Supreme Court: While considering the instant appeal concerning violation of appellant’s right under Article 22(1) of the Constitution as he was not informed of the grounds for his arrest; the Division Bench of Abhay S. Oka and N. Kotiswar Singh**, JJ., taking note of the facts of the case, found that the grounds of arrest were not communicated to the appellant as mandated by Article 22(1), therefore, the appellant’s arrest was rendered illegal.
Abhay S. Oka, J., also took stern note of the shocking treatment given to the appellant by the police, whereby he was taken to a hospital while he was handcuffed and was chained to the hospital bed. Which was a violation of the fundamental right of the appellant under Article 21 of the Constitution. Therefore, the Court directed State of Haryana to issue guidelines/departmental instructions to the police (i) to ensure that the act of handcuffing an accused on a hospital bed and tying them to the hospital bed is not committed again; (ii) to ensure that the constitutional safeguards under Article 22 are strictly followed.
In his concurring opinion, N. Kotiswar Singh, J., stated that the requirement of communicating the grounds of arrest in writing is not only to the arrested person, but also to the friends, relatives or such other person as may be disclosed or nominated by the arrested person, so as to make the mandate of Article 22(1) of the Constitution meaningful and effective failing which, such arrest may be rendered illegal.
Background:
The appellant was arrested in connection with FIR registered for the offences under Sections 409, 420, 467, 468 and 471 read with Section 120-B of the Penal Code, 1860 (‘IPC’). It was alleged that neither in the remand report nor in the order dated 11-6-2024 passed by the Magistrate was the time of arrest mentioned. The FIR was registered at the instance of the 2nd respondent. It was noted that according to the case of the 1st respondent, the appellant was arrested on 10-6-2024 at 6.00 p.m. Therefore, compliance with the requirement of Article 22(2) of the Constitution was made.
In an order passed in October 2024 by the Supreme Court, it was pointed out that after the appellant’s arrest, he was hospitalised. Counsel for the appellant had produced photographs showing that the appellant had been handcuffed and chained to the hospital bed.
Courts’s Assessment:
Perusing the matter, the Court pointed out that Section 41(1) of CrPC [corresponding Section 35 of BNSS] lists cases where police may arrest a person without a warrant. In this case, a commission of a cognizable offence punishable with imprisonment for a term which may extend to more than seven years has been alleged against the appellant. Hence, Section 41(1)(ba) will apply. However, a police officer cannot casually arrest a person against whom the commission of an offence punishable with imprisonment for more than seven years is alleged. He can arrest provided twin conditions in clause (ba) are satisfied. The emphasis is on “credible information”. He cannot arrest a person under clause (ba) unless credible information is received.
The Court further perused Section 50 of CrPC and Article 22(1) of the Constitution. The Court pointed out that Article 22(1) is concerned, the legal position is well-settled. The Court said that in the case of Pankaj Bansal v. Union of India, (2024) 7 SCC 576, the Court dealt with Section 19 of the Prevention of Money Laundering Act, 2002. There are two parts of Section 19(1). The first part is the requirement of recording in writing the reason to believe that any person has been guilty of an offence punishable under the PMLA. No such requirement of recording in writing the reason to believe is found in Section 41(1)(ba), CrPC. The second requirement incorporated in Section 19(1) is that the person arrested shall be informed of the grounds of such arrest as soon as may be. The second part is the requirement incorporated in Article 22(1). Therefore, even under Section 19(1) of PMLA, there is a requirement to inform the arrestee of the grounds of arrest.
Referring to relevant precedents the Court explained that the language used in Articles 22(1) and 22(5) regarding communication of the grounds is identical, and therefore, interpretation of Article 22(5) made by the Constitution Bench in the case of Harikisan v. State of Maharashtra, 1962 SCC OnLine SC 117, shall ipso facto apply to Article 22(1) of the Constitution insofar as the requirement to communicate the ground of arrest is concerned. Therefore, as far as Article 22(1) is concerned, compliance can be made by communicating sufficient knowledge of the basic facts constituting the grounds of arrest to the person arrested. The grounds should be effectively and fully communicated to the arrestee in the manner in which he will fully understand the same. Therefore, it follows that the grounds of arrest must be informed in a language which the arrestee understands.
If the grounds of arrest are not communicated to the arrestee, as soon as may be, he will not be able to effectively exercise the right to consult an advocate. This requirement incorporated in Article 22(1) also ensures that the grounds for arresting the person without a warrant exist. Once a person is arrested, his right to liberty under Article 21 is curtailed. When such an important fundamental right is curtailed, it is necessary that the person concerned must understand on what grounds he has been arrested.
Thus, the requirement of informing the person arrested of the grounds of arrest is not a formality but a mandatory constitutional requirement. Article 22 is included in Part III of the Constitution under the heading of Fundamental Rights. Thus, it is the fundamental right of every person arrested and detained in custody to be informed of the grounds of arrest as soon as possible. If the grounds of arrest are not informed as soon as may be after the arrest, it would amount to a violation of the fundamental right of the arrestee guaranteed under Article 22(1) of the Constitution. It will also amount to depriving the arrestee of his liberty. The reason is that, as provided in Article 21, no person can be deprived of his liberty except in accordance with the procedure established by law. The procedure established by law also includes what is provided in Article 22(1). Therefore, when a person is arrested without a warrant, and the grounds of arrest are not informed to him, as soon as may be, after the arrest, it will amount to a violation of his fundamental right guaranteed under Article 21 as well.
The Court further explained that the grounds of arrest must exist before the same are informed. Therefore, in a given case, even assuming that the case of the police regarding requirements of Article 22(1) of the constitution is to be accepted based on an entry in the case diary, there must be a contemporaneous record, which records what the grounds of arrest were. When an arrestee pleads before a Court that grounds of arrest were not communicated, the burden to prove the compliance of Article 22(1) is on the police.
The Court further explained that Section 50, CrPC cannot have the effect of diluting the requirement of Article 22(1). Section 50 lays down the requirement of communicating the full particulars of the offence for which a person is arrested to him. The ‘other grounds for such arrest’ referred to in Section 50(1) have nothing to do with the grounds of arrest referred to in Article 22(1). The requirement of Section 50 is in addition to what is provided in Article 22(1).
When an arrested person is produced before a Judicial Magistrate for remand, it is the duty of the Magistrate to ascertain whether compliance with Article 22(1) has been made. The reason is that due to non-compliance, the arrest is rendered illegal; therefore, the arrestee cannot be remanded after the arrest is rendered illegal. It is the obligation of all the Courts to uphold the fundamental rights.
Kotiswar, J., stated that provision of requirement for communicating the grounds of arrest, to be purposeful, is also required to be communicated to the friends, relatives or such other persons of the accused as may be disclosed or nominated by the arrested person for the purpose of giving such information as provided under Section 50-A of the CrPC. As may be noted, this is in the addition of the requirement as provided under Section 50(1) of the CrPC. The purpose of inserting Section 50-A of the CrPC, making it obligatory on the person making arrest to inform about the arrest to the friends, relatives or persons nominated by the arrested person, is to ensure that they would able to take immediate and prompt actions to secure the release of the arrested person as permissible under the law.
CASE DETAILS
|
Citation: Appellants : Respondents : |
Advocates who appeared in this case For Petitioner(s): For Respondent(s): |
CORAM :
Buy Constitution of India HERE
Buy Penal Code, 1860 HERE
