Furnishing Grounds Of Arrest Just An Hour Before Remand Hearing Not Compliance Of Section 50 CrPC: Delhi High Court

The Delhi High Court has observed that furnishing grounds of arrest in writing to an arrestee just about an hour before the remand hearing cannot be due or adequate compliance of the requirements of Section 50 of CrPC.

The provision mandates that grounds of arrest must be communicated to an arrestee “forthwith” upon the arrest of a person.

Justice Anup Jairam Bhambhani said that sufficient time must given to an arrestee after the grounds of arrest have been served upon him in writing, to enable him to engage and confer with legal counsel.

The Court said that the test should be that the arrestee must have meaningful opportunity to resist his remand to police custody or judicial custody.

The petitioner, Marfing Tamang, was arrested in a case registered against him by the Delhi Police last year under the Indian Penal Code, 1860 and Immoral Traffic (Prevention) Act, 1956.

It was alleged that Briefly, the allegation against the petitioner is that he was the Manager of an establishment which was engaged in sexual abuse and exploitation of victims. It was the prosecution's case that Tamang was living-of the gains of such activity.

Tamang filed the petition challenging a magisterial court order remanding him to police custody for two days. He was later remanded to 14 days of judicial custody.

It was his case that the ground of arrest were never communicated to him until after the filing of the remand application by the IO before the Magistrate. He said that his arrest and remand were both illegal.

It was also contended that the grounds of arrest mentioned in the remand application filed by the IO before the Magistrate were completely different from the grounds of arrest purportedly served on him during the course of the remand hearing.

Allowing the plea, Justice Bhambhani observed that the word “forthwith” appearing in section 50 of CrPC mandates the Arresting Officer to serve upon an arrestee the grounds of arrest simultaneously with the issuance, or as part, of the arrest memo.

“There is a reason why the above interpretation of the word “forthwith” is the only interpretation that is in consonance with the constitutional mandate that a person cannot be deprived of his liberty mechanically or needlessly. And the reason is that though a person may be detained for enquiry or interrogation, it is only when an IO forms an opinion that there are some justifiable grounds to arrest a person that he would place the person under arrest,” the Court said.

It added once the grounds for requiring a person's arrest have been formulated in the investigating officer's mind, there can be no reason why those grounds cannot be reduced into writing and communicated to the person simultaneously at the time of arrest.

“Therefore, in the opinion of this court, any other connotation of the word “forthwith” would not only dilute the plain meaning of that word but would also erode the fundamental right of a person not to be deprived of his liberty, without being expressly and formally informed as to why he was being arrested, so also to enable him to seek legal recourse against such arrest,” the Court said.

It set aside the remand order passed by the magistrate and as well as his arrest in the ground of non-compliance of the mandatory requirements of section 50 of CrPC and Article 22(1) of the Constitution of India.

However, the Court said that Tamang must continue to participate in the proceedings arising from the FIR while directing that he be released from judicial custody.

Title: MARFING TAMANG @ MAAINA TAMANG v. STATE

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