It is beyond a straw of doubt most definitely in the fitness of things that while taking the most commendable, courageous and committed stand, the Single Judge Bench of Delhi High Court comprising of Hon’ble Mr Justice Dinesh Kumar Sharma in a most learned, laudable, landmark, logical and latest judgment titled Pranav Kuckreja (In Police Custody) vs State (NCT of Delhi) in W.P.(CRL) 3476/2024, CRL.M.A. 33389/2024 and so also CRL.M.(BAIL) 1825/2024 that was pronounced as recently as on 18.11.2024 has most commendably directed the Commissioner of Police to add a column in arrest memos for writing the grounds for arrests. It is noteworthy that the Bench minced just no words to hold that, “The requirement to convey these details is not a mere formality but a fundamental safeguard to uphold the individual’s right to liberty under the Constitution of India.” Absolutely right!
It must be borne in mind that the Bench passed the pragmatic order on a plea by a man who had challenged his arrest on the ground that he was not informed of the reasons for his arrest. We need to note that the Bench was apprised that this violated Section 50 pertaining to persons arrested without a warrant must be informed of grounds for arrest of the Criminal Procedure Code (CrPC). It must be noted that the Court examined the arrest memo of this case and observed that the current format for arrest memos does not have a column to record the grounds of arrest.
While striking the right chord, the Bench then further held that the man’s arrest in the present case was illegal since the arrest memo had failed to communicate the grounds for his arrest. The Bench rightly ordered ruling explicitly that, “This court considers that a revised arrest memo form or some annexures are to be added to ensure effective compliance with Section 50 Cr.P.C. and the corresponding Section 47 of BNSS, 2023. The Commissioner of Delhi Police may ensure that necessary actions are taken for the said modification.” It also must be noted that the Delhi High Court’s laudable direction came while ordering for the release of a man who was arrested in the case registered at Tughlak Road on November 4, 2024 for alleged rape and other offences on the complaint by a woman, who he was dating since July 2019. It was clarified by the Bench that the order for release of petitioner was passed on “the technical non-compliance of Section 50 CrPC and that it has not gone into the merits of the case. Very rightly so!
At the very outset, this brief, brilliant, bold and balanced judgment authored by Single Judge Bench comprising of Hon’ble Mr Justice Dinesh Kumar Sharma sets the ball in motion by first and foremost putting forth in para 1 that, “The present petition has been filed seeking declaration of the arrest of the petitioner on 04.11.2024 and all consequential proceedings thereon in the case arising out of FIR No.4/2023 dated 12.01.2023 registered under Sections 498A/406/328/376/109/34 IPC at PS Tughlak Road as illegal, arbitrary and void.”
To put things in perspective, the Bench envisages in para 2 while elaborating on facts of case observing that, “The factual matrix, briefly stated, is that the FIR in the present case was registered on 12.01.2023. The complainant alleged that she began dating the petitioner in July 2019, during which they purportedly entered into a secret marriage in Bangalore and subsequently cohabited. Over time, differences arose between the two, and the complainant alleged various instances of abuse and misconduct. According to her statement, it has been alleged that the petitioner administered drinks laced with intoxicants, rendering her unconscious. She alleged that during these instances, the petitioner’s friends sexually assaulted her without her consent. The complainant has further leveled serious accusations of mental, physical, and sexual abuse against the petitioner and his parents, implicating them in acts of coercion and complicity. The detailed facts are not elaborated here as the petitioner has approached this Court primarily to challenge the legality of his arrest.”
While referring to Section 50 of CrPC, the Bench points out in para 13 that, “The bare perusal of it makes it clear that the law mandates the police officer to inform the arrested individual of the full particulars of the offence or the grounds for arrest. The requirement to convey these details is not a mere formality but a fundamental safeguard to uphold the individual’s right to liberty under the Constitution of India. The Courts have time and again deprecated the practice of filling up columns in proforma indicating the formal “reasons” for which the accused was being arrested. It is also pertinent to note that Section 50 Cr. P.C. uses the word “forthwith.” which implies that “grounds for such arrest” have to be communicated at the time of the arrest. This requirement is designed to ensure that the arrested individual is promptly made aware of the reasons for their detention, thereby safeguarding their legal rights.”
