A Welcome Decision On Supplying Written Grounds Of Arrest But With A Tale Of Caution

The power of the state to arrest an individual and chip away his liberty is circumscribed by a procedural fortress of various constitutional and statutory prescriptions. Amongst other protections, Article 22 of the Indian Constitution (also see s. 47 BNSS/ s. CrPC) ordains that an arrested person should 'be informed, as soon as may be, of the grounds for such arrest'. Further, the arrested person cannot be detained in custody by the police beyond a period of twenty-four hours without the authorization of the magistrate. (Article 22(2); see also s. 58 and 187 (2) BNSS/ s. 57 and 167(1) CrPC). The arrested person must invariably be produced in person before the nearest magistrate within a period of twenty-four hours of arrest. The purpose of remand proceedings before the Magistrate is multifold. Firstly, the law entrusts the magistrate to ensure that the power of arrest is not weaponized by the State and that there are in fact well founded reasons to curtail the liberty of the accused person. To ensure that the arrest is not groundless and that there is need for further detention the magistrate must pursue case diary remand proceedings. The accused also needs to be heard at this stage and afforded an opportunity to explain why his continued detention may not be required. Secondly, if the magistrate comes to a conclusion that further detention of the accused is required – he must determine the duration and nature of custody. He can remand the person either to police or magistrate custody, as the case may be. Thirdly, the remand proceedings act as a check against torture and other illegal practices adopted by the police during the interrogation. They afford an opportunity for the arrested person to explain the treatment meted out during custody.

On the other hand, the praxis of remand proceedings, often commented upon the constitutional courts, show that often magistrates act mechanically- as mere rubber stamps -authorizing further custody without even perusing the case diary. Undoubtedly, this casual approach in the performance of duty reduces the constitutional and statutory rights of an arrested person to mere pager tigers. While the accused has the right to be resist remand by being represented by a lawyer at that stage (See, Mohd. Ajmal Modh. Amir Kasab @ Abu Mujahid Vs. State of Maharashtra, 2012 INSC 357), it is often observed that the lawyer of choice or the legal aid lawyer do not have sufficient information to effectively oppose remand proceedings. While the law mandates that the arrested person must be informed of the grounds of arrest- it fails to stipulate the time, mode and manner in which the grounds of arrest are to necessarily communicated to the arrested persons- a lacuna often exploited by the prosecution to their advantage.

However, plugging in some gaps to reduce the informational asymmetry that Goliath State uses unfairly against humble David's, the Supreme Court of India in Mihir Rajesh Shah v. State of Maharashtra and anr has ruled that, “The grounds of arrest must be communicated in writing to the arrestee in the language he/she understands…The said grounds be communicated in writing within a reasonable time and in any case at least two hours prior to production of the arrestee for remand proceedings before the magistrate.” The court further made it clear that there was no room for a state of exception. The mandate to supply grounds of arrest-in writing- in language understood by the accused would apply irrespective of the statue under which arrest has been made- even to arrest under special criminal laws. In case of non-compliance with the mandate, the arrest and subsequent remand would become illegal and entitle the person to be set free.

At the first blush this judgement seems like a gamechanger but one needs to pause and reflect and consider the constitutional compatibility of the directions issued by the court and implementational implications. The first question that arises is whether the outer limit of 'two hours prior to remand proceedings' in sync with the constitutional mandate that requires the grounds of arrest to be communicated 'as soon as may be'. S. 47 of the BNSS (that corresponds to s. 50 CrPC) requires grounds of arrest to be communicated “forthwith” to the arrested person. The fear is that the two-hour outer limit will become the de facto standard and grounds of arrest will now be supplied not immediately but only before two hours of remand proceedings. This raises another question as to whether “two hours” are adequate to ensure proper legal representation. The Delhi High Court in Marfing Tamang v. State had taken the view that requirement to provide grounds of arrest 'forthwith' meant 'simultaneously and immediately upon the arrest of such person'. The Court further held furnishing the grounds of arrest in writing just about an hour before the remand hearing in the present case was not an adequate compliance of the requirements of section 50 Cr.P.C. that mandates that grounds of arrest must be communicated to an arrestee forthwith and that such a compliance with reduced the right under s. 50 to a farce. There is no reason as to why a similar stand could not have adopted by the Supreme Court. The court ought to have prescribed the minimum time limit to ensure constitutional and statutory compliance than extend the period to just two hours before the remand hearing.

