Nisha Nagesh Gaikwad & Ors. Vs State of Maharashtra (Bombay High Court)
Summary: The Bombay High Court, comprising Justice Bharati Dangre and Justice Manjusha Deshpande, considered a writ petition filed by Nisha Nagesh Gaikwad, Sonali Mahendra Mahalle, Darshna Nagesh Gaikwad and Deepa Rohit Prajapati, challenging their arrests in connection with Crime No. 120 of 2024 registered at Kashigaon Police Station, Mira-Bhayander, on 23 May 2024. The case involved allegations under Sections 364-A, 389, 384, 347, 324, 504, 506 and 120-B of the Indian Penal Code. The petitioners contended that their arrests violated Article 22(1) of the Constitution of India and Section 50 of the Code of Criminal Procedure, 1973, because the grounds of arrest had not been communicated in writing. They relied on the Supreme Court decisions in Pankaj Bansal Vs Union of India and Prabir Purkayastha Vs State (NCT of Delhi), which emphasised the importance of informing an arrested person of the grounds necessitating arrest. The petitioners sought a declaration that their arrests were unlawful and could not sustain the consequential remand orders.
The State opposed the petition through an affidavit filed by the investigating officer. According to the prosecution, the investigation revealed the involvement of the accused persons in an alleged kidnapping-for-ransom case. One accused reportedly appeared before the police after being contacted by telephone, and information obtained during the investigation led the police to summon the other accused persons. The investigating officer considered arrest necessary in view of the seriousness of the alleged offences, particularly Section 364-A IPC, which carries severe punishment, and Section 389 IPC. The State asserted that the petitioners had been informed verbally of the grounds of arrest, that arrest panchnamas had been prepared in the presence of witnesses and that individual notices under Section 50 CrPC had been issued. The High Court examined these notices to determine whether they contained the information required by law.
On examining the notices, the Court found that they merely stated that an offence had been registered and that the petitioners’ participation in the crime had been inferred during investigation. Although the investigating officer’s affidavit subsequently explained that the case involved kidnapping for ransom and other serious allegations, these factual particulars had not been communicated through the Section 50 notices. The Court distinguished between general reasons for effecting arrest and the specific grounds that justify depriving an individual of liberty. It observed that the latter must communicate the relevant factual material sufficiently to enable the accused to understand the accusation, consult legal counsel, challenge police custody remand and seek bail. Referring to the Supreme Court’s decisions in Pankaj Bansal and Prabir Purkayastha, including paragraph 20 of Prabir Purkayastha, the Bench held that a perfunctory notice recording only the investigating officer’s conclusion regarding involvement in an offence did not fulfil the constitutional and statutory purpose of communication of grounds of arrest.
The High Court concluded that the arrest notices failed to communicate the justification underlying the police decision to arrest the petitioners. The subsequent disclosure of additional details in the investigating officer’s affidavit could not establish compliance with Section 50 CrPC at the relevant stage. Accordingly, the Court held that the arrests violated Article 22(1) of the Constitution and Section 50 CrPC. It declared the remand order dated 24 May 2024 and subsequent remand orders passed by the Judicial Magistrate First Class, Thane, null and void. The petitioners were directed to be released forthwith upon executing bail bonds to the satisfaction of the trial judge, and the writ petition was made absolute. The judgment concerns the legality of the arrest and remand procedure and does not determine the petitioners’ guilt or innocence in the underlying criminal case.
Cases Discussed
1. Pankaj Bansal Vs Union of India & Ors. (Supreme Court); Criminal Appeal Nos. 3051–3052 of 2023; 03/10/2023; 2023 SCC OnLine SC 1244; (2024) 7 SCC 576 — Relied upon for the distinction between the reasons for arrest and the specific grounds of arrest, and the importance of furnishing written grounds to safeguard personal liberty. Related TaxGuru discussion.
2. Prabir Purkayastha Vs State (NCT of Delhi) (Supreme Court); Criminal Appeal No. 2577 of 2024; 15/05/2024; 2024 SCC OnLine SC 934; 2024 INSC 414; (2024) 8 SCC 254 — Relied upon for the mandatory communication of written grounds of arrest and the right of an arrested person to defend against custodial remand. Paragraph 20 of this judgment was expressly reproduced by the High Court. Related TaxGuru discussion.
FULL TEXT OF THE ORIGINAL JUDGMENT/ORDER
1. In yet another petition, the petitioner has alleged non-compliance of Section 50 of the Code of Criminal Procedure, 1973 and has alleged that while effecting his arrest on 23.05.2024 in connection with C.R. No. 120 of 2024, invoking Sections 364-A, 389, 384, 384, 347, 324, 504, 506 r/w 120-B of the Indian Penal Code at 17:58 hours, the mandate is not followed.
It is the specifc ground raised in the Petition that, while his arrest was being effected, the grounds of arrest are not communicated to him in writing, and in the wake of the authoritative pronouncements of the Apex Court in the case of Pankaj Bansal V/s Union of India and Ors.1 as well as the decision in case of Prabir Purkayastha V/s State (NCT of Delhi)2, the arrest deserve to be clamped down as illegitimate and not sustainable in law.
2. We have heard learned counsel, Mr. Ayush Pasbola, for the Petitioners and learned APP, Mr. Gavand for the State and perused the accompaniments to the Petition, which include the FIR lodged with Kashigaon Police Station, Mira-Bhayander, on 23.05.2024 and the remand report.
Opposing the alleged violation of the fundamental right of the petitioners, the Police Sub-Inspector attached to Kashigaon Police Station, Mira-Bhayander has fled his affdavit, where he has narrated the background, in which the offence was registered by invoking the relevant provisions of the IPC.
