Jahir Sukha Khan Vs State of Maharashtra (Bombay High Court)
Summary: The Bombay High Court, comprising Justice Bharati Dangre and Justice Manjusha Deshpande, allowed a writ petition filed by Jahir Sukha Khan challenging his arrest in connection with FIR No. 35 of 2024 registered at Ghoti Police Station, Nashik, on 18 January 2024. The petitioner was accused of offences under Sections 395 and 341 of the Indian Penal Code arising from an alleged robbery of gold, silver and jewellery transported in a courier vehicle. He contended that the arrest and subsequent remand orders violated Articles 21 and 22 of the Constitution of India and Section 50 of the Code of Criminal Procedure, 1973, because the police had failed to furnish the specific grounds necessitating his arrest.
According to the prosecution, a Maruti Eeco vehicle carrying gold biscuits, silver and jewellery parcels belonging to goldsmiths from Nashik, Dhule and Jalgaon was intercepted near the Ghoti toll booth at approximately 3 a.m. on 18 January 2024. The assailants allegedly threw red pepper powder into the eyes of the occupants, took control of the vehicle and subsequently removed the valuables near Munda Gaon. The petitioner asserted that he was neither named in the FIR nor apprehended at the scene and denied involvement in the offence. He also disputed the legality of his continued detention notwithstanding the subsequent filing of a charge sheet. The prosecution, however, referred to the recovery of approximately 1.028 kg of gold ornaments, 24.296 kg of silver ornaments and bullion valued at ₹17,04,000 from the petitioner’s residence during the investigation.
The petitioner submitted that he had not been informed of the grounds of arrest in writing and relied on the Supreme Court decisions in Arnab Goswami Vs State of Maharashtra, V. Senthil Balaji Vs State and Pankaj Bansal Vs Union of India. The State opposed the petition through an affidavit filed by the investigating officer, claiming that written and oral information had been supplied, a notice under Sections 50 and 41(1) CrPC had been acknowledged by the petitioner, his relative had been informed and the prescribed arrest procedure had been followed. The High Court examined the actual notice rather than accepting the investigating officer’s assertion of compliance.
The Court found that the purported Section 50 notice merely acknowledged the petitioner’s place of arrest, communication to his relative, medical examination rights, FIR number and offences under Sections 395 and 341 IPC. It did not disclose the factual basis or material necessitating his individual arrest. Relying upon Prabir Purkayastha Vs State (NCT of Delhi), the High Court distinguished general reasons for arrest from specific grounds of arrest. It reiterated that grounds must disclose the basic facts available to the investigating officer so that the accused can consult counsel, oppose custodial remand and seek bail. The Court held that mere identification of an offence or compliance with other arrest formalities could not substitute for communicating the grounds of arrest.
The High Court concluded that the petitioner had not been furnished the required grounds of arrest and that his arrest consequently violated the constitutional safeguards under Articles 21 and 22 and the statutory requirement under Section 50 CrPC. The writ petition was allowed, the arrest in connection with FIR No. 35 of 2024 was declared illegal, and the remand order dated 24 January 2024 together with all subsequent remand orders passed by the Sessions Court, Nashik, were declared null and void. The petitioner was held entitled to release upon furnishing bail bonds to the satisfaction of the trial court. The judgment addressed the legality of arrest and remand and did not decide whether the petitioner had committed the underlying robbery.
Cases Discussed
1. Arnab Manoranjan Goswami Vs State of Maharashtra & Ors. (Supreme Court); (2021) 2 SCC 427 — Cited by the petitioner in support of constitutional protection of personal liberty and judicial scrutiny of detention.
2. V. Senthil Balaji Vs State Represented by Deputy Director & Ors. (Supreme Court); 2023 SCC OnLine SC 934; (2024) 3 SCC 51 — Relied upon by the petitioner concerning the legal safeguards applicable to arrest and detention.
3. Pankaj Bansal Vs Union of India & Ors. (Supreme Court); 2023 SCC OnLine SC 1244; (2024) 7 SCC 576 — Cited in support of the obligation to communicate written grounds of arrest and protection against unconstitutional detention.
4. Prabir Purkayastha Vs State (NCT of Delhi) (Supreme Court); 2024 SCC OnLine SC 934; 2024 INSC 414; (2024) 8 SCC 254 — Relied upon by the High Court for the distinction between general reasons for arrest and accused-specific grounds of arrest. Paragraphs 48 and 49 were reproduced in the order. Related TaxGuru reference.
