Vicky Bharat Kalyani Vs State of Maharashtra and Another (Bombay High Court)
Summary: The Bombay High Court, in Vicky Bharat Kalyani Vs State of Maharashtra and Another, considered a large batch of criminal writ petitions raising important questions concerning the legality of arrest, communication of grounds of arrest, compliance with Sections 41, 41A, 50 and 50A of the Code of Criminal Procedure, 1973, and the constitutional protection of personal liberty under Articles 21 and 22 of the Constitution of India. The Division Bench comprising Justice Sarang V. Kotwal and Justice S. M. Modak delivered its judgment on 31 January 2025 after reserving it on 17 January 2025. The petitions arose from arrests made in different criminal investigations, including cases involving offences under the Indian Penal Code, the Narcotic Drugs and Psychotropic Substances Act, the Maharashtra Control of Organised Crime Act and other special criminal statutes. The petitioners contended that their detention had become illegal because the investigating authorities had failed to communicate the grounds of arrest in writing or comply with the procedure prescribed for issuing notices before arrest. The Bench observed that different courts and investigating agencies were adopting inconsistent approaches to these requirements, resulting in conflicting decisions and uncertainty about the appropriate remedies. Considering the importance of the questions affecting a large number of arrested persons, the High Court concluded that authoritative determination by a Larger Bench was necessary.
The principal controversy arose from the interpretation of Section 50(1) CrPC, which requires a police officer arresting a person without a warrant to communicate forthwith the full particulars of the offence or other grounds for arrest. The petitioners argued that this obligation must be understood in light of the constitutional mandate under Article 22(1) and the Supreme Court decisions in Pankaj Bansal Vs Union of India, Ram Kishor Arora Vs Directorate of Enforcement and Prabir Purkayastha Vs State (NCT of Delhi). They submitted that the Supreme Court’s insistence on furnishing written grounds of arrest under the Prevention of Money Laundering Act and the Unlawful Activities (Prevention) Act should equally govern ordinary arrests under the CrPC. According to the petitioners, merely informing an accused orally about the allegations would not provide an effective opportunity to consult legal counsel, oppose custodial remand or seek bail. Reliance was also placed on the Bombay High Court judgment in Mahesh Pandurang Naik Vs State of Maharashtra, where the Court had required written communication of the grounds of arrest. The petitioners maintained that failure to comply with this constitutional safeguard rendered the arrest and subsequent detention unlawful irrespective of the seriousness of the alleged offence.
The individual facts of the lead petition illustrated the practical significance of the dispute. In the case of Vicky Bharat Kalyani, an accused had been apprehended on 11 May 2023 carrying contraband, resulting in registration of an offence under the NDPS Act. During investigation, the petitioner’s name surfaced and he was arrested on 28 September 2024. His anticipatory bail application had earlier been rejected in March 2024, and his subsequent regular bail application was rejected by the Special Court in November 2024. Instead of approaching the High Court for bail on merits, the petitioner challenged his detention through a writ petition alleging non-compliance with Section 50 CrPC and Section 52 of the NDPS Act. He argued that the grounds of arrest had not been furnished in writing and that his first remand, obtained on 29 September 2024, could not validate an arrest effected in violation of mandatory constitutional and statutory safeguards. Other petitioners raised comparable challenges involving alleged cheating, misappropriation, murder, organised crime and narcotic offences. Their common position was that procedural protection against arbitrary arrest could not depend upon the nature of the alleged offence. They also questioned whether the failure to supply written grounds before remand necessarily entitled an accused to immediate release.
The State of Maharashtra, represented by Advocate General Dr. Birendra Saraf, opposed the petitioners’ interpretation and emphasised the practical difficulties that would arise if written grounds of arrest were treated as an inflexible requirement applicable to every situation. The State argued that police officers may have to arrest persons while they are committing serious offences, immediately after violent incidents, or after locating absconding accused in circumstances where preparing and serving a written statement at the precise moment of arrest may not be practicable. It was submitted that Section 50 CrPC does not expressly prescribe written communication and that the expression requiring information to be furnished forthwith should be interpreted in its statutory context. The State distinguished the Supreme Court’s decisions concerning arrest under the PMLA and UAPA from ordinary arrests governed by the CrPC. It also pointed to the potential consequences of releasing accused persons in serious criminal matters solely because of procedural irregularities, including interference with investigations, destruction of evidence, intimidation of witnesses and risks to victims. The State relied upon the principles governing arrest under Sections 41 and 41A CrPC, including those discussed in Arnesh Kumar Vs State of Bihar and judicial and administrative arrest safeguards, to contend that the statutory scheme required a balanced interpretation rather than an automatic rule of release.
