Since Arrest Of Person Is Drastic & Desperate Stage, It Must Necessarily Be Effected Upon Following Procedure Under Law: Bombay HC

It is extremely vital to note that while ruling on a very significant legal point pertaining to the arrest of a person and while ordering the release of a man held in a cheating case, the Bombay High Court in a most relevant, remarkable, robust, rational and recent judgment titled Mahesh Pandurang Naik Vs The State of Maharashtra & Anr in Writ Petition (ST) No. 13835 of 2024 with Interim Application (ST) No. 14637 of 2024 and cited in Neutral Citation No.: 2024:BHC-AS:28603-DB that was pronounced as recently as on July 18, 2024 in the exercise of its criminal appellate jurisdiction has minced just no words to state in no uncertain terms that since the arrest of a person is drastic and desperate stage, it must necessarily be effected upon following the procedure prescribed under law. It was held that every police officer in each case , before making any arrests, must inform the person to be arrested in writing the grounds of his arrest and only then proceed to effect arrest, as the same is the law of the land as laid down by the Supreme Court of India. We need to note that the Bombay High Court was deciding a writ petition that had been filed by the accused who was arrested and remanded to judicial custody. We must also certainly pay attention here that this landmark order was passed in a petition that had been filed by one Mahesh Naik through his advocate Rishi Bhuta who had challenged his illegal arrest in a cheating case and sought to be released. Most commendably, we must note here that since the arrest of the petitioner was not in compliance with clause (1) of Article 22 of the Constitution and Section 50 of the Code of Criminal Procedure, 1973 (CrPC) and the position of law as laid down by the Apex Court in Pankaj Bansal Vs Union of India & Ors in 2023 Live Law (SC) 844, the Bombay High Court explicitly declared that his arrest is illegal and in gross violation of his fundamental right.

At the very outset, this learned, laudable, landmark, logical and latest judgment authored by Hon’ble Ms Justice Bharati Dangre for a Division Bench of the Bombay High Court comprising of herself and Hon’ble Ms Justice Manjusha Deshpande sets the ball in motion by first and foremost putting forth in para 1 that, “The Writ Petition filed by the Petitioner, arraigned as an accused in C.R.No.68 of 2020 lodged with Malad Police Station, seek the following reliefs :-

“(A) This Hon’ble Court declare the arrest of the petitioner as illegal and gross violation of the fundamental rights of the petitioner guaranteed under 21 and 22 in relation to F.I.R.no.68/2020 dated 19.02.2020 of Malad Police Station.

(B) That this Hon’ble Court be pleased to declare and set-aside the remand order dated 23/2/24 passed by the Ld.Special Judge, MPID Court, Greater Bombay, null and void and further all the subsequent remands as the same being passed in complete violation of all the constitutional mandates i.e. failure to comply with Section 50 of Code of Criminal Procedure being violative of the fundamental rights of the petitioner guaranteed under the Constitution of India.

(C) That this Hon’ble Court be pleased to direct the release of the petitioner in F.I.R.no.68/2020, vide special MPID case no.796 of 2023 of Malad Police Station, pending on the files of Special Judge, Greater Mumbai.

(D)That this Hon’ble Court be pleased to issue writ of habeas corpus granting interim bail to the petitioner pending the final hearing of the writ petition.””

Needless to say, the Division Bench states in para 2 that, “We have heard learned counsel Mr.Rishi Bhuta for the Petitioner and the learned Additional Public Prosecutor Ms.Sharmila Kaushik for the State. The original complainant, at whose behest the C.R. was registered, has filed an intervention application being IA(St) No.14637 OF 2024 and, hence, we have heard learned counsel Mr.Sudeep Pasbola for the intervenor. By consent of the learned counsel representing the parties, we issue Rule. Rule is made returnable forthwith.”

As we see, the Division Bench discloses in para 3 that, “In the wake of registration of C.R.No.68 of 2020 invoking Sections 406 and 420 read with Section 34 of the Indian Penal Code (for short, “IPC”) to which subsequently Section 409 also came to be added alongwith Sections 3 and 4 of the Maharashtra Protection of Interest of Depositors (In Financial Establishments) Act, 1999 (for short, “MPID Act”), the Petitioner came to be arrested on 22/02/2024 and was produced before the Sessions Court on 23/02/2024, when he was remanded to police custody till 28/02/2024, which was further extended till 14/03/2024, and he was then remanded to judicial custody. On completion of investigation, on 22/05/2024, the charge-sheet was filed against the Petitioner.”

Most remarkably, the Division Bench hastens to add in para 12 mandating that, “Since arrest of a person is a drastic and desperate stage, it must necessarily be effected upon following the procedure prescribed and this include compliance of various provisions contained in Chapter V of the Code. Article 22 in form of a fundamental right, also makes it imperative that as soon as a person is arrested and if he has to be detained in custody, he should be informed of the grounds of his arrest, which will enable him to consult and to be defended by a legal practitioner. It also serves a purpose as when the person is produced before the nearest Magistrate, as required within 24 hours of his arrest, he is aware of the grounds of his arrest. The procedure contemplated under clauses (1) and (2) of Article 22, however, do not apply in two contingencies; i.e. to any person who for the time being is an enemy alien or to any person who is arrested or detained under any law, providing for preventive detention, since clauses (4) and (5) of Article 22 prescribe a distinct procedure to be followed, when a person is detained under any law providing for preventive detention. Sub-clause (5) of Article 22 specifically require, that the authority making the order directing detention of any person, by way of preventive detention, to communicate as soon as may be to such person, the grounds on which the order has been made, so as to offer an opportunity of making a representation against the order.”