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 in relation to FIR No. 35 of 2024, registered with Ghoti Police Station, Nashik on 18.01.2024 is illegal and in gross violation of his fundamental rights guaranteed under Article 21 and 22 of the Constitution of India. The petitioner has also sought consequent declaration that, remand order dated 24.01.2024 passed by the learned Judge of the Sessions Court, Nashik and the subsequent remand orders are null and void, in view of the constitutional rights guaranteed to him under Article 21 and 22 as well as Section 50 of the Code of Criminal Procedure, 1973 (“Cr.P.C.”).
3. The petitioner has been arrested on 24.01.2024 in relation to FIR No. 35 of 2024 for offence punishable under Section 395 and 341 of the Indian Penal Code. The case of the prosecution is that, Maruti Eco Car No.M.H.12.U.J. 7948, which was loaded with silver, gold biscuits and jewellery parcels belonging to goldsmiths from Nashik, Dhule and Jalgaon was stopped at Ghoti toll booth on 18.01.2024, at about 03:00 a.m. After stopping the car, some unknown persons approached the frst informant’s car and opened the door. After throwing red pepper powder in the eyes of the inmates of the said car, the assailants have taken charge of the car and drove it towards Nashik. They stopped the car near one dhaba near Munda Gaon and took away the articles i.e. the gold, silver and jewellery costing lakhs of rupees. The driver of the said car informed the owner of courier about the incident. Thereafter, the FIR was lodged at Ghoti Police Station, Nashik.
4. According to the petitioner, he has not been named in the FIR nor has he been arrested from the scene of offence. He is a respectable person belonging to a reputed family. He is an ex-military man having its roots in the society. Some gold jewellery and gold biscuits are allegedly recovered from the house of the petitioner at the instance of the co-accused. It is contended by the petitioner that he is not at all in any way connected with the alleged offence.
5. According to the petitioner, there is no prima facie case made out against him. He has been arrested on 24.01.2024 and till date he is in jail. It is contended that, after his arrest on 24.01.2024 he has been produced before the Sessions Court on 25.01.2024, and subsequently remanded to police custody till 07.02.2024 and, thereafter he has been remanded to the judicial custody. His Bail Application has been rejected by the Sessions Court, Nashik on 28.02.2024. The charge-sheet has been fled by the Investigating Agency against the petitioner/accused for offence punishable under Sections 395 and 341 of the IPC on 19.04.2024.
6. The petitioner has categorically raised ground that he has not been informed about the grounds of arrest in writing while arresting him. The communication of grounds of arrest is mandatory in view of Article 22(1) of the Constitution of India and Section 50 of the Cr.P.C, 1973. Since the grounds of arrest were not furnished to the petitioner at the time of arrest and before remanding him to the custody, the continuing custody of the petitioner is rendered grossly illegal and subsequent remand orders are null in the eyes of law. He has been intentionally deprived of the information about his arrest.
7. There is a specifc averment made by the learned counsel for the petitioner that, there is no arrest panchanama drawn by the prosecution and copy of the remand was not furnished to the accused during the course of hearing of the remand. The learned counsel for the petitioner has placed reliance on the catena of decisions of the Hon’ble Apex Court as well as this Court, wherein the personal liberty of an individual has been upheld by the Hon’ble Courts.
The learned counsel for the petitioner has relied on the following judgments:
(i) Arnab Goswami V/s State of Maharashtra1
(ii) V. Senthil Balaji V/s The State and Ors.2
(iii) Pankaj Bansal V/s. Union of India and Ors.3
8. The contents of the present Writ Petition are opposed by the learned APP for the respondent – State by fling reply affdavit through the Police Inspector Mr. Vinod Patil, posted at Ghoti Police Station, Nashik Rural. In the short affdavit fled by the concerned authority he has stated that, when the said case was handed over to him for investigation, after fling of FIR during investigation he came to know that, the petitioner who is Accused No. 3 is residing at Khiragarh, District – Agra, Uttar Pradesh (U.P.). After obtaining necessary permission of the Superintendent of Police, Nashik Rural, he visited U.P. for investigation. On reaching Khiragarh Police Station, he informed about the crime registered against the petitioner. The concerned police offcer present in the police station at Khiragarh has made entry in the general diary of the police station. Thereafter, P.I. Mr. Vinod Patil and his team alongwith police person of Khiragarh Police Station has taken search of the petitioner’s house at Samshan Ghat Road, Khiragarh, and there is a recovery of 1.028 kg. of gold ornaments and 24.296 kg. of silver ornaments and bullion of Rs.17,04,000/- from the present petitioner. The petitioner was arrested on 22.01.2024 at Khiragarh at 20:21 hours and arrest panchanama was prepared as per the State format of U.P. He was thereafter produced before the Chief Judicial Magistrate, Agra, U.P and permission for transit remand was obtained from the said Magistrate.