Examining the rival submissions, the Division Bench recognised that an arrested person must be informed of the reasons for arrest and that this obligation is fundamentally connected with the protection of liberty. However, it noted that the language of Section 50 CrPC does not expressly state that the grounds must invariably be communicated in writing. The Court observed that Sections 50 and 50A had to be considered within the broader statutory framework and that practical circumstances could arise in which immediate preparation and service of written grounds would be difficult. On the question of whether the Supreme Court’s interpretation of arrest provisions under special statutes automatically applied to all arrests under the CrPC, the Bench expressed disagreement with the approach adopted in Mahesh Pandurang Naik and certain subsequent Bombay High Court decisions. At the same time, the Bench rejected the proposition that an accused could be denied communication of grounds merely because an anticipatory bail application had previously been rejected. It reasoned that knowledge acquired during anticipatory bail proceedings could not substitute the investigating officer’s statutory duty to communicate why an arrest was being effected. The Bench also observed that Section 50 itself did not differentiate between arrests for serious and less serious offences. These competing considerations led it to conclude that the precise mode, timing and legal consequences of communication required examination by a Larger Bench.
The High Court also examined the consequences of an arrest allegedly made without proper communication of grounds, including the possibility of re-arrest after release for procedural non-compliance. The petitioners maintained that once an arrest was declared unconstitutional, a subsequent arrest on the same material would undermine the protection guaranteed by Article 21. The State contended that release on account of a procedural defect did not permanently prohibit a lawful arrest after compliance with the prescribed requirements. The Bench expressed the view that there was no absolute statutory bar against re-arrest following release for non-compliance with Section 50 CrPC, provided the applicable legal procedure was subsequently followed. It referred to Kavita Manikikar Vs Central Bureau of Investigation, where an arrest was held unlawful because of non-compliance with restrictions on arresting women after sunset, while the possibility of lawful re-arrest was recognised. The Bench also stressed that the rights of victims and witnesses required consideration alongside the rights of accused persons. In serious offences involving murder, sexual violence, organised crime and narcotics, release without consideration of investigative risks could have significant consequences. Nevertheless, these observations formed part of the reasoning supporting reference to a Larger Bench and were not a final binding resolution of every question raised. The subsequent Supreme Court discussion of re-arrest following an unconstitutional arrest illustrates the continuing importance of the issue.
Another major issue concerned the obligation to issue a notice under Section 41A CrPC before arrest, particularly where the alleged offence was punishable with imprisonment up to seven years. The petitioners relied upon Arnesh Kumar Vs State of Bihar, Satender Kumar Antil Vs Central Bureau of Investigation and the Bombay High Court’s administrative notification dated 21 October 2023 to submit that police officers could not routinely arrest persons without first considering the statutory conditions governing arrest and notice of appearance. They argued that the requirement was intended to prevent unnecessary detention and that failure to follow it could invalidate the arrest. The State, however, emphasised that Section 41 permits arrest where statutory conditions are satisfied and where arrest is necessary for proper investigation, prevention of further offences, protection of evidence or securing the accused’s presence. The Bench considered the potential difficulties arising from a universal requirement of advance notice, particularly in cases involving financial fraud, threats to witnesses, destruction of evidence and serious criminal conspiracies. It also noted differences between earlier judicial decisions concerning whether issuing a Section 41A notice was mandatory before every arrest involving an offence punishable up to seven years. Having examined the principles discussed in Satender Kumar Antil and related precedents, the Court considered that this question also required authoritative clarification.
Ultimately, the Bombay High Court referred six principal questions, including several subsidiary questions, to a Larger Bench. These included whether the Supreme Court decisions in Pankaj Bansal, Ram Kishor Arora and Prabir Purkayastha applied to Section 50 CrPC and offences outside the PMLA and UAPA; whether Section 50 mandated written grounds of arrest; whether such grounds had to be furnished at the time of arrest or before the first remand; whether the gravity of the offence, circumstances of arrest or prejudice to the accused could affect compliance; which judicial forum could entertain a challenge to illegal detention; and the date from which any mandatory written-communication requirement should operate. The Court additionally referred questions concerning the permissible timing of oral communication, the legality of re-arrest after release for non-compliance, and whether a Section 41A notice was invariably necessary before arrest in offences punishable up to seven years. It further observed that clear procedural guidelines were needed to ensure that the first remand report was supplied sufficiently in advance to the arrested accused, allowing a meaningful opportunity to contest custodial detention. Exercising the procedure contemplated under Rule 8 of Chapter I of the Bombay High Court Appellate Side Rules, 1960, the Division Bench directed the Registry to place the matter before the Chief Justice for consideration of a Larger Bench of three or more Judges. The judgment therefore constitutes a reference order addressing significant conflicts in arrest jurisprudence; it does not finally dispose of the individual petitions on their merits or establish a conclusive universal rule on written grounds of arrest.