Do note, the Bench notes in para 14 that, “There are numerous instances where arrested persons alleged serious violation of procedures enshrined in the Cr. P.C. (new BNSS, 2023) and the Courts have to carefully examine the same. It is relevant to note that the constitutional safeguards are incorporated in the procedural law as procedural safeguards and the Court have to be very careful and must keep in mind the constitutional frame work. It is pertinent to note that in the criminal trial, an individual is pitted against the might of the State and thus the Court have to interpret such provisions in the perspective of personal liberty enshrined in part-III of the Constitution.”
As it turned out, the Bench enunciates in para 15 that, “Before proceeding further, it is also necessary to refer that the jurisprudence that has been evolved by Indian Constitutional Courts that fundamental rights of any person are not violated and remain fully protected. The Apex Court has consistently emphasized that arrest should only be resorted to when absolutely necessary as the personal liberty is paramount which should not be curtailed on whimsical grounds and mechanically.”
While citing the relevant case law, the Bench states in para 16 that, “In Joginder Kumar v. State of U.P. and Ors (1994) 4 SCC 260, the Supreme Court while dealing with this issue inter alia held as under;
17. In England, the police powers of arrest, detention and interrogation have been streamlined by the ‘Police and Criminal Evidence Act,’ 1984 based on the report of Sir Cyril Philips Committee (Report of a Royal Commission on Criminal Procedure, Command-papers 8092 1981 1).
18. It is worth quoting the following passage from Police Powers and Accountability by John L. Lambert, p. 93:
“More recently, the Royal Commission on Criminal Procedure recognised that ‘there is a critically important relationship between the police and the public in the detection and investigation of crime’ and suggested that public confidence in police powers required that these conform to three principal standards: fairness, openness and workability.” (emphasis supplied)
19. The Royal Commission suggested restrictions on the power of arrest on the basis of the “necessity of (sic) principle”. The two main objectives of this principle are that police can exercise powers only in those cases in which it was genuinely necessary to enable them to execute their duty to prevent the commission of offences, to investigate crime. The Royal Commission was of the view that such restrictions would diminish the use of arrest and produce more uniform use of powers. The Royal Commission Report on Criminal Procedure Sir Cyril Philips at p. 45 said:
“… we recommend that detention upon arrest for an offence should continue only on one or more of the following criteria: (a) the person’s unwillingness to identify himself so that a summons may be served upon him;
(b) the need to prevent the continuation or repetition of that offence;
(c) the need to protect the arrested person himself or other persons or property;
(d) the need to secure or preserve evidence of or relating to that offence or to obtain such evidence from the suspect by questioning him; and
(e) the likelihood of the person failing to appear at court to answer any charge made against him.”
The Royal Commission in the above said report at p. 46 also suggested:
“To help to reduce the use of arrest we would also propose the introduction here of a scheme that is used in Ontario enabling a police officer to issue what is called an appearance notice. That procedure can be used to obtain attendance at the police station without resorting to arrest provided a power to arrest exists, for example to be fingerprinted or to participate in an identification parade. It could also be extended to attendance for interview at a time convenient both to the suspect and to the police officer investigating the case……
20. In India, Third Report of the National Police Commission at p. 32 also suggested:
“An arrest during the investigation of a cognizable case may be considered justified in one or other of the following circumstances:
(i) The case involves a grave offence like murder, dacoity, robbery, rape etc., and it is necessary to arrest the accused and bring his movements under restraint to infuse confidence among the terror stricken victims.
(ii) The accused is likely to abscond and evade the processes of law.
(iii) The accused is given to violent behavior and is likely to commit further offences unless his movements are brought under restraint.
(iv) The accused is a habitual offender and unless kept in custody he is likely to commit similar offences again.