It is categorically deposed by the Investigating Offcer that, when the investigation commenced and search of the accused was taken, a phone-call was made to Accused No. 2, when she admitted her mistake and reported to the police station on 23.05.2024, and from her, the involvement of the other accused persons surfaced before the Investigating Offcer, and phone-calls were made to the other accused which included the petitioners and they reported to the police station.
Deriving a conclusion that there was suffcient evidence for establishing the complicity of the accused in the crime and, particularly, when the offence under Section 364-A of the IPC is punishable with death or imprisonment for life, and the offence under Section 389 of the IPC is punishable with imprisonment, which may extend for 10 years, the Investigating Offcer deemed it appropriate to arrest the petitioners.
3. The Investigating Offcer has categorically deposed in para 6 of the affdavit that, at the time of arrest of the petitioners, the arrest panchanama was drawn in presence of panchas and they were informed of their involvement in the offence and the grounds on which they were arrested, and this was mentioned in the arrest panchanama. It is also pleaded that, while arresting the accused, they were informed verbally about the grounds on which they were arrested, the ground being that suffcient material exist, which point out the involvement of the accused in the crime, as the accused had committed kidnapping for ransom.
Alongwith the affdavit, an intimation under Section 50 of the Cr.P.C. is also annexed, being issued to each of the individual petitioner.
4. We have perused the said intimation, which is purportedly captioned as “notice under Section 50 of the Cr.P.C”.
The API attached to Kashigaon Police Station, vide the said notice, has disclosed to the accused the petitioners that an offence has been registered against them in Kashigaon Police Station on 23.05.2024, in form of C.R. No. 120 of 2024 under the relevant provisions of the IPC, and during its investigation, the participation of the accused is inferred and, therefore, the arrest is effected by revealing the information about the arrest in presence of a friend Aatish Shetty and the accused was also appraised of his legal rights.
The notice further indicated that the accused was to be presented to the Court of Judicial Magistrate First Class, Thane on 24.05.2024.
5. Learned counsel, Mr. Pasbola, however raise a question, whether the above communication is in compliance of Section 50 of the Cr.P.C., and we have deliberated upon the said issue.
Section 50 of the Cr.P.C. specifcally reads thus:
“50. Person arrested to be informed of grounds of arrest and of right to bail.-(1)Every police offcer 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 offcer 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.”
6. Clause (1) of Article 22 of the Constitution, which offer protection against arrest and detention to a person, contemplate that, no person who is arrested shall be detained in custody without being informed, as soon as may be, of the grounds for such arrest nor shall he be denied the right to consult, and to be defended by, a legal practitioner of his choice.
Clause (1) of Article 22 therefore contemplate detention in custody, upon arrest, coupled with the communication of the grounds of arrest, as soon as may be.
Recently, the Apex Court in case of Pankaj Bansal (supra) to be followed by Prabir Purkayastha (supra) has interpreted the said provision to convey that, while arresting a person, he shall be communicated with the “grounds of arrest”, which will enable him to setup a stand while he is produced for remand, the “grounds of arrest” being distinct from the “reasons for arrest”, which are contemplated under Section 41(1)(b)(ii) of the Cr.P.C.
7. The law being well settled to that effect, what was expected by the Apex Court is communication of the grounds of arrest in writing so as to afford an opportunity to the accused to contest the claim for police custody remand, when he is produced before the Magistrate, and Section 50 of the Cr.P.C. necessarily contemplate communication of the full particulars of the offence for which a person is arrested or other grounds for such arrest.
8. Bare perusal of the notice issued to the petitioners, purportedly under Section 50 of the Cr.P.C. however appear to us to be a perfunctory exercise, as what is only indicated as grounds of the arrest is that, from the investigation carried out, he has inferred their participation in the subject crime.
Though in the affdavit fled by the Investigating Offcer, he has categorically deposed, what was the material which led to this conclusion i.e. the accused have committed kidnapping for ransom, and since the act is punishable with imprisonment for life, for putting a person in fear of accusation of committing extortion and these offences being non-bailable offences, it is necessary to investigate the reason and motive for committing the offence, and further investigate about the involvement of other accused in the crime.
At this stage, we can only express that, if this could have been disclosed in the notice under Section 50 of the Cr.P.C., probably the petitioners had no case, but having failed to do so and only stating that the Investigating Offcer has concluded the participation of the petitioners in the subject C.R., without refecting the justifcation for the conclusion, which could have amounted to the “grounds of arrest”, we fnd the exercise undertaken by the respondents of issuing a notice under Section 50 to be a futile effort, as it has failed to achieve the object, which was intended by their Lordships in their judgments in Pankaj Bansal and Prabir Purkayastha (Supra), and in particular in para 20 of the judgment of Prabir Purkayastha, with the following observation is made:
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 offence(s) 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.
9. In the wake of the above, the Petition must succeed as we fnd that the arrest of the petitioners is in clear violation of the constitutional mandate envisaged under Article 22(1) of the Constitution of India, as well as in contrast of Section 50 of the Cr.P.C.
Subsequent to the said declaration, the remand order dated 24.05.2024 and the subsequent remand orders by the J.M.F.C., Thane, are declared as null and void. Holding that the arrest of the petitioners is illegal, we direct their release forthwith on executing bail bond to the satisfaction of the trial Judge.
The Writ Petition is made absolute in the aforesaid terms.
1 2023 SCC OnLine SC 1244 ↩
2 2024 SCC OnLine SC 934 ↩
