We have heard the learned counsel for the petitioner as
well as the learned APP for the State and after going through
the reply affidavit and the documents annexed with the reply
affidavit, we do not find any grounds of arrest being
communicated to the petitioner. From the arrest panchanama
it is evident that, information is given to his wife on the cell
number provided by him, apart from which, there are no
grounds of arrest mentioned in the arrest surrender form.
{Para 6}
7. It is the requirement of Section 50 of the Cr.P.C. that an
accused, who is being arrested without warrant to be forthwith
communicated about the full particulars of the offence for
which he is arrested or the other grounds for such arrest. The
petitioner has alleged non-compliance of Section 50 of the
Cr.P.C. as also Article 22(1) of the Constitution of India, by
relying upon law laid down by the Apex Court in this regard.
Therefore, it is a specific contention of the petitioner that,
there is a violation of his constitutional as well as statutory
rights.
8. After considering the submissions as well as the
documents produced on record, we do not find grounds of
arrest being communicated to the petitioner as contemplated
by Section 50 of the Cr.P.C. and explained by this Court as well
as the Hon’ble Apex Court in its various judicial
pronouncements. We are satisfied that there is a flagrant
violation of Section 50 of the Cr.P.C. as well as Article 22(1) of
the constitution of India, and since the grounds of arrest are
not communicated to the petitioner, making his arrest illegal.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
WRIT PETITION (STAMP) NO.17029 OF 2024
Sachin Mahipati Nimbalkar Vs The State of Maharashtra
CORAM: BHARATI DANGRE &
MANJUSHA DESHPANDE, JJ.
DATED : 23rd OCTOBER, 2024
Order : (Per Manjusha Deshpande, J.):-
1. The petitioner is seeking a declaration that his arrest in
relation to FIR No.1191 of 2023 dated 31.10.2023, registered
at Karad City Police Station, Satara is illegal and in gross
violation of the fundamental rights guaranteed to him under
Article 21 and 22 of the Constitution of India. He is further
seeking a declaration that the consequential remand order
dated 01.11.2023 and all the subsequent remand orders
passed by the learned J.M.F.C., Karad, are null and void and
are in violation of fundamental rights guaranteed to him under
the Constitution of India.
2. The petitioner has been arraigned as an accused in C.R.
No. 1191 of 2023, for offence punishable under Sections 302,
364, 324, 323, 143, 147, 148, 149, 504 and 506 of the Indian
Penal Code. Though initially he was not named as an accused,
but during the course of investigation, name of the petitioner
came to be added as an accused. He was arrested on
01.11.2023 at 12:41 p.m. and was produced before the J.M.F.C,
Karad on the very day. He was remanded to police custody till
06.11.2023, and thereafter his police custody remand was
extended upto 07.11.2023. Investigating Agency has fled
charge-sheet in the present matter.
A complaint was lodged by one Pramod Vishwas Pawar
alleging that, his brother Pravin had an affair with the
daughter of one Balasaheb Pawar. On 30.10.2023, one Shekhar
Pawar and four other unknown persons came inquiring the
whereabouts of the brother of the complainant Pravin and
when the complainant informed that he was not aware about
his brother’s whereabouts, Shekhar assaulted the complainant
and made the complainant sit in a Bolero car. It is further
alleged that, there was another four wheeler, wherein the
father of the complainant and one Janardhan Gurav had sat
alongwith two other persons. The accused persons assaulted
Janardhan, the complainant and his father with sticks, fsts
and blows and due to the said assault, Janardhan has expired.
Therefore the FIR was lodged in Karad City Police Station on
31.10.2023.
3. The petitioner had fled the regular Bail Application,
which is pending before the Additional Sessions Judge, Karad.
The petitioner is challenging his arrest in the present Writ
Petition on the ground that, the grounds of arrest were not
informed to him in writing and as such his arrest is in gross
violation of the constitutional mandate under Article 22(1) of
the Constitution of India, and there is total non-compliance of
Section 50 of the Code of Criminal Procedure, 1973.
4. It is the contention of the petitioner that, mere passing of
successive remand orders do not validate initial remand, if
such arrest was not in conformity with law. The grounds of
arrest ought to have been furnished to the petitioner before
producing him before the learned J.M.F.C., Karad, seeking
custody and subsequent remand. The continuing custody of
the petitioner is grossly illegal and a nullity, since the initial
arrest itself is in violation of constitutional mandate and is in
flagrant violation of statutory rights of the petitioner.
The learned counsel for the petitioner has relied on the
judgment delivered by the Hon’ble Apex Court in case of
Pankaj Bansal V/s. Union of India and Ors. 2023 SCC OnLine 1244.
and the other various judgments of this Court as well as the Hon’ble Apex Court in support of his contention.
