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 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. FindingsRefusing 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...

Non-Supply Of Grounds Of Arrest In Writing Enough To Challenge Arrests Effected Before SC's Order In Prabir Purkayastha's Case: Karnataka HC

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