Amit Giridhar Lalge Vs State of Maharashtra (Bombay High Court)
Summary: The Bombay High Court, in Amit Giridhar Lalge Vs State of Maharashtra, declared the arrest of a Sales Tax Officer illegal for failure to communicate the grounds of arrest in accordance with Article 22(1) of the Constitution of India and Section 50 of the Code of Criminal Procedure, 1973. The Division Bench comprising Justice Bharati Dangre and Justice Manjusha Deshpande allowed the writ petition and declared the initial and subsequent remand orders null and void. The case arose from allegations that the officer had improperly sanctioned GST refunds aggregating to ₹175 crore to sixteen ineligible taxpayers. The Court, however, confined its examination to the legality of arrest and expressly avoided determining the merits of the financial fraud allegations. Following the Supreme Court decisions in Pankaj Bansal Vs Union of India and Prabir Purkayastha Vs State (NCT of Delhi), the Bench held that awareness of the investigation, prior attendance before the investigating agency, communication of arrest to relatives and execution of an arrest memorandum could not substitute for the mandatory communication of specific grounds of arrest.
The allegations arose from the petitioner’s tenure as Sales Tax Officer at Mazgaon, Mumbai, between August 2021 and March 2022. According to the prosecution, he had sanctioned ineligible tax refunds totalling approximately ₹175 crore to sixteen companies. The Anti-Corruption Bureau registered an FIR dated 28 February 2024 following a complaint by Assistant Commissioner of Sales Tax Sanjay Ravasaheb Tekade. It was alleged that the taxpayers were newly registered, that mandatory verification of their business premises had not been carried out, and that necessary supporting documents were missing from the records. The prosecution claimed that the prescribed refund-sanction procedure had not been followed. These were allegations in the criminal investigation, not findings of guilt made by the High Court.
The petitioner was arrested at his workplace on 25 June 2024 at approximately 12:40 p.m. and produced before the Additional Sessions Judge, 46th Court, Mumbai, at 3:05 p.m. on the same day. The Sessions Court remanded him to police custody until 1 July 2024 and thereafter to judicial custody at Taloja Jail. The petitioner maintained that the investigating authorities had neither supplied written grounds of arrest nor explained them orally. He also contended that no arrest memorandum had been served upon him. According to his submissions, the ACB had searched his residence on 28 February 2024 and he had subsequently attended its office on more than twenty occasions, cooperating with investigators and explaining the GST refund procedure.
The State opposed the petition on the ground that the petitioner was already familiar with the allegations because he had participated in the investigation and his statements had been recorded. The prosecution also asserted that an arrest form was prepared in the presence of two panch witnesses, bearing the petitioner’s signature and thumb impression, and that his legal rights and the reasons for arrest were explained. It further argued that Section 47 of the Bharatiya Nagarik Suraksha Sanhita, 2023, relied upon by the petitioner, was not applicable because the arrest occurred on 25 June 2024, whereas the BNSS came into force on 1 July 2024. The State also pointed out that the petitioner’s bail applications had been rejected twice, on 24 July and 14 August 2024.
The High Court rejected these objections. It held that although Section 47 BNSS was not in force on the date of arrest, the corresponding requirement under Section 50 Cr.P.C. was operative, along with the independently applicable constitutional guarantee under Article 22(1). On examining the FIR, remand application and supporting materials, the Court found no satisfactory evidence that the petitioner had been furnished the grounds of arrest setting out the specific particulars of the offence and the justification for taking him into custody. The remand court had substantially relied on the allegations in the FIR and the investigating officer’s request for custody, without adequately examining compliance with this procedural safeguard.
The Bench relied particularly on Prabir Purkayastha Vs State (NCT of Delhi), which recognised the right of an arrested person to receive written grounds of arrest so that legal counsel could be consulted, custodial remand opposed and bail sought effectively. It also referred to Roy V.D. Vs State of Kerala and Harikisan Vs State of Maharashtra, concerning protection of personal liberty and meaningful communication of grounds. The Court noted that its earlier decisions in Gopal Chandrakant Angchekar Vs State of Maharashtra and Manulla M. Kanchwala Vs State of Maharashtra had followed similar principles.
The High Court concluded that failure to supply the grounds of arrest vitiated the arrest and all consequential remand orders. It declared the arrest in FIR No. 7 of 2024 dated 28 February 2024 illegal, quashed the remand order dated 25 June 2024 and subsequent remand orders, and directed that the petitioner be released on furnishing bail bonds to the satisfaction of the Trial Court, noting that the charge-sheet had already been filed. The order did not quash the FIR, cancel the criminal prosecution, grant an acquittal or rule upon the validity of the underlying GST refunds. The decision establishes that procedural protection against unlawful arrest remains enforceable even in cases involving substantial allegations of revenue fraud and even when bail has previously been refused on merits.
