of BNSS, it is not fathomable that it had
contained all the necessary details and the basic facts on which the
Petitioner was being arrested so as to provide him an opportunity
of defending himself against custodial remand and to seek bail. In
view thereof, in my considered view, the communication under
Section 47 (1) (2) of the BNSS addressed to the Petitioner was not
sufficient or a substantive compliance of the legal requirement of
informing the ‘grounds of arrest’.
st
23. This diverts me to the Order of 1 remand dated
22.05.2026. By that Order, the learned Magistrate rejected the
contention of the Petitioner that he was informed the grounds of
the arrest. Yet, no brief satisfaction has been recorded in this
Order by the learned Magistrate, as laid down in Vihan Kumar
(supra) in paragraph 26.5, about ascertainment that the impugned
communication under Section 47 (1) (2) of the BNSS had
sufficiently or substantially conveyed the grounds of arrest to the
Petitioner. The line of reasoning adopted by the learned
Magistrate to reject that contention is: in the instant case, the
learned Counsel had appeared for the Petitioner and defended his
case by arguing at length; that the main object of the provision of
Section 47 (1) BNSS is to provide legal aid to the accused for
protecting his constitutional rights; that, in the instant case, the
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learned Counsel had argued before the Court on merit, thereby
fulfilled the main purpose of providing the legal aid to the accused.
Nevertheless, the said Order neither records the
submissions advanced by the learned Counsel appeared on behalf
of the Petitioner nor discloses any reason for rejecting those
submissions. The Order is, in fact, bereft of any consideration of
st
the Petitioner’s defence. Therefore, the 1 remand Order is not
helpful to definitely say that the Petitioner had got sufficient
opportunity of defending himself against the custodial remand
and to seek bail.
24. Ms. Shinde, the learned APP and Mr. Pasbola, the
learned Senior Counsel have mainly banked upon the decision in
case of Sri Darshan (supra). Therein, it is held that “While Section
50 Cr.P.C is mandatory, the consistent judicial approach has been
to adopt a prejudice-oriented test when examining alleged
procedural lapses. The mere absence of written grounds does not
ipso facto render the arrest illegal, unless it results in
demonstrable prejudice or denial of a fair opportunity to defend.”
They have submitted that, in the case in hand, the Petitioner has
not shown that he was prejudiced because of non-communication
of the grounds of his arrest. Therefore, his arrest and the remand
Orders cannot be rated as illegal. But, I find it difficult to be in
unison with this submission. In this regard, it is apt to refer the
decision in Ahmed Mansoor and Others (supra). Therein, the
Appellants before the Hon’ble Supreme Court were not furnished
with the grounds of arrest when they were apprehended.
Therefore, the order of their arrest and remand was set aside, but,
without touching the issue of demonstrable prejudice. While
dealing with the question involved in that Appeal, the top Court
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also referred to the decision in Sri Darshan (supra) cited by the
Respondent therein. However, observed that the facts governing
were quite different. It was a case dealing with the cancellation of
bail where the charge sheet had been filed and the grounds of
detention were served immediately. The Apex Court has, in fact,
given its approval to the decision in Vihaan Kumar (supra).
25. After surveying the decisions in the field, in case of
Mihir Rajesh Shah (supra) it is held that, the grounds of arrest be
communicated in writing within a reasonable time and in any case
at least two hours prior to production of the arrestee for remand
proceedings before the magistrate. In the case in hand, before
st
passing the 1 remand Order, a copy of the PCR Application was
served upon the Petitioner. However, exactly when the copy was
provided or whether such a copy was provided two hours prior to
production of the Petitioner, is not pointed out from the record by
the Respondent. That apart, in case of Ahmed Mansoor and
Others (supra), as noted in paragraph 4, the contention on behalf
of the Respondents was that the grounds of arrest was duly
explained by the Court at the time of remand, followed by
furnishing of a copy of the same containing the grounds of arrest
to the Counsel who appeared with them. However, having regard
to the law laid down in cases of Pankaj Bansal (supra) 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, as well as the observations in
paragraphs 45 to 48 in Prabir Purkayastha (supra) and the
observations in paragraph 3 in Vihaan Kumar (supra), the Hon’ble
Supreme Court in Ahmed Mansoor and Others (supra), in
paragraph 10, held that the explanation by the Court before whom
the arrestees are produced can never be an adequate compliance
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of furnishing the grounds of arrest at the time of securing an
accused.
26. A Constitution Bench in State of West Bengal V/s.
Anwar Ali Sarkar , reported in (1952) 1 SCC 1 , held that procedural
law confers very valuable rights on a person, and their protection
must be as much the object of a Court’s solicitude as those
conferred under the substantive law. This principle, in the case in
hand, appears to be ignored by the police and also by the learned
Magistrate.
27. The aforesaid consideration impels me to hold that, in
the present case, the grounds of arrest were not furnished to the
Petitioner and his relatives, or at least in a sufficient or substantive
manner as per the mandate of the law. Hence, I answer issue (a)
above in ‘negative’. As a corollary, I hold that the arrest of the
Petitioner is illegal on account of not furnishing him the grounds
of his arrest as needful in law. Nevertheless, the learned
Magistrate remanded him to custody from time to time. This is
impermissible in law as it is against the safeguards provided to
protect the Constitutional rights of a person arrested by a police
without warrant. Consequently, the impugned Order of arrest and
the remand Orders are not sustainable in law and liable to be set
aside. Issue (b) stands answered in ‘affirmative’, accordingly.
28. The Petition thus deserves to succeed in terms of
prayer clauses (a) to (c) noted above only on the ground that the
mandate of furnishing the grounds of arrest at the time of securing
the Petitioner has not been complied with. It is, therefore, not
necessary to go into the merits of the case. Hence, following Order
is passed :-
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(i) The Arrest of the Petitioner in connection with the
FIR bearing C.R.No.226/2026, dated 21.05.2026, registered
with Tardeo Police Station is declared as illegal it being in
violation of Article 21 and 22 of the Constitution of India.
(ii) The Order of the Arrest of the Petitioner and the
impugned remand Orders dated 22.05.2026, 25.05.2026
th th
and 28.05.2026 passed by the 18 & 40 Court of the
learned Judicial Magistrate First Class, Girgaon Mumbai,
are quashed and set aside.
(iii) The Petitioner is directed to be forthwith released
from the judicial custody in connected with the FIR bearing
C.R.No.226/2026, dated 21.05.2026, registered with
Tardeo Police Station.
(iv) However, liberty is granted to the Respondent-State
to take recourse to law, to arrest, if a case is made out.
(v) It is abundantly made clear that that none of the
observations made above shall be treated as a comment on
the merits of the case.
(vi) Petition stands disposed of in aforesaid terms.
29. Since the intervention and hearing opportunity was granted
to the victim, Interim Application No.2126 of 2026 seeking said
relief, is disposed of, accordingly.
(SHYAM C. CHANDAK, J.)
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