UAPA | Can Remand Report Satisfy Mandate To Supply Grounds of Arrest In Writing? Supreme Court To Consider

The Supreme Court recently issued notice on the Union's challenge to a Delhi High Court judgment which ordered release of self-styled Army Chief of the United National Liberation Front (UNLF) and his two associates in a UAPA case.

A bench of Justices Vikram Nath and Sandeep Mehta passed the order, after hearing Additional Solicitor General SV Raju. The ASG argued that there cannot be blanket order to immediately supply grounds of arrest in writing, as in some situations, it may not be practical.

Notably, the case raises a question as to whether the constitutional mandate of supplying grounds of arrest "in writing" to an accused [Article 22(1)] is duly satisfied if all relevant facts and specific roles are specified in the remand application filed before a court?

It also raises an issue whether in UAPA cases, the standard for procedural compliance under Article 22(1) should be applied with a degree of practical flexibility "so as not to undermine the efficacy of ongoing investigation"?

Another issue raised is whether an accused who has been released on the basis of non-supply of grounds of arrest can be re-arrested?

During the hearing, Justice Mehta initially expressed that the Union can argue that after an arrest is declared illegal, investigation carried out in the interregnum may not be rendered illegal. They may suffer from irregularity, but not illegality. Later however, the bench said that arguments can be led on all aspects and it will consider everything.

To recap, the three accused persons (respondents) were arrested by NIA on March 13, 2024. Thereafter, they were brought to Delhi and produced before the Special Court on March 14. The Special Court granted 10 days police custody, after expiry of which the accused were remanded to judicial custody.

The UAPA case alleges that they were involved in a trans-national conspiracy hatched by a foreign-based leadership of terror outfits, to exploit the ethnic unrest, to execute terrorist attacks in the State of Manipur and to wage war against the Government of India. The agency further alleged that all three accused were involved in raising funds for the UNLF by committing extortion as well as recruiting cadres and procuring weapons to incite violence in Manipur.

The 3 accused challenged their arrest before the High Court. They also challenged the trial court orders remanding them to NIA custody and judicial custody, arguing that the same were non-est in law. On hearing the NIA, the Court rejected its preliminary objection to the accused's petition. It noted that the accused had moved a petition seeking the writ of habeas corpus before the Division Bench, since at that stage they were unaware of the basis of their detention and were seeking the relief that they be produced before a court of law.

In subsequent hearings, NIA contended that the arrest was not vitiated, as even if the grounds of arrest were not communicated to the petitioners in writing in the arrest memo, such grounds were duly communicated to them in the remand applications filed before the Special Court. Subsequently, the NIA again sought the accused's police custody, which was granted for 3 days. Thereafter, the accused were again remanded to judicial custody.

The issue that arose before the High Court was whether the accused were served with the ground of arrest in writing, as required by law, and therefore, was their arrest legal?

It was NIA's case that on 13.03.2024, there was no requirement for grounds of arrest to be furnished on the accused in writing. Be that as it may, the grounds were orally explained at the time of arrest and later supplied in writing in the remand applications. It was further argued that the arrest of the petitioners was under Section 167 CrPC and it was governed by Section 41(1)(b) of the Code, whereas the Supreme Court's decisions requiring furnishing of grounds of arrest in writing apply to arrests made under Section 19 PMLA and Section 43A of UAPA.

Vide the impugned order, the High Court quashed the remand orders issued by the Special Court and ordered release of the accused from judicial custody, subject to conditions, while holding that their arrest was vitiated. It observed that the NIA had failed to comply with the mandate of furnishing grounds of arrest on the accused.

"in the present case the NIA has failed to comply with the mandate of serving the grounds of arrest upon the petitioners in writing, whether at the time of arrest or even later-on, whether in the arrest memos or in the remand applications."

The Court referred to the Supreme Court's decisions in Pankaj Bansal, Prabir Purkayastha, and Vihaan Kumar to hold that the requirement of serving grounds of arrest in writing to an arrestee is compulsory and unquestionable regardless of whether an arrest has been made under the PMLA or the UAPA or under any other criminal statute. "Moreover, the burden to prove compliance with the requirements of Article 22(1) of the Constitution always rests with the Investigating Agency", it stated.

It noted from the decision in Pankaj Bansal that the interpretation therein was intended to apply prospectively, as it used the word "henceforth". Whereas, in Prabir Purkayastha, the Supreme Court did not make any such observation in relation to arrests under UAPA.

Aggrieved, the Union approached the Supreme Court. It avers that the High Court erred in applying Pankaj Bansal precedent to a UAPA case retrospectively. Further, it is contended that sufficient particulars, specific roles and circumstances of arrest were mentioned in the remand applications, thereby constituting "grounds of arrest" in terms of Article 22(1); yet, the High Court took a hyper-technical approach.

"In the circumstances of the case, where all the three accused were arrested together from a vehicle with illegal weapons, the hyper technical requirement of particularization in grounds of arrest qua each accused is impossible to satisfy, especially in serious cases of national security where terrorist are apprehended together with weapons or explosives."

It may be noted that last year, the Supreme Court had set aside a judgment of the Madras High Court that remand report will satisfy the requirement of furnishing written grounds of arrest.

Case Title: UNION OF INDIA AND ORS. Versus THOKCHOM SHYAMJAI SINGH AND ORS., Diary No. 64391-2025