Most sagaciously, the Division Bench propounds in para 21 that, “Reiterating that right to life and personal liberty is the most sacrosanct fundamental right guaranteed under Articles 20, 21 and 22 of the Constitution of India and any attempt to encroach upon the same would be looked at with all seriousness and to be dealt with strictly, it is specifically held that 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. It is also clarified that mere fact that the charge-sheet has been filed in the matter, would not validate the illegality and its unconstitutionality, committed at the time of arrest of the accused and the grant of initial police custody remand to the accused.”

Most significantly, the Division Bench encapsulates in para 24 what constitutes the cornerstone of this notable judgment postulating that, “The decisions of the Apex Court in Pankaj Bansal Vs. Union of India and in Prabir Purkayastha Vs. State (NCT of Delhi), which now is the law declared by the Apex Court, in the wake of Article 141 of the Constitution of India, bind all the Courts within the territory of India. Similarly, in terms of Article 144, since all the authorities, civil and judicial, in the territory of India shall act in aid of the Supreme Court, the law shall be followed by all concerned, including the Courts as well as the authorities exercising the power of arrest. In light of the elucidation of law in the above manner, the focus being clause (1) of Article 22 of the Constitution of India, when we have examined the present case, it is evident that the grounds of arrest were not furnished to the Petitioner in writing and the arrest/surrender form/panchnama produced before us, column 8 is an unfilled column, which in fact expected the arresting authority to ensure, “whether the arrested person, after being informed of the grounds of arrest and his legal rights, was duly taken into custody on —(date) — (hours) —- (place)”. The form only indicate that the intimation of arrest was given to Laxmi Pandurang Naik, mother of the Petitioner. The station diary entry record that note of his arrest has been taken in the concerned Register and he was apprised of the reasons of arrest and, thereafter, he was arrested. The procedure followed by Respondent No.2 is evidently in violation of sub-clause (1) of Article 22 of the Constitution of India and, since, this provision now stands interpreted by the Apex Court in Pankaj Bansal (supra) and in the wake of the declaration, coming into effect from 03/10/2023, any arrest made thereafter must ensure compliance, by indicating the ‘ground(s) of arrest in writing’ expeditiously. The ratio laid down by the Apex Court having been declared to be law of land, binding on all courts of the country, by virtue of Article 141 of the Constitution of India, needless to state, must be followed by each and every one, including any officer/person/magistrate, before effecting arrest of a person, in any case, where his arrest is deemed necessary and this ground shall contain all such details in the hand of the Investigating Officer, which necessitated the arrest of the accused.”

Equally significant is what the Division Bench then directs in para 25 that, “For the reasons recorded above, since the arrest of the Petitioner is not compliant with clause (1) of Article 22 of the Constitution of India and Section 50 of the Code of Criminal Procedure, 1973 and the position of law, as laid down by the Hon’ble Apex Court, to the above effect and it being binding on all the Court,, it is declared that the arrest of the Petitioner in connection with F.I.R.No.68 of 2020 registered with Malad Police Station is illegal and in gross violation of his fundamental right. Resultantly, the remand order dated 23/02/2024 and the subsequent orders passed by the Special Judge, MPID Court, Gr. Bombay, also cannot be sustained and are liable to be set aside and, accordingly, they are set aside. Upon setting aside the aforesaid orders, the Petitioner is entitled for his release and, since, the charge-sheet has been filed against him, we direct his release from custody on furnishing bail and bonds to the satisfaction of the trial Judge. Rule is made absolute in the aforesaid terms.”

As a corollary, the Division Bench then directs in para 26 that, “In view of the disposal of the Writ Petition, Interim Application also stands disposed off.”

Finally, the Division Bench then concludes by holding in para 27 that, “We request the learned Public Prosecutor Mr.Venegavkar to furnish the copy of this judgment to the Director General of Police (DGP), who shall circulate the same to all the Additional Director General of Police and (ADGP) and Inspector General of Police (IGP), so that it is circulated through the Commissioner of Police/Superintendent of Police to all the officers exercising the power of arrest within their jurisdiction and if it is deemed appropriate, the copy of the judgment shall also be uploaded on the website of the Police Department of the State of Maharashtra.”

All told, we thus see that the Bombay High Court has made it indubitably clear that a person’s arrest is drastic and is done at desperate state. It is also made crystal clear that arrest must necessarily be effected upon following the procedure prescribed under the law. We thus see that the Bombay High Court disposed of the writ petition and very rightly directed the release of the petitioner from custody on furnishing bail and bonds to the satisfaction of the Trial Judge.

Sanjeev Sirohi, Advocate,

s/o Col (Retd) BPS Sirohi,

A 82, Defence Enclave,

Sardhana Road, Kankerkhera,

Meerut – 250001, Uttar Pradesh.