Bombay HC declares arrest illegal as grounds of arrest were communicated to accused’s wife but not to the accused

Bombay High Court: In the present case, petitioner sought a declaration that his arrest in relation to FIR dated 31-10-2023, registered at Karad City Police Station, Satara was illegal and in gross violation of the fundamental rights guaranteed to him under Articles 21 and 22 of the Constitution and he also sought a declaration that the consequential remand order dated 01-11-2023 and all the subsequent remand orders passed by the JMFC, Karad, were null and void and were in violation of fundamental rights guaranteed to him under the Constitution.

The Division Bench of Bharati Dangre and Manjusha Deshpande*, JJ., opined that that there was a violation of Section 50¹ of the Criminal Procedure Code, 1973 (‘CrPC’) and Article 22(1) of the Constitution, and since the grounds of arrest were not communicated to petitioner, his arrest was illegal and in gross violation of petitioner’s fundamental rights.

Background

Petitioner was alleged to be accused of offences punishable under Sections 302², 364³, 324⁴, 323⁵, 143⁶, 147⁷, 148⁸, 149⁹, 504¹⁰ and 506¹¹ of the Penal Code, 1860. He was arrested on 01-11-2023 and was produced before JMFC, Karad and was remanded to police custody till 06-11-2023, and thereafter, his police custody remand was extended up to 07-11-2023.

A complaint was lodged alleging that the complainant’s brother had an affair with the daughter of some person and on 30-10-2023, one known and four unknown persons inquired about the whereabouts of the complainant’s brother and when the complainant informed that he was not aware about his brother’s whereabouts, the known person assaulted the complainant and made the complainant sit in a Bolero car. Further, there was another four-wheeler, wherein the complainant’s father and one Janardhan were sitting along with two other people. The accused persons assaulted Janardhan, the complainant and his father with sticks, fists, and blows and as a result of which, Janardhan expired. Therefore, the FIR was lodged in Karad City Police Station on 31-10-2023.

Petitioner filed the regular bail application, which was pending before the Additional Sessions Judge, Karad and he challenged his arrest in the present case on the ground that, the grounds of arrest were not informed to him in writing and as such his arrest was in gross violation of the constitutional mandate under Article 22(1) of the Constitution, and there was total non-compliance of Section 50 of CrPC.

Analysis, Law, and Decision

The Court noted that no grounds of arrest were communicated to petitioner, and from the arrest panchnama it was evident that the information was given to his wife on the cell number provided by him and apart from that there were no grounds of arrest mentioned in the arrest surrender form.

The Court, as far as ground to be communicated through the remand application was concerned, it relied on Prabir Purkayastha v. State (NCT of Delhi), 2024 SCC OnLine SC 934, wherein the Supreme Court stated that “there is a significant difference between ‘reasons for arrest’ and ‘grounds of arrest’”.

The Court stated that it was the requirement of Section 50 of CrPC that an accused, who was being arrested without warrant to be forthwith communicated about the full particulars of the offence for which he was arrested or the other grounds for such arrest. The Court after considering the submissions and the documents produced on record, noted that the grounds of arrest were not communicated to petitioner as contemplated by Section 50 of CrPC and explained by this Court and the Supreme Court in its various judicial pronouncements.

The Court opined that that there was a flagrant violation of Section 50 of CrPC and Article 22(1) of the Constitution, and since the grounds of arrest were not communicated to petitioner, his arrest was illegal.

The Court thus allowed the writ petition and declared petitioner’s arrest as illegal and in gross violation of petitioner’s fundamental rights. The Court declared the consequential remand order dated 01-11-2023 passed by the JMFC, Karad and the subsequent remand orders as null and void.

The Court directed that petitioner should be released forthwith from custody on furnishing bail bond to the satisfaction of the Trial Court.

[Sachin Mahipati Nimbalkar v. State of Maharashtra, 2024 SCC OnLine Bom 3493, decided on 23-10-2024]

*Judgment authored by: Justice Manjusha Deshpande

Advocates who appeared in this case:

For the Petitioner: Suyash N. Khose a/w Vaibhav Kulkarni, Mangesh Kusurkar and Siddharth Sutaria, for the Petitioner.

For the Respondent: S. S. Kaushik, APP, for the Respondent — State.