It would be desirable to insist through departmental instructions that a police officer making an arrest should also record in the case diary the reasons for making the arrest, thereby clarifying his conformity to the specified guidelines……”
The above guidelines are merely the incidents of personal liberty guaranteed under the Constitution of India. No arrest can be made because it is lawful for the police officer to do so. The existence of the power to arrest is one thing. The justification for the exercise of it is quite another. The police officer must be able to justify the arrest apart from his power to do so. Arrest and detention in police lock-up of a person can cause incalculable harm to the reputation and self-esteem of a person. No arrest can be made in a routine manner on a mere allegation of commission of an offence made against a person. It would be prudent for a police officer in the interest of protection of the constitutional rights of a citizen and perhaps in his own interest that no arrest should be made without a reasonable satisfaction reached after some investigation as to the genuineness and bona fides of a complaint and a reasonable belief both as to the person’s complicity and even so as to the need to effect arrest. Denying a person of his liberty is a serious matter. The recommendations of the Police Commission merely reflect the constitutional concomitants of the fundamental right to personal liberty and freedom. A person is not liable to arrest merely on the suspicion of complicity in an offence. There must be some reasonable justification in the opinion of the officer effecting the arrest that such arrest is necessary and justified. Except in heinous offences, an arrest must be avoided if a police officer issues notice to person to attend the Station House and not to leave the Station without permission would do.
21. Then, there is the right to have someone informed. That right of the arrested person, upon request, to have someone informed and to consult privately with a lawyer was recognised by Section 56(1) of the Police and Criminal Evidence Act, 1984 in England (Civil Actions Against the Police Richard Clayton and Hugh Tomlinson; p. 313). That section provides:
“[W]here a person has been arrested and is being held in custody in a police station or other premises, he shall be entitled, if he so requests, to have one friend or relative or other person who is known to him or who is likely to take an interest in his welfare told, as soon as is practicable except to the extent that delay is permitted by this section, that he has been arrested and is being detained there.”
These rights are inherent in Articles 21 and 22(1) of the Constitution and require to be recognised and scrupulously protected. For effective enforcement of these fundamental rights, we issue the following requirements:
1. An arrested person being held in custody is entitled, if he so requests to have one friend, relative or other person who is known to him or likely to take an interest in his welfare told as far as is practicable that he has been arrested and where he is being detained.
2. The police officer shall inform the arrested person when he is brought to the police station of this right.
3. An entry shall be required to be made in the diary as to who was informed of the arrest. These protections from power must be held to flow from Articles 21 and 22(1) and enforced strictly.”
While citing a recent and relevant case law, the Bench observes in para 17 that, “Furthermore, in Siddharth v. State of Uttar Pradesh, 2022 1 SCC 676, it was inter alia held as under;
“10. We may note that personal liberty is an important aspect of our constitutional mandate. The occasion to arrest an accused during investigation arises when custodial investigation becomes necessary or it is a heinous crime or where there is a possibility of influencing the witnesses or accused may abscond. Merely because an arrest can be made because it is lawful does not mandate that arrest must be made. A distinction must be made between the existence of the power to arrest and the justification for exercise of it. If arrest is made routine, it can cause incalculable harm to the reputation and self-esteem of a person. If the Investigating Officer has no reason to believe that the accused will abscond or disobey summons and has, in fact, throughout cooperated with the investigation we fail to appreciate why there should be a compulsion on the officer to arrest the accused.”
Be it noted, the Bench notes in para 18 that, “Bare perusal of the judgments of Joginder Kumar (supra) and Siddharth (supra) makes it clear that the Indian Supreme Court has always been very sensitive and conscious about the individual’s rights. The jurisprudence which is being evolved is that the police may not arrest a person only because it’s permissible, the arrest should be justified also and must have grounds of arrest communicated forthwith.”
While citing a very recent, relevant and remarkable case law, the Bench then underscores in para 19 stating that, “Recently, in Prabir Purkayastha v. State (NCT of Delhi) (2024) 8 SCC 254, the Supreme Court reaffirmed that the grounds of arrest must be communicated in writing to the accused expeditiously. The practice of filling generic reasons in proforma arrest memos was strongly deprecated.”