Cases Discussed
1. Pankaj Bansal Vs Union of India and Others (Supreme Court); 2023 SCC OnLine SC 1244; (2024) 7 SCC 576; Criminal Appeal Nos. 3051–3052 of 2023; 03/10/2023. A principal decision cited regarding the constitutional and statutory requirement to furnish grounds of arrest in writing under Section 19 of the PMLA. The applicability of its reasoning to ordinary arrests under Section 50 CrPC formed a central question referred to the Larger Bench. Related TaxGuru discussion: arrest safeguards.
2. Ram Kishor Arora Vs Directorate of Enforcement (Supreme Court); (2024) 7 SCC 599. Considered in relation to compliance with communication requirements under the PMLA, the timing of furnishing arrest grounds and the effect of procedural safeguards upon the validity of custody.
3. Prabir Purkayastha Vs State (NCT of Delhi) (Supreme Court); 2024 SCC OnLine SC 934; 2024 INSC 414; (2024) 8 SCC 254; 15/05/2024. Relied upon concerning communication of written grounds of arrest, the constitutional guarantee under Article 22(1), and the extension of the principles discussed in Pankaj Bansal to arrests under the UAPA.
4. Mahesh Pandurang Naik Vs State of Maharashtra and Another (Bombay High Court); 2024:BHC-AS:28603-DB; Criminal Writ Petition (Stamp) No. 13835 of 2024; 18/07/2024. A major Bombay High Court precedent requiring written grounds of arrest under Section 50 CrPC. The present Division Bench expressed disagreement with its approach and referred the question to a Larger Bench.
5. Manulla Kanchwala Vs State of Maharashtra (Bombay High Court); Criminal Writ Petition No. 3276 of 2024; 14/08/2024. Cited among the Bombay High Court decisions granting relief in cases involving non-compliance with Section 50 CrPC.
6. Nisha Gaikwad and Others Vs State of Maharashtra (Bombay High Court); Criminal Writ Petition (Stamp) No. 19472 of 2024; 15/10/2024. Referred to in connection with release from custody following non-compliance with Section 50 CrPC, notwithstanding the seriousness of the alleged offences.
7. Jahir Sukha Khan Vs State of Maharashtra (Bombay High Court); Criminal Writ Petition (Stamp) No. 18225 of 2024; 16/10/2024. Considered as an example of relief granted on arrest-procedure grounds in a case involving serious criminal allegations.
8. Sachin Nimbalkar Vs State of Maharashtra (Bombay High Court); Criminal Writ Petition (Stamp) No. 17029 of 2024; 23/10/2024. Cited concerning the consequences of failure to comply with Section 50 CrPC in a case involving an alleged murder offence.
9. Shrawan Joshi Vs Union of India (Bombay High Court); Criminal Writ Petition (Stamp) No. 21016 of 2024; 25/11/2024. Referred to regarding the applicability of arrest safeguards in a prosecution under the NDPS Act.
10. Bharat Chaudhary Vs State of Maharashtra and Others (Bombay High Court); Writ Petition No. 3604 of 2024; 25/10/2024. Cited as another decision granting relief on account of non-compliance with statutory arrest safeguards.
11. Hanuman Choudhary Vs State of Maharashtra (Bombay High Court); Criminal Writ Petition (Stamp) No. 17755 of 2024; 25/10/2024. Considered with other NDPS cases in which the Bombay High Court had granted relief for non-compliance with Section 50 CrPC.
12. Mihir Rajesh Shah Vs State of Maharashtra (Bombay High Court); 2024 SCC OnLine Bom 3660; Criminal Writ Petition No. 3533 of 2024; 25/11/2024. Discussed as a decision taking a different approach to release for non-compliance with arrest safeguards. The present Bench examined the resulting inconsistency in Bombay High Court jurisprudence. A later Supreme Court judgment involving Mihir Rajesh Shah is separately available on TaxGuru.
13. Amit Giridhar Lalge Vs State of Maharashtra and Another (Bombay High Court); Criminal Writ Petition No. 4487 of 2024; 28/11/2024. Cited by the petitioners to demonstrate that relief had been granted for non-compliance with Section 50 CrPC even in a case involving allegations of wrongful approval and disbursement of tax refunds.
