This is a guest post by Sh.Ram Kumar, who’s an Assistant Public Prosecutor with the CBI

Introduction

One may remember the scene from the movie “21 Jump Street”, where Deputy Chief Hardy of the police department castigates Jenko and Schmidt, the police officers, and says:

“The department was forced to drop the charges because you forgot to read him his Miranda Rights. What possible reason is there for not doing the only thing you have to do when arresting someone?”

The arrest and detention of a person brings humiliation, curtails freedom, and casts a scar forever, said the Hon’ble Supreme Court in Arnesh Kumar, (2014) 8 SCC 273. In the Indian Constitution, life and personal liberty are the most jealously guarded fundamental rights. The Indian criminal ecosystem has its own Miranda Warning. Articles 20 – 22 provide various safeguards against conviction, detention, and arrest. Article 22(1) mandates that a person arrested shall be informed of his grounds of arrest as soon as possible and be allowed to be defended by the advocate of his choice. However, the mode and medium of informing grounds of arrest are not specified in the Constitution, which was essentially the bone of contention in Prabir Purkayastha vs State, 2024INSC41.

The arrest and detention of the accused can be challenged mainly on 4 grounds: a) that such arrest is not in accordance with law, b) it is not in accordance with the procedure established by law, c) the law providing for arrest/detention is unconstitutional, d) the arrest was effected by mala fides or ulterior motives. Whether the need and necessity of arrest is also subject to judicial review is an open question of law which has been referred to a larger bench for consideration, vide Arvind Kejriwal vs. Directorate of Enforcement, 2024INSC512.

The illegal arrest cannot be cured with subsequent remand by the court, vide Pankaj Bansal vs. Union of India 2023INSC866. In this light, I shall discuss the recent ruling of the Hon’ble Supreme Court in Prabir Purkayastha, and its contours, scope, and applicability.

Brief Facts

Prabir Purkayastha was arrested under UAPA and IPC on October 03, 2023, without furnishing him the written grounds of arrest. He was produced for remand before the Special Judge in the early morning hours before 06:00 AM on October 04, 2023. It was alleged by the petitioner that remand proceedings were manipulated since neither the accused nor his advocate received a copy of the FIR or grounds of arrest. The advocate who was present during the remand was not engaged by the accused. The accused’s chosen advocate was informed about the remand an hour after the remand at 7.07 AM, among other glaring procedural inadequacies. Thus, it was the submission of the petitioner that he was not given adequate opportunity to oppose his police remand before the court and hence remand order violates article 22(1) of the constitution. A fervent plea was made that the ratio of Pankaj Bansal (applicable only to PMLA cases) to supply written grounds of arrest to the arrestee must be applied to this case as well.

            The Apex Court agreed with the reasoning of the petitioner and held that grounds of arrest have to be furnished to the arrestee in writing at the time of arrest in all cases, without exception. The arrest shall be declared illegal if written grounds of arrest are not supplied.  The judgment was pronounced on 15.05.2024.

            The Apex Court also clarified the distinction between reasons for arrest and grounds for arrest. The reasons for arrest are formal parameters that apply to every case, e.g., an arrest is necessary to prevent the accused from tampering with the evidence, or prevent him in evading the process of court, etc. The reasons for arrest are mentioned in the section 35(1)(b)(ii) BNSS. The grounds of arrest are personal in nature and must apply to the particular accused in question. For example, the accused is a habitual offender and has clout in society by virtue of being a member of the gang of dacoits and therefore he may dissuade the witnesses from testifying true facts.

Prabir Purkayastha: Whether applicable retrospectively?

The question that emerges for consideration is whether the judgment be applied retrospectively to arrests made before the day of its pronouncement i.e. 15.05.2024. The opinion is divergent across academia and High Courts. 

Arguments in Favour of Retrospective Application

On one hand, supporters argue that this judgment should be applied retrospectively even for arrests made prior to 15.05.2024 as an arrest made without furnishing written grounds of arrest is violative of fundamental rights and void in law. Prabir Purkayastha was remanded on 04.10.2023 and his arrest was declared illegal for want of written grounds of arrest therefore all arrests made on or after 04.10.2023 be declared illegal if made without furnishing written grounds of arrest. They argue that as per the “doctrine of prospective ruling”, a judgment has to be applied retrospectively unless made to have a prospective effect. They further argue that the accused must get the advantage of any statement of law, if beneficial to him.