Most significantly and so also most commendably, the Bench then mandates in para 20 propounding that, “It is a settled proposition that the absence of specific grounds of arrest violates statutory and constitutional rights under Section 50 of Cr.P.C. and Article 22(1) of the Constitution. Any person 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. Reliance may be placed upon Pankaj Bansal v. Union of India (2023 SCC OnLine 1244).”
It is worth noting that the Bench notes in para 21 that, “In Prabir Purkayastha (supra), it was further inter alia held as under;
“….
30. Furthermore, the provisions of Article 22(1) have already been interpreted by this Court in Pankaj Bansal laying down beyond the pale of doubt that the grounds of arrest must be communicated in writing to the person arrested of an offence at the earliest. Hence, the fervent plea of the learned ASG that there was no requirement under law to communicate the grounds of arrest in writing to the appellant-accused is noted to be rejected.
…..
37. The interpretation given by the learned Single Judge that the grounds of arrest were conveyed to the accused in writing vide the arrest memo is unacceptable on the face of the record because the arrest memo does not indicate the grounds of arrest being incorporated in the said document. Column 9 of the arrest memo (Annexure P-7) which is being reproduced hereinbelow simply sets out the “reasons for arrest” which are formal in nature and can be generally attributed to any person arrested on accusation of an offence whereas the “grounds of arrest” would be personal in nature and specific to the person arrested.
“9. Reason for arrest
(a) Prevent the accused person from committing any further offence.
(b) For proper investigation of the offence.
(c) To prevent the accused person from causing the evidence of the offence to disappear or tampering with such evidence in any manner.
(d) To prevent such person from making any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the court or to the police officer.
(e) As unless such person is arrested, his presence in the court whenever required cannot be ensured.”
38. The remand order dated 4-10-2023 (reproduced supra) records that the copy of the remand application had been sent to the learned advocate engaged by the appellant-accused through WhatsApp. A bare perusal of the remand order is enough to satisfy us that these two lines were subsequently inserted; moreover, these two lines give a clear indication of subsequent insertion. It is quite possible that the learned Remand Judge may have heard the learned counsel for the appellant after signing the remand order and thus, these lines were inserted later without intending any harm or mal-intention but the fact remains that the order of remand had already been passed at 6.00 a.m. and hence, the subsequent opportunity of hearing, if any, provided to the counsel was nothing but an exercise in futility.
…..
43. We do not feel persuaded to examine these aspects at this stage because the same would require entering into the merits of the case. This would be within the domain of the court examining the matter after the filing of the chargesheet. The core issue in this appeal is regarding the illegality of the process whereby the appellant was arrested and remanded to police custody which does not require examining the merits of the case.
……
45. We are of the firm opinion that once this Court has interpreted the provisions of the statute in context to the constitutional scheme and has laid down that the grounds of arrest have to be conveyed to the accused in writing expeditiously, the said ratio becomes the law of the land binding on all the courts in the country by virtue of Article 141 of the Constitution of India.
46. Now, coming to the aspect as to whether the grounds of arrest were actually conveyed to the appellant in writing before he was remanded to the custody of the investigating officer.
47. We have carefully perused the arrest memo (Annexure P-7) and find that the same nowhere conveys the grounds on which the accused was being arrested. The arrest memo is simply a pro forma indicating the formal “reasons” for which the accused was being arrested.
48. It may be reiterated at the cost of repetition that there is a significant difference in the phrase “reasons for arrest” and “grounds of arrest”. The “reasons for arrest” as indicated in the arrest memo are purely formal parameters viz. to prevent the accused person from committing any further offence; for proper investigation of the offence; to prevent the accused person from causing the evidence of the offence to disappear or tampering with such evidence in any manner; to prevent the arrested person for making inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the court or to the investigating officer. These reasons would commonly apply to any person arrested on charge of a crime whereas the “grounds of arrest” would be required to contain all such details in hand of the investigating officer which necessitated the arrest of the accused. Simultaneously, the grounds of arrest informed in writing must convey to the arrested accused all basic facts on which he was being arrested so as to provide him an opportunity of defending himself against custodial remand and to seek bail. Thus, the “grounds of arrest” would invariably be personal to the accused and cannot be equated with the “reasons of arrest” which are general in nature.”