14. Arnesh Kumar Vs State of Bihar and Another (Supreme Court); (2014) 8 SCC 273. A principal precedent on safeguards against unnecessary arrest and the statutory conditions governing arrest under Section 41 CrPC and notice under Section 41A CrPC.
15. Satender Kumar Antil Vs Central Bureau of Investigation and Another (Supreme Court); (2022) 10 SCC 51. Examined in relation to mandatory compliance with Sections 41 and 41A CrPC and the consequences of non-compliance when an accused seeks bail. TaxGuru judgment PDF.
16. Prajith Thayyil Kallil Vs State of Maharashtra (Bombay High Court); 2022 SCC OnLine Bom 1051; Anticipatory Bail Application No. 161 of 2022 and connected matters; 05/05/2022. Relied upon concerning the power to refer important legal questions to a Larger Bench under the Bombay High Court Appellate Side Rules.
17. Anant H. Ulhalkar Vs Chief Election Commissioner (Bombay High Court); 2017 (1) Mh.L.J. 431. Considered on the principles governing reference of a matter to a Larger Bench.
18. Jalgaon Janta Sahakari Bank Ltd. Vs Joint Commissioner of Sales Tax and Another (Bombay High Court); Original Side Writ Petition No. 2935 of 2018; order dated 25/11/2021. Referred to regarding the circumstances in which a Bench may seek consideration of an important legal issue by a Larger Bench.
19. Prashant Kumar Brahmabhatt Vs State of Maharashtra (Bombay High Court); Writ Petition (Stamp) No. 18663 of 2024; 24/10/2024. Discussed regarding whether a person who had earlier sought anticipatory bail could be considered sufficiently aware of the reasons for arrest. The present Bench disagreed with excluding such persons from the obligation to communicate arrest grounds.
20. Danish Rafiq Fansophkar Vs State of Maharashtra (Bombay High Court); Criminal Writ Petition (Stamp) No. 19471 of 2024; 16/10/2024. Cited by the State in support of considering the circumstances of arrest and the nature of the alleged offence while examining statutory compliance.
21. Kavita Manikikar Vs Central Bureau of Investigation (Bombay High Court); Writ Petition No. 1142 of 2018; 10/05/2018. Relied upon concerning the consequences of an unlawful arrest and the possibility of subsequent arrest after compliance with the applicable legal procedure.
22. Abhijit Arjun Padale Vs State of Maharashtra and Others (Bombay High Court); Writ Petition No. 1197 of 2022; 22/08/2024. Considered in the context of the interpretation of Section 41A CrPC and whether prior notice must be issued before arrest in specified categories of offences.
23. Bhairaram Saraswat Vs State of Maharashtra (Bombay High Court); Criminal Writ Petition (Stamp) No. 7551 of 2024; 05/04/2024. Cited concerning the necessity of compliance with Section 41A CrPC where the alleged offence is punishable with imprisonment up to seven years.
24. John Moses D @ Madan Kumar S/o John Devamani Vs State of Karnataka (Karnataka High Court); Writ Petition No. 22042 of 2024; 28/11/2024. Considered regarding the interpretation of written communication requirements under Section 50 CrPC. The Bombay High Court indicated agreement with aspects of this decision while expressing disagreement with certain coordinate Bench decisions.
25. Vijay Madanlal Choudhary and Others Vs Union of India and Others (Supreme Court); 2022 SCC OnLine SC 929; (2023) 12 SCC 1. Referred to in the discussion of statutory arrest powers under the PMLA and their relationship with constitutional safeguards.
26. V. Senthil Balaji Vs State Represented by Deputy Director and Others (Supreme Court); 2023 SCC OnLine SC 934; (2024) 3 SCC 51. Considered concerning statutory arrest and remand procedures under the PMLA and their distinction from the general CrPC framework.
27. Arvind Kejriwal Vs Directorate of Enforcement (Supreme Court); 2024 INSC 512; (2025) 2 SCC 248. Discussed in relation to statutory safeguards and judicial scrutiny of arrest under Section 19 PMLA. Related TaxGuru publication: Supreme Court on arrest necessity.
28. Md. Asfak Alam Vs State of Jharkhand and Another (Supreme Court); 2023 SCC OnLine SC 892; Criminal Appeal No. 2207 of 2023; 31/07/2023. Referred to through the Bombay High Court’s administrative directions dated 21 October 2023 concerning compliance with Sections 41 and 41A CrPC and the principles established in Arnesh Kumar.
29. Bodhisattwa Gautam Vs Subhra Chakraborty (Supreme Court); (1996) 1 SCC 490. Quoted concerning the protection of victims’ fundamental rights under Article 21, particularly in the context of serious offences such as sexual violence.