9. It is the contention of the Police Inspector that, the petitioner has been given written and verbal information while arresting him at Ghoti Police Station, after pre-arrest medical examination of the accused. The petitioner has been given notice under Sections 50 and 41(1) of the Cr.P.C. regarding the information of arrest and he has acknowledged the same by affxing his signature. Intimation was also given to the relative of the petitioner namely Sattar Khan about his arrest. Since huge amount of gold and silver was involved in the said offence, the petitioner as well as the other accused were required for investigation of the case and, therefore, the custody of the petitioner alongwith the other accused has been taken.
10. The specifc ground raised by the petitioner is that, though the P.I. who has fled the affdavit has claimed that the petitioner has been issued notice under Sections 50 and 41(1) of the Cr.P.C, no grounds of arrest have been communicated to him as mandated under Section 50 of the Cr.P.C. On going through the said document, which is a notice under Section 50 of the Cr.P.C. annexed to the reply affdavit, does not disclose the grounds of arrest, as contemplated under Section 50 of the Cr.P.C. The said document is merely an acknowledgment by Accused No. 3 i.e. the petitioner, who acknowledges that, he has been intimated about the place where he is arrested and his nephew has been communicated about his arrest. The petitioner has also acknowledged that he has been intimated about his rights to be medically examined and accordingly he has been examined at Rural Hospital, Ghoti. He further acknowledges that, he is informed that he has been arrested in FIR No. 35 of 2024, for the offence punishable under Sections 395 and 341 of the IPC. From the contents of the said notice, which is claimed to be in compliance of Section 50 of the Cr.P.C., it nowhere refects that this can be termed as grounds of arrest.
11. Section 50 of the Cr.P.C., which contemplates communication of grounds of arrest 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.”
The “grounds of arrest” as contemplated under Section 50(1) as well as Article 22(1) of the Constitution of India is different from the “reasons of arrest”. There is a signifcant difference in “grounds of arrest” and “reasons of arrest”. The difference between the two has been dealt with in detail by the Hon’ble Apex Court in case of Prabir Purkayastha V/s State (NCT of Delhi)4. In para 48 and 49 of the said judgment the Hon’ble Apex Court has observed thus:
“48. We have carefully perused the arrest memo (Annexure P-7) and fnd that the same nowhere conveys the grounds on which the accused was being arrested. The arrest memo is simply a proforma indicating the formal ‘reasons’ for which the accused was being arrested.
49. It may be reiterated at the cost of repetition that there is a signifcant 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 tempering 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 Offcer. 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 Offcer 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.”
12. The communication which is placed on record by the Investigating Offcer purportedly as the “ground of arrest” communicated to the petitioner does not contain the details, which necessitated the arrest of the accused. The basis for his arrest has not been refected in the said document. Now it is the settled position of law, as has been held in the various authoritative pronouncements in this regard, that right to be informed about the grounds of arrest, has been considered to an important fundamental right available to the accused. In the judgment of Prabir Purkayastha (supra), there is a categorical observation made by the Hon’ble Apex Court, which makes it mandatory to communicate the grounds of arrest in writing and copy of such written grounds of arrest to be furnished to the arrested person as a matter of course without exception at the earliest.
The purpose of the information to be given to the arrested person being that, the arrested person would be in a position to consult his advocate and oppose the police custody remand and seek bail. 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 the Courts in a catena of decisions.
13. After going through the memo of Writ Petition and the reply affdavit fled by the respondent-authority and after considering the arguments advanced by the respective parties we fnd that, the petitioner has not been communicated the grounds of arrest, making his arrest illegal and the subsequent remand orders as null and void. Resultantly, we pass the following order:
: ORDER :
(i) The Writ Petition is allowed.
(ii) It is declared that the arrest of the Petitioner in connection with FIR No.35 of 2024 dated 18.01.2024, registered with Ghoti Police Station, Nashik is illegal and in gross violation of the fundamental rights of the Petitioner guaranteed under Articles 21 and 22 of the Constitution of India.
(iii) The subsequent remand order dated 24.01.2024 and all further subsequent orders passed by the Sessions Court, Nashik 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) Upon setting aside the remand orders, the Petitioner Jahir Sukha Khan is entitled to be released from the custody on furnishing bail bonds to the satisfaction of the Trial Court.
(v) Rule is made absolute in the above terms.1 (2021) 2 SCC 427 ↩
2 2023 SCC Online SC 934 ↩
3 2023 SCC Online SC 1244 ↩
4 2024 SCC OnLine SC 934 ↩