While continuing in a similar vein, the Bench then while citing yet another recent and relevant case law mentions in para 22 that, “This judgment was followed by the Bombay High Court in Sachin Mahipati Nimbalkar v. The State of Maharashtra, in Writ Petition (stamp) No.17029/2024 wherein it was inter alia held as under;
“7. It is the requirement of Section 50 of the Cr.P.C. that an accused, who is being arrested without warrant to be forthwith communicated about the full particulars of the offence for which he is arrested or the other grounds for such arrest. The petitioner has alleged non-compliance of Section 50 of the Cr.P.C. as also Article 22(1) of the Constitution of India, by relying upon law laid down by the Apex Court in this regard. Therefore, it is a specific contention of the petitioner that, there is a violation of his constitutional as well as statutory rights.
8. After considering the submissions as well as the documents produced on record, we do not find grounds of arrest being communicated to the petitioner as contemplated by Section 50 of the Cr.P.C. and explained by this Court as well as the Hon’ble Apex Court in its various judicial pronouncements. We are satisfied that there is a flagrant violation of Section 50 of the Cr, PC. As well as Article 22 (1) the constitution of India, and since the grounds of arrest are not communicated to the petitioner, making his arrest illegal.
Resultantly, the Writ Petition is allowed and we declare that the arrest of the petitioner in relation to FIR No. 1191 of 2023 dated 31.10.2023 is illegal and in gross violation of fundamental rights of the petitioner and the consequential remand order dated 01.11.2023 passed by the J.M.F.C., Karad as well as the subsequent remand orders are null and void.
In view of the declaration, the petitioner deserves to be released forthwith from the custody on furnishing bail bond to the satisfaction of the trial Court. The Writ Petition is disposed off in the above terms.
We must clarify that the observations made in the present Writ Petition would not affect the merits of the case, but are restricted to the claim raised by the petitioner about the illegality of the arrest.””
Do further note, the Bench notes in para 24 that, “It is no longer res integra that grounds of arrest must be communicated in writing to the arrested individual expeditiously. Providing the grounds of arrest to the person being arrested is of utmost sanctity and significance. This information serves as the fundamental basis for the arrested individual to seek legal advice, challenge the remand, and apply for bail.”
It merits noting that the Bench then notes in para 25 that, “In the context of present case, it is pertinent to mention that Section 50 Cr. P.C. uses the word “forthwith”. The dictionary meaning of the word “forthwith” as defined in the Shorter Oxford English dictionary on historical principles, fifth edition, volume – 01 A-M is (1) Along with, at the same time; and (2) Immediately, at one, without delay.”
Adding more to it, the Bench then lays bare in para 26 stating that, “The term ‘forthwith’ in legal parlance also generally implies an action that must be taken without unreasonable delay. It suggests promptness and urgency. The expression ‘forthwith’ has also been defined in Black’s Law Dictionary, 10th Edition as “forthwith, adv. (14c) 1. Immediately; without delay. 2. Directly; promptly; within a reasonable time under the circumstances; with all convenient dispatch”. This implies that the “grounds for such arrest” have to be communicated at the earliest. Reading this otherwise may not justify the requirement of Section 50 Cr. PC.”
Strictly speaking, the Bench mandates in para 27 postulating that, “The Courts, while examining the implementation of procedural safeguards emanating out of the constitutional rights, have to give strict interpretation. Thus, there is no doubt in the mind of this Court that the “grounds of arrest” in compliance of Section 50 Cr. P.C. has to be supplied “forthwith” as discussed above.”
Most forthrightly, the Bench while taking potshots minces just no words to hold in para 28 that, “In the present case, FIR No. 4/2023, dated 12.01.2023, registered under Sections 498A/406/328/376/109/34 IPC at P.S. Tuglak Road, the arrest memo fails to communicate the grounds for arrest in relation to the petitioner. Learned Additional Standing counsel has argued that the grounds of arrest were duly mentioned in the remand application dated 05.11.2024. However, this court has gone through the remand application dated 05.11.2024 and though it details the complete facts and investigation, it does not specify the grounds of arrest at the time the arrest was effected. This omission constitutes a direct violation of Section 50 of Cr.P.C., as elaborated in Prabir Purkayastha (Supra).”