The other missing link in the judgement is its failure to ensure the purity of the system that the arrested person was in fact supplied the written grounds well in time and in any case before two hours of remand hearing. In the absence of external checks and balances, the police authorities can very well exploit the system and manufacture the time in records to show that the ground of arrest was served upon the arrested person well in time while that may not be the case in reality. An independent oversight mechanism ought to have been created to ensure that the written grounds of arrest are communicated to the arrested person at a specific time. One of the possible ways was to ensure that the actual time of communication of grounds of arrest is simultaneously is fed into a public digital portal. Perhaps, the use of blockchain technology can purge the system of any manipulation. A digital solution would also be in sync with the approach of the Supreme Court in leveraging technology to improve criminal justice. Notably to address the issue of information asymmetry in criminal justice system, the Supreme Court in Youth Bar Association of India v. Union of India and anr, (2016) 9 SCC 473, directed the copies of FIR, except in sensitive matters, must be uploaded on the website of the police website or on the official website of the State Government within 24 hours of the registration of FIR. A similar direction could have been issued the Supreme Court to upload the grounds of arrest on the same police/ government portal.

Another and major problematic aspect of the decision of the Court in Mihir Rajesh Shah's case is the provision for rearrest. Unlike default bail where a subsequent submission of chargesheet does not entitle the police to re-arrest the accused, the defect to supply written grounds is curable defect and re-arrest is permissible. According to the Court, “On such release, an application for remand or custody, if required, will be moved along with the reasons and necessity for the same, after the supply of the grounds of arrest in writing setting forth the explanation for non-supply thereof within the above stipulated schedule. On receipt of such an application, the magistrate shall decide the same expeditiously and preferably within a week of submission thereof by adhering to the principles of natural justice”. Notably, the police need approval from the magistrate to re-arrest the accused person. However, the power of rearrest while cushioned with certain check and balances is problematic on many counts. Firstly, the court has failed to provide sufficient explanation for the very rationale for rearrest. Why should the state with all the resources at its disposal be allowed to correct its mistake and to cover up its deficiencies? Why couldn't a cautious approach be adopted in the first place especially since the case concerns the liberty of an individual. The failure to provide grounds of arrest is violation of the fundamental right to an accused person and waiver of fundamental rights is not permissible. Through the room for rearrest the court is in fact incentivizing the State to violate the fundamental rights of people without any repercussions. Secondly, the court has failed to delineate the time limits within which an application for re-arrest has to be made to the Magistrate; Thirdly, the arrested person once released on the fault of police to supply written grounds of arrest will be immediately prompted to seek an anticipatory bail to maintain his liberty due to this second opportunity given to the State to cure its defect and re-arrest the person. This will only lead to multiplicity of legal proceedings. Fourthly, while the accused needs to be heard before an order of re-arrest is made by the magistrate, it is unclear how this procedural leeway will interact with the provisions on anticipatory bail. While an anticipatory bail can be granted only by Sessions or High Court, the order of re-arrest is to be made by the Magistrate. Suppose a person accused of an offence is released due to non-furnishing of grounds of arrest in writing and he subsequently applies for anticipatory bail before the Sessions Court. Now while the matter is pending before the Sessions Court, the police file an application before the Magistrate to re-arrest. Will the Sessions Court adjourn the anticipatory bail hearings or vice-versa?

Lastly, the decision in Mihir Shah's case does not in any way increase police accountability. Will any action be taken against the police officials who arrest people on the drop of hat? The Supreme Court ought to have ensured that at least disciplinary action is initiated against police officials who arrest people but fail to supply written grounds of arrest. Further, the judgement is silent on the provision of compensation for people who are groundlessly arrested. While in some individual cases where the criminal law is set in motion without any reason the court has, previously, ordered payment of compensation for violation of Article 21, this decision is silent on that aspect. Lack of police and state accountability will make it malleable and the rich and powerful will exploit the system to escape from the clutches of law. They can very easily bribe the police official and delay the supply of written grounds of arrest well within stipulated time period.

The judgement in Mihir's case is a one step forward in safeguarding individual liberty and two steps backwards in ensuring state accountability for groundless arrests and susceptible to be misuse.

The author is a practicing advocate at the Supreme Court of India and Consultant, LiveLaw Acadmey. She was previously an assistant professor of law at NLUO and NLSIU.

Views Are Personal.