Cases Discussed
1. Lallubhai Jogibhai Patel Vs Union of India and Others (Supreme Court); 1980 0 Supreme (SC) 521 — Cited by the petitioner concerning constitutional safeguards governing deprivation of personal liberty and communication of grounds of detention.
2. Harikisan Vs State of Maharashtra and Others (Supreme Court); 1962 SCC OnLine SC 117 — Discussed in the Supreme Court extract concerning the requirement that grounds of detention be communicated effectively, in writing and in a language understood by the affected person.
3. Roy V.D. Vs State of Kerala (Supreme Court); (2000) 8 SCC 590 — Quoted through the Supreme Court’s decision in Prabir Purkayastha regarding constitutional protection of life and personal liberty.
4. Arnab Manoranjan Goswami Vs State of Maharashtra and Others (Supreme Court); 2020 6 Supreme 93; 2020 0 Supreme (SC) 678 — Cited by the petitioner on judicial protection against unlawful deprivation of liberty.
5. Pankaj Bansal Vs Union of India and Others (Supreme Court); 2023 SCC OnLine SC 1244; (2024) 7 SCC 576 — Relied upon in support of the mandatory requirement to furnish written grounds of arrest.
6. Mahesh Pandurang Naik Vs State of Maharashtra (Bombay High Court); Criminal Writ Petition (St.) No. 13835 of 2024; 18/07/2024 — Cited as a Bombay High Court decision applying the constitutional requirement of written grounds of arrest.
7. Gopal Chandrakant Angchekar Vs State of Maharashtra and Another (Bombay High Court); Criminal Writ Petition (St.) No. 14935 of 2024; 02/08/2024 — Followed concerning the consequences of failure to communicate grounds of arrest.
8. Manulla M. Kanchwala Vs State of Maharashtra (Bombay High Court); Criminal Writ Petition No. 3276 of 2024; 14/08/2024 — Relied upon in holding that an arrest and consequential remand cannot stand where the necessary written grounds were not furnished.
9. Prabir Purkayastha Vs State (NCT of Delhi) (Supreme Court); 2024 INSC 414; (2024) 8 SCC 254 — Principal precedent relied upon. Paragraphs 20–22 and 25 were extracted concerning written grounds of arrest, personal liberty, constitutional compliance and the invalidity of remand following unlawful arrest.
FULL TEXT OF THE ORIGINAL JUDGMENT/ORDER
1. Rule. Rule made returnable forthwith, with the consent of the parties.
2. The petitioner is seeking declaration that his arrest is illegal and in gross violation of his fundamental right guaranteed by the Constitution of India. The petitioner has been arrested on 25.06.2024 at 12:40 p.m. from his place of work i.e. GST Office during office hours. It is the contention of the petitioner that he has not been served with any grounds of arrest in writing or orally. Even the arrest memo has not been served on him. Without serving him the grounds of arrest or arrest memo, he has been straightway produced before the Court of Additional Sessions Judge, 46th Court, Mumbai on 25.06.2024 at 03:05 p.m.
Upon being produced before the Additional Sessions Judge, he was remanded to police custody till 01.07.2024 and on 01.07.2024 he was remanded to judicial custody, and lodged at Taloja Jail. It is contended that since he is arrested without following the due procedure of law, such arrest is bad and nullity in the eyes of law.
3. The case of the prosecution in brief is that, the complainant namely Mr. Sanjay Ravasaheb Tekade, Assistant Sales Tax Commissioner has filed a complaint against the petitioner with the Anti-Corruption Bureau (“ACB”). It is alleged that, while the petitioner was working on the post of Sales Tax Officer, during his tenure at Mazgaon, Mumbai for the period commencing from August 2021 to March 2022 he has sanctioned ineligible refund and distributed the same to the taxpayers. A report to that effect has been submitted to the Commissioner of Tax, State of Maharashtra, Mumbai. According to the report, a financial fraud has been committed by distributing ineligible tax refund to sixteen taxpayers between the period August 2021 to March 2022.
4. Pursuant to the filing of the report, the Commissioner of Tax, Mumbai, directed the Assistant Commissioner of Sales Tax, Mumbai to initiate criminal action against the petitioner. Accordingly, offence came to be registered with the ACB, Mumbai. It is alleged that the petitioner by using his authority has wrongly approved and disbursed the ineligible refund amounting to Rs.175 crores to the sixteen companies after following the online procedure, which is stated in the FIR.
