Guest post by Kritika Malik (Research Head – Chambers of Bharat Chugh) 

The Arrest

Very quickly, the facts:

• On the Eve of 3rd October 2023, Newsclick’s editor was arrested at 5:45 in the evening. 
• An FIR was registered under sections 13,16,17,18,22C of UAPA and sections 153A and 120 of IPC. 
• He was remanded to 7 days of police custody at 6 AM on 4th October 2023 despite the police having almost 12 hours of custody left as per Section 57 CrPC.

What went wrong?

• Neither the accused nor his lawyer received a copy of the FIR or grounds of arrest. 
• The certified copy was given on the Eve of 5th October, after the remand order. 
• The lawyer present during the remand was not engaged by the accused. 
• The accused’s chosen lawyer was informed about the remand an hour after remand at 7.07 AM. The Apex court also observed that two lines appeared to be added afterwards.

What did the Hon’ble Supreme Court say?

Declaring the arrest invalid, the Apex court held that the duty of informing the accused about the grounds of arrest in writing is sacrosanct. 

The State argued that the Pankaj Bansal V. UOI would not apply to this case as though the Judgement was passed before remand, it was uploaded after the order of remand was granted in this case. However, the Court held that once the apex court has laid down an interpretation, it is binding on all the courts in the country under Article 141.

Key Takeaways-

“Grounds of arrest” vs. “Reasons of arrest”

The basis of Section 50 CrPC, Section 19(1) PMLA, and Section 43B(1) UAPA is Article 22. In this case, the arrest memo had a column for “Reasons for arrest”, against which general reasons were written like the arrest was made for investigation, to prevent further commission of offences, tampering with evidence, etc. The court said – reasons are not good enough and the police should assign ‘grounds’. Grounds of arrest are personal and specific to the person arrested which must be explained to the accused in a language they understand and given in writing for the record. Where the stakes were Personal liberty, the reasons must be sufficient to defend against custodial remand.

Presence of an advocate and effective representation

Effective legal representation does not just mean having any counsel present. In this case, the copy of the FIR was given after the remand was granted, the grounds of arrest were not disclosed, and the advocate engaged by Mr Prabir Purkayatha was not present. He was given a different advocate ostensibly to provide legal assistance. The accused was deprived of an opportunity to avail himself of the services of the legal practitioner of his choice. To have adequate legal representation, firstly, the grounds must be known; otherwise, how can one oppose remand? Secondly, an advocate of his choice must be allowed to be present during the hearing. Lastly, is the telephonic presence of an advocate enough for effective representation? 

The court also noted that the lines indicating the sending of the copy of the remand application to the learned counsel for the appellant and the opportunity of hearing provided to the Advocate through telephone call had been subsequently inserted in the order. This shows that the accused did not get to put forth his case. 

Thus, while depriving the accused of personal liberty, specific grounds must be clearly explained and given to the accused in writing, and the advocate of choice must be present to make effective representations.^[1][2]

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^[1] Prabir Purkayastha v. State (NCT of Delhi), 2024 SCC OnLine SC 934

^[2] Special Leave Petition (Crl.) Nos. 9220-21 of 2023

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