In Manulla M. Kanchawala vs. State of Maharashtra, Criminal Writ Petition Nos. 3276 2024, Hon’ble Bombay High Court leaned in favor of this view. The petitioner in this case was arrested on 05.02.2024 (before pronouncement of judgment in Prabir Purkayastha) and reasons for arrest were communicated orally and also mentioned in the arrest memo. However, the arrest was declared illegal for want of supply of written grounds of arrest. The focus here is on the word ‘written’.

Arguments in favour of Prospective Application

The other view is that the ratio in the judgment of Prabir Purkayastha must be applied prospectively.  Proponents of this view argue that applying the ratio in Prabir Purkayastha retrospectively on arrests that happened prior to 15.05.2024 can result in all the undertrials coming to courts for the purpose of being released on the grounds of their arrest being illegal. If that was the intention of the Hon’ble Supreme Court, it would have expressly mentioned the same. Moreover, law enforcement agencies cannot be faulted for being in breach of something which was not even the law at the relevant time.

            The judgment in Prabir Purkayastha holds, 

“Thus, we have no hesitation in holding that the interpretation of the statutory mandate laid down by this Court in the case of Pankaj Bansal(supra) on the aspect of informing the arrested person of the grounds of arrest in writing has to be applied pari passu to a person arrested in a case registered under the provisions of the UAPA.”

The Hon’ble High Court of Kerala in Saheer E. P. Vs. National Investigating Agency, CRL. A NO. 673 OF 2024 has held that the phrase pari passu, means “with equal steps, equally, without preference”. Since the law laid down in Pankaj Bansal has to be applied prospectively, therefore by the same analogy, the law applied in Prabir Purkayastha shall also apply prospectively (from the date of pronouncement of judgment).

Thus, although there are divergent views, the view supporting prospective application seems to be more logical until an authoritative pronouncement is made in this regard.

Applicability in Trap Cases

The law of furnishing written grounds of arrest to the arrestee emanated from cases under the Prevention of Money Laundering Act, 2002 (PMLA) and Unlawful Activities Prevention Act, 1967 (UAPA) although its applicability has been extended to all other offenses. The offenses committed under PMLA and UAPA require specialized investigation. The incriminating documents run into thousands of pages and several oral witnesses are relied upon. As per section 45 of PMLA, the court at the time of bail hearing, has to arrive at a view that there are reasonable grounds to believe that the accused is not guilty. Thus, in such complex cases involving numerous transactions and facts spiraling like a spider’s web, it becomes extremely difficult for the accused to remember the grounds of arrest if communicated to him orally. This prevents him from effectively opposing his police remand. Hence, it was laid down that grounds of arrest must be communicated in writing.

            However, in trap cases, where the accused is caught red-handed demanding and accepting the bribe, this rationale of mandatorily furnishing written grounds of arrest does not seem compelling. In such cases, the accused cannot convincingly take the plea that he was unaware of the grounds of his arrest which hampered his right to effectively oppose the police remand. A similar situation erupted in an NDPS case where the High Court refused to stretch the benefit of Prabir Purkayastha. In Govind Singh vs. State of Uttarakhand, MANU/UC/0305/2024, the Hon’ble High Court observed,

            “07. Learned State Counsel further submits that the contraband recovered from petitioner is Charas, weighing about 1086 gms. He disputes the contention made on behalf of the petitioner for challenging the remand order and submits that there is no infirmity in the order of remand and petitioner was arrested as per Law, as he was found carrying commercial quantity of Charas. He reiterates that ground of arrest was communicated to petitioner and submits that here petitioner was caught red handed with the contraband, therefore, the present case cannot be compared with a case, where, an individual is arrested for some offence, which is alleged to have been committed some time back and the person who is arrested is taken by surprise, as he is at a loss to understand the reason for his arrest………….08. We find substance in the submission made by learned State Counsel”

The author however submits that, since the judgment of the Hon’ble Supreme Court in Prabir Purkasyastha is the law of the land under Article 141 of the Constitution, therefore it must be applied to all and sundry situations without exception.

This is a guest post by Sh.Ram Kumar, who’s an Assistant Public Prosecutor with the CBI.

Postscript: The author is an assistant public prosecutor with the Central Bureau of Investigation. Views expressed are personal opinions.