Though the taxpayers were ineligible to receive refund, however ignoring it the petitioner has sanctioned the refund. The details of all the sixteen taxpayers are given in detail in the FIR. It is alleged in the FIR that, since the sixteen taxpayers were registered for the first time, it was incumbent upon the petitioner to visit the place of business, he has not visited the place of business purposely. So also while making the refund the necessary documents are not found in the record. While sanctioning the refund the proper procedure as prescribed under law has not been followed by the petitioner on the basis of the allegations in the FIR, the petitioner has been arrested.
5. It is the contention of the petitioner that, on 28.02.2024 the Investigating Agency conducted a search of his house. Thereafter the petitioner visited the office of Respondent No. 2, more than 20 times and has co-operated with the Investigating Agency. He has also explained the procedure of GST refund. According to him, he has maintained a diary where the dates of his visits to the office of Investigating Agency i.e. ACB, Worli, Mumbai from 29.02.2024 has been maintained. Meaning thereby, whenever the petitioner was summoned, he has been co-operating with the Investigating Agency by giving them all the necessary details. In spite of his co-operation he has been arrested on 25.06.2024 without furnishing him grounds of arrest.
It is further contention of the petitioner that, though the FIR has been filed on 28.02.2024, he has been all of a sudden arrested on 25.06.2024 at about 12:40 p.m. When the petitioner has been all the while co-operating with the Investigating Officers, such a drastic step of curtailing the personal liberty of the petitioner by arresting him has been taken by the respondents.
6. The remand application seeking custody of the petitioner has been placed on record by the petitioner at Exhibit – B. The date and time of arrest and also the reasons for arrest of the petitioner have been disclosed in the remand application. It merely mentions that the petitioner has sanctioned refund to sixteen taxpayers without following due procedure of law, and it states that his involvement in the said offence has been disclosed during the investigation, and adhering to the guidelines issued by the Hon’ble Supreme Court the petitioner has been arrested on 25.06.2024. The information of his arrest has been given to his sister and the superiors.
The remand application was allowed by the Additional Sessions Judge, 46th Court, Mumbai, granting PCR till 01.07.2024. So far as the procedure undertaken while effecting arrest of the petitioner is concerned, it is recorded by the Sessions Judge, that the Investigating Officer has informed that arrest panchanama is carried out by her and information of arrest is given to his sister on her cellphone. Apart from this, there is nothing on record that would indicate that the grounds of arrest have been communicated to the petitioner, as contemplated under Section 47 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (for short “the BNSS, 2023”).
7. Section 47 of the BNSS, 2023 reads thus:
“47. 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.
(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.”
It is incumbent upon a police officer to communicate forthwith full particulars of the offence for which a person is arrested, when such person is arrested without a warrant. It is also necessary to inform the person so arrested about his entitlement to be released on bail where the offence is of non-bailable in nature.
8. It is contended by, Mr. Mohan Tekavde, learned counsel for the petitioner that, the petitioner has neither been served with arrest memo nor provided with grounds of arrest in writing or orally, therefore his arrest is in gross violation under Article 22 of the constitution of India and also against the mandate of Section 47 of the BNSS, 2023. It is contended that, merely successive remand orders are not sufficient to validate the initial remand, if such arrest itself was not in conformity with the provisions of law.
According to the learned counsel Mr. Tekavde, since the grounds of arrest were not furnished to the petitioner at the time of his arrest, his continuing custody pursuant to remand is rendered grossly illegal and is nullity in the eyes of law. Though the petitioner had fully co-operated with the Investigating Agency by visiting the office of Respondent No. 2 more than 20 times and imparting the necessary information which he was called upon to give yet, he has been arrested without valid reason that too without following due procedure of law, which renders his arrest illegal bad in law.
The learned counsel for the petitioner has relied on the following judgments of the Hon’ble Supreme Court, in support of his contentions:
(i) Arnab Manoranjan Goswami V/s. The State of Maharashtra and Ors.1
(ii) Lallubhai Jogibhai Patel V/s. Union of India and Ors.2
(iii) Pankaj Bansal V/s. Union of India and Ors.3
(iv) Prabir Purkayastha V/s. State (NCT of Delhi)4
All the above judicial pronouncements in clear term have laid down that ‘grounds of arrest’ in writing are required to be communicated to an accused by the Investigating Officer, stating basic fact for which he is arrested, so as to provide him an opportunity to defend himself against the custodial remand and for seeking bail.
