Non-Supply Of Grounds Of Arrest In Writing Enough To Challenge Arrests Effected Before SC's Order In Prabir Purkayastha's Case: Karnataka HC
The Karnataka High Court has held that non-service of grounds of arrest in writing with respect to any alleged offence even on a non-habitual offender shall be adequate grounds to contest the lawfulness of any arrest effected, even prior to the pronouncement of the Supreme Court judgment in the case of Prabir Purkayastha. For context the Supreme Court in Prabir Purkayastha's case postulated...
The Karnataka High Court has held that non-service of grounds of arrest in writing with respect to any alleged offence even on a non-habitual offender shall be adequate grounds to contest the lawfulness of any arrest effected, even prior to the pronouncement of the Supreme Court judgment in the case of Prabir Purkayastha.
For context the Supreme Court in Prabir Purkayastha's case postulated that an arrest in terms of Article 22(1) of the Constitution must be followed by communication of grounds of arrest, in writing, as soon as may be, to enable an effective challenge to the fetters imposed on his natural right to liberty.
Justice Hemant Chandangoudar clarified that “However, it is hereby clarified that non-service of grounds of arrest against any alleged offence, in writing, upon similarly situated arrestees as the petitioner herein, who is admittedly a non-habitual offender, shall be adequate grounds to contest the lawfulness of any arrest effected even prior to the pronouncement of the judgment in the case of Prabir Purkayastha (supra) (D.D. 15.05.2024). At the risk of repetition, it may be observed that the ratio enunciated in Prabir Purkayastha (supra) has merely expounded the pre-existing constitutional guarantee enshrined in Article 22(1) of the Constitution, which has been in effect since 26.01.1950. Any violation of the right to be afforded an opportunity to make an effective representation against the arrest or an order of remand in relation to any offence shall constitute a contravention of the constitutional guarantee under Article 22(1) of the Constitution and the statutory safeguard under Section 50 of Cr.P.C".
Article 22(1) states 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.
The high court further clarified, “Any views expressed herein have no bearing on any challenge to the lawfulness of arrest effected under Section 19 of PMLA, 2002, prior to the pronouncement of the decision of Pankaj Bansal (supra) (DD 03.10.2023) in light of the decision of the Apex Court in Ram Kishor Arora (supra).”
The court held thus while allowing a petition filed by Hemanth Datta @Hemantha @ Baby, who was arrested in a murder case. The petitioner was arrested on 17.02.2023, he had preferred the petition, challenging his arrest alleging that no grounds of arrest were communicated to him, prior to the passing of the remand order.
It was argued that non-communication of the grounds of arrest to the arrestee at the time of his arrest constitutes a violation of the fundamental right under Article 22(1) and therefore, shall also amount to violation of the right to Protection of life and personal liberty, under Article 21 of the Indian Constitution.
Petitioner said, “Service of grounds of arrest upon the arrestee, as soon as may be, is merely an element of procedural law, enunciated in furtherance of the constitutional guarantee of processual fairness, and therefore, carries a retrospective effect, as in the instant case, where the arrest and the impugned remand order was made on 17.02.2023.”
The prosecution opposed petition contending that the obligation incumbent upon the arresting officer to communicate the grounds of arrest in writing to the arrestee, the same is in effect only since the date of pronouncement of judgment by the Apex Court in the case of Pankaj Bansal i.e., October 3, 2023, as enunciated by the Apex Court in the case of Ram Kishor Arora v. Directorate of Enforcement, (2024) and that there was no retrospective application of Pankaj Bansal to arrests made prior to October 3, 2023. Therefore, the petition cannot be maintained.
The purported non-communication of grounds of arrest in writing to the petitioner did not fly in the face of law, as it stood on the date of arrest of the petitioner, on 17.02.2023.
Findings
Refusing to accept the prosecution which opposed retrospective application of Pankaj Bansal to arrests made prior to 03.10.2023, the court said:
"The argument of the Ld. Addl. Special Public Prosecutor however, cannot be countenanced in light of the fact that the operative portion of the judgment and order in Pankaj Bansal at paragraph No. 45 thereof was limited to any arrest effected under PMLA, 2002, as referred to above, at paragraph No. 8.1 herein. As such, the decision in Ram Kishor Arora is distinguishable on facts, as the case at hand involves a challenge to an arrest effected under the provisions of IPC".
It said that the constitutional guarantee of communication of grounds of arrest as soon as may be, enshrined in Article 22(1) of the Constitution was further expanded to include communication of the same in writing and in a language in which the arrestee is conversant in, by Supreme Court in Prabir Purkayastha.
"As such, it is apposite to reiterate that the judgment of the Apex Court in Ram Kishor Arora, which further emphasised the prospective application of the law laid down in Pankaj Bansal, has no bearing on the law laid down in Prabir Purkayastha insofar as, the requirement of serving the grounds of arrest in writing, upon the arrestee," it added.
It further underscored that rule of beneficial construction gives the benefit of a diminished punishment in light of a post facto mollification of the penal provisions contained in the substantive law.
Then it said, “In light of the decision rendered by the Constitution Bench in RR Kishore (2023) 15 SCC 339, the argument against retrospective application of the principle of procedural justice enunciated in the case of Prabir Purkayastha does not hold good, more so, when the rule of beneficial construction goes beyond the realm of procedural law, and prescribes mitigation or modification of penalty in light of post facto change in substantive law.”
It said, “The petitioner herein has been in continued custody since the date of arrest on 17.02.2023, and continues to remain further prejudiced for want of service of grounds of arrest, so as to lay an effective challenge to the lawfulness of his arrest.”
Observing that Writ Courts under Articles 226 and 227 of the Constitution are Courts of equity and justice and that Section 482 of Cr.P.C. reserves the Court with expansive discretion to exercise interference in the interests of justice, depending upon the facts and circumstances of individual cases, the court found it proper to allow the petition.
The bench thus quashed the remand order and directed to release the petitioner from custody forthwith, subject to him executing a personal bond for a sum of Rs.1 Lakh with one surety for the like sum to the satisfaction of the Trial Court within a period of two weeks from the date of his release.
The court also said that “Trial Courts shall consider applications for bail made by those in remand and prejudiced on account of non-service of grounds of arrest, if any, in accordance with the observations made in this order.”
Case Title: Hemanth Datta @Hemantha AND State of Karnataka
Appearance: Advocate Pratheep K C for Petitioner.
Addl SPP B N Jagadeesha with HCGP Rahul Rai K For R1.
Citation No: 2025 LiveLaw (Kar) 154
Case No: WRIT PETITION NO. 9302 OF 2025