What’s more, the Bench notes in para 29 that, “It is also relevant to note that in Inder Pal Singh Gaba (supra), the petitioner was arrested on 25.04.2024 and his application for remand was moved on 25.04.2024 itself as recorded in para -25 of the order in W.P.(CRL) 1783/2024 in relation to FIR No.RC-05/2023/NIA/DLI registered by NIA. It is also relevant to note that Section 43 B of UAPA,1967 provides that any officer arresting a person under Section 43A of UAPA,1967 shall, as soon as may be, inform of the grounds of arrest. Thus, it is relevant to note that Section 43B of UAPA,1967 does not speak of the word “forthwith”. It may also be noted that in the present case, the petitioner was arrested on 04.11.2024 at 12.40 PM and remand application was moved on 05.11.2024.”
Furthermore, the Bench directs in para 30 stipulating that, “The Court considers that the arrest of the present petitioner in case FIR No.4/2023 dated 12.01.2023 registered under Sections 498A/406/328/376/109/34 IPC at PS Tuglak Road is illegal and is required to be set aside. Let the petitioner be released forthwith if not required in any other case on furnishing a bail bond of Rs.50,000/- with two sureties of the like amount subject to the conditions to be imposed by the learned Trial Court.”
Quite significantly and so also for the sake of clarity, the Bench specifies in para 31 stating that, “The court makes it clear that the present order has been passed for release of the petitioner on the technical non-compliance of Section 50 Cr.P.C. This court has not gone into merits of the case. The prosecution/victim shall have all the necessary liberties to proceed with the investigation and take all the steps for smooth investigation of the case in accordance with law. This court has examined facts of this case only in perspective of Section 50 Cr.P.C., which is akin to Section 47 of BNSS, 2024.”
As a corollary, the Bench then clearly states in para 32 that, “Copy of the order further be also sent to the Commissioner of Delhi Police for necessary information and compliance.”
Most forcefully and most remarkably, the Bench underscores in para 33 mandating that, “This court is of the opinion that there is an urgent need to update the Arrest Memo Forms being used. The Arrest Memo forms as capitulated in this case and in the case of Prabir Purkayastha (supra)clearly reveals that there is no column for recording the grounds of the arrest related to the accused. This court considers that a revised arrest memo form or some annexures are to be added to ensure effective compliance with Section 50 Cr.P.C. and the corresponding Section 47 of BNSS, 2023. The Commissioner of Delhi Police may ensure that necessary actions are taken for the said modification.”
Finally, the Bench then concludes by holding in para 34 that, “Copy of the order further be also sent to the Commissioner of Delhi Police for necessary information and compliance.”
In a nutshell, we thus see that the Single Judge Bench of Delhi High Court comprising of Hon’ble Mr Justice Dinesh Kumar Sharma deserves all the praises for coming out so boldly in favour of upholding the legal rights of the accused and so also in directing the Delhi Police to add the grounds of arrests in arrest memos. A special mention must also be made of para 3 in which it is pointed out so graciously by the Bench that, “Sh. Manu Sharma, learned counsel for the petitioner, has submitted that the arrest of the petitioner by the investigating agency was carried out in contravention of the principles of law, as the grounds for arrest were not communicated to the petitioner. It has been submitted that the investigating agency failed to comply with the mandatory requirements of Section 50 of the Cr.P.C and the arrest memo prepared at the time of the petitioner’s arrest did not disclose any grounds of arrest. In light of the clear violation of Section 50 of the Cr.P.C and in view of the judgment of the Hon’ble Supreme Court in Prabir Purkayastha v. State (NCT of Delhi), (2024) 8 SCC 254, it has been submitted that the petitioner’s arrest be declared illegal, and the petitioner be released forthwith.” It must be also certainly underscored that in all such cases in which police picks up someone without disclosing the grounds of arrests, this leading judgment will definitely always be cited from henceforth which is what it makes this so special!
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