The learned counsel for the petitioner has also relied on the judgment of this Court in case of Mahesh Pandurang Naik V/s. The State of Maharashtra and Anr.5 and Gopal Chandrakant Angchekar V/s. The State of Maharashtra and Anr.6 in support of his contentions.
9. The learned APP has opposed the prayer by filing the affidavit of Ms Manisha Sanjay Zende, Assistant Commissioner of Police, Anti-Corruption Bureau, Worli, Mumbai. The learned APP, Ms Deshmukh has opposed the prayer of the petitioner mostly on the merits of the matter. However, since the issue before us is very limited, whether the arrest of the petitioner is rendered illegal, since the grounds of arrest have not been communicated to him, therefore without adverting to the merits of the matter, we have considered the averments in the affidavit, only to the extent of the grounds raised by the petitioner.
In reply to the ground about non-communication of grounds of arrest, the Assistant Commissioner of Police, ACB, Mumbai has stated that, in response to the notice issued to the petitioner under Section 41(A)(i) he had caused his appearance in the inquiry before the Competent Authority on various occasions, therefore it is very much within his knowledge, on what grounds he has been arrested, as the inquiry was already undertaken by the authority in that regard.
10. It is also contended by the learned APP that, during the inquiry the statements of the petitioner are recorded, therefore it is very much apparent that he knows the grounds of his arrest, therefore it is not necessary to furnish him separate grounds at the time of his arrest i.e. on 25.06.2024. Apart from that it is also contended that, while arresting the petitioner the arrest form was filled in, and at the time of arrest, grounds of arrest and legal rights of the petitioner were also explained to him. The arrest form bears the signature and left hand thumb impression of the petitioner. The arrest form was duly filled in by the Competent Authority in presence of two panchas, and which bears the signature of the panch witness, therefore according to the learned APP, the requirement of communicating the grounds of arrest has been duly discharged by the concerned authority.
The Respondent – Authority has raised one more ground taking exception to the reliance placed by the petitioner on Section 47 of the BNSS, 2023. According to the respondent, the petitioner was arrested on 25.06.2024, and during his arrest the BNSS has not come into effect. The BNSS came into force from 01.07.2024, therefore there was no necessity for the police authorities to comply with Section 47 of the BNSS.
The learned APP has also drawn our attention to the fact that the Bail Applications filed by the petitioner have been rejected by the Special Judge twice by order dated 24.07.2024 and 14.08.2024 respectively. Therefore according to the learned APP, considering that the Bail Application of the petitioner has been rejected twice, he does not deserve to be released on the ground of violation of his fundamental right. The respondents have therefore prayed that the petitioner does not deserve to be released, in view of the huge amount which has been wrongfully refunded to the companies, which are shown to be on paper by preparing forged documents.
11. We have heard learned counsel for the petitioner as well as the learned APP for the State, and perused the papers from the FIR as well as the remand application. We do not find that the petitioner has been served with grounds of arrest communicating him full particulars of the offence for which he is arrested and the reasons required for his custody. During the hearing of this Petition when we have enquired with learned APP, whether the procedure prescribed under Section 50 of the Cr.P.C., and the Article 22 of the Constitution of India has been adhered to while effecting the arrest of the petitioner, the learned APP was not in a position to give any satisfactory response to our query.
From the order passed on remand application it is evident that, no such grounds of arrest were communicated to the petitioner. The Additional Sessions Judge, while passing the order on remand application has merely reproduced the contents of FIR and the allegations made by the Investigating Officer and finally has recorded that, considering the magnanimity of the offence and the nature of investigation required, the custodial interrogation of the accused is necessary, therefore PCR was granted till 01.07.2024. The Sessions Judge has also referred to the submission of the Investigating Officer that, the arrest panchanama is carried out by her and information of arrest is given to the sister of accused on cellphone. Apart from this, there is nothing on record to show that grounds of arrest have been communicated to the petitioner.
Though the respondent has objected to the applicability of Section 47 of BNSS, on the ground that, when the petitioner was arrested the enactment had not come into effect. However fact remains that, Section 50 of the Code of Criminal Procedure, which is a pari materia provision, was very much in force, which also requires the full particulars of the offence to be communicated to an accused for which he is arrested. Even otherwise fact remains that, the fundamental right of the petitioner guaranteed under Article 22(1) of the Constitution of India has also been violated. Hence the objection raised by the respondent does not deserve consideration.
12. The law in this regard is now crystalised in the recent judgment in case of Prabir Purkayastha (supra). Taking into consideration all the earlier judicial pronouncements about the right of accused to be communicated about grounds of arrest in writing, the Hon’ble Supreme Court has made the following observations, which reads thus:
“20. Resultantly, there is no doubt in the mind of the Court that any person arrested for allegation of commission of offences under the provisions of UAPA or for that matter any other offences 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 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. Any other interpretation would tantamount to diluting the sanctity of the fundamental right guaranteed under Article 22(1) of the Constitution of India.
21. The Right to Life and Personal Liberty is the most sacrosanct fundamental right guaranteed under Articles 20, 21 and 22 of the Constitution of India. Any attempt to encroach upon this fundamental right has been frowned upon by this Court in a catena of decisions. In this regard, we may refer to following observations made by this Court in the case of Roy V.D. vs. State of Kerala, (2000) 8 SCC 590:
“7. The life and liberty of an individual is so sacrosanct that it cannot be allowed to be interfered with except under the authority of law. It is a principle which has been recognised and applied in all civilised countries. In our Constitution Article 21 guarantees protection of life and personal liberty not only to citizens of India but also to aliens.”
Thus, any attempt to violate such fundamental right, guaranteed by Articles, 20, 21 and 22 of the Constitution of India, would have to be dealt with strictly.
22. The right to be informed about the grounds of arrest flows from Article 22(1) of the Constitution of India and any infringement of this fundamental right would vitiate the process of arrest and remand. Mere fact that a charge sheet has been filed in the matter, would not validate the illegality and the unconstitutionality committed at the time of arresting the accused and the grant of initial police custody remand to the accused.
23………..
24………..
25. A Constitution Bench of this Court examined in detail the scheme of Article 22(5) of the Constitution of India in the case of Harikisan vs. State of Maharashtra and Others, 1962 SCC Online SC 117 and held that the communication of the grounds of detention to the detenue in writing and in a language which he understands is imperative and essential to provide an opportunity to detenue of making an effective representation against the detention and in case, such communication is not made, the order of detention would stand vitiated as the guarantee under Article 22(5) of the Constitution was violated. The relevant Para is extracted herein-below:
“7………clause (5) of Article 22 requires that the grounds of his detention should be made available to the detenue as soon as may be, and that the earliest opportunity of making a representation against the Order should also be afforded to him.
In view of the judicial pronouncements of the Hon’ble Apex Court, which is now the law of land and has a binding effect, it is required to be scrupulously followed. In spite of the judicial pronouncements in this regard, the same has not been followed in the present case. Relying on the observations of the Hon’ble Apex Court in case of Prabir Purkayastha, this Court has also taken a similar view in case of Gopal Chandrakant Angchekar (supra) and Manulla M. Kanchwala V/s. The State of Maharashtra,7 and reiterated the law laid down by the Hon’ble Apex Court with regard to necessity of ‘grounds of arrest’ to be communicated to an accused at the earliest on his arrest.
We have gone through the FIR and the remand order, which have been placed on record. The remand order does not in any way reflect that the petitioner has been communicated the grounds of arrest. Since the grounds of arrest were not furnished to the petitioner at the time of his arrest and before hearing of his remand application, the arrest of the petitioner is rendered illegal and nullity in the eyes of law. Since his arrest itself is rendered illegal the subsequent remand orders are also null and void. Therefore, we have no hesitation in holding the arrest of the petitioner is illegal, accordingly, we direct to release him forthwith. Hence, Rule is made absolute in the following terms:
:ORDER:
(i) The Writ Petition is allowed.
(ii) It is declared that, the arrest of the Petitioner in FIR No.7 of 2024 dated 28.02.2024 is illegal and in gross violation of the fundamental rights of the Petitioner guaranteed under Article 21 and 22 of the Constitution of India.
(iii) The remand order dated 25.06.2024 and subsequent remand orders passed by the learned Additional Session Judge, 46th Court, Mumbai, are declared to be null and void, as the same being in violation of constitutional mandate as well as not in compliance of Section 50 of the Cr.P.C.
(iv) Considering that the charge-sheet has already been filed, upon setting aside the Remand Orders, the Petitioner is entitled to be released from the custody on furnishing bail bonds to the satisfaction of the Trial Court.
(v) The Writ Petition stands disposed off.
Notes:
1 2020 6 Supreme 93 ; 2020 0 Supreme (SC) 678 ↩
2 1980 0 Supreme (SC) 521 ↩
3 2023 0 Supreme (SC) 1000 ↩
4 2024 0 Supreme (SC) 463 ↩
5 Cri.Writ Petition (St).13835 of 2024 (Decided On:18.07.2024) ↩
6 Cri.Writ Petition (St).14935 of 2024 (Decided On:02.08.2024) ↩
7 Cr.Writ Petition No.3276 of 2024 (Decided On:14.08.2024) ↩