5. The learned APP representing the State has relied on the
affdavit affrmed by Mr. Rajesh Prakash Mali, the Assistant
Police Inspector, attached to Karad City Police Station, Satara,
wherein he has candidly stated that, during the course of
investigation, the petitioner was arrested on 01.11.2023 at
12:41 hours, since his name was revealed in the investigation.
He was informed about the grounds of his arrest and the said
fact has also been mentioned in the station diary dated
01.11.2023, maintained in Karad City Police Station.
It is further stated that, the concerned API has followed
guidelines of the Hon’ble Apex Court in case of D. K. Basu V/s.
State of West Bengal by informing the wife of the petitioner
about arrest of the petitioner on her mobile phone. Arrest
panchanama to that effect was made and the same was signed
by the panchas. After conducting necessary medical
examination the petitioner was produced within 24 hours
before the Court of J.M.F.C, Karad, alongwith the copy of
remand report. The petitioner was given the copy of remand
report, which has been acknowledged by him by putting his
signature, therefore there is no violation of his fundamental
rights as claimed by the petitioner. According to the API,
before the arrest of the petitioner, reasons for arrest and his
legal rights have been explained to the petitioner in presence
of panchas and, accordingly, the arrest form of the petitioner
was duly flled up. Therefore according to the API, the
guidelines of the Hon’ble Apex Court in case of D. K. Basu
(supra) have been complied with.
It is further stated in the affdavit that, informing the
2 (1997) 1 SCC 416
particulars of offence to the accused is the statutory as well as
the constitutional requirement, the same is complied by way of
fling remand application before the court, a copy of which has
also been served on the accused and his lawyer.
6. We have heard the learned counsel for the petitioner as
well as the learned APP for the State and after going through
the reply affdavit and the documents annexed with the reply
affdavit, we do not find any grounds of arrest being
communicated to the petitioner. From the arrest panchanama
it is evident that, information is given to his wife on the cell
number provided by him, apart from which, there are no
grounds of arrest mentioned in the arrest surrender form.
So far as ground being communicated through the
remand application is concerned, the law in this regard is now
well settled. The Hon’ble Apex Court in case of Prabir
Purkayastha V/s State (NCT of Delhi) 2024 SCC OnLine SC 934
has elaborately
considered this issue and in para 49 of the said decision, the
distinction between the “reasons of arrest” and “grounds of
arrest” have been culled out, which reads thus :
“49. It may be reiterated at the cost of repetition that
there is a significant difference in the phrase ‘reasons
for arrest’ and ‘grounds of arrest’. The ‘reasons for
arrest’ as indicated in the arrest memo are purely
formal parameters, viz., to prevent the accused person
from committing any further offence; for proper
investigation of the offence; to prevent the accused
person from causing the evidence of the offence to
disappear or tempering with such evidence in any
manner; to prevent the arrested person for making
inducement, threat or promise to any person
acquainted with the facts of the case so as to dissuade
him from disclosing such facts to the Court or to the
Investigating Offcer. These reasons would commonly
apply to any person arrested on charge of a crime
whereas the ‘grounds of arrest’ would be required to
contain all such details in hand of the Investigating
Offcer which necessitated the arrest of the accused.
Simultaneously, the grounds of arrest informed in
writing must convey to the arrested accused all basic
facts on which he was being arrested so as to provide
him an opportunity of defending himself against
custodial remand and to seek bail. Thus, the ‘grounds of
arrest’ would invariably be personal to the accused and
cannot be equated with the ‘reasons of arrest’ which are
general in nature.”
7. It is the requirement of Section 50 of the Cr.P.C. that an
accused, who is being arrested without warrant to be forthwith
communicated about the full particulars of the offence for
which he is arrested or the other grounds for such arrest. The
petitioner has alleged non-compliance of Section 50 of the
Cr.P.C. as also Article 22(1) of the Constitution of India, by
relying upon law laid down by the Apex Court in this regard.
Therefore, it is a specifc contention of the petitioner that,
there is a violation of his constitutional as well as statutory
rights.
8. After considering the submissions as well as the
documents produced on record, we do not find grounds of
arrest being communicated to the petitioner as contemplated
by Section 50 of the Cr.P.C. and explained by this Court as well
as the Hon’ble Apex Court in its various judicial
pronouncements. We are satisfied that there is a flagrant
violation of Section 50 of the Cr.P.C. as well as Article 22(1) of
the constitution of India, and since the grounds of arrest are
not communicated to the petitioner, making his arrest illegal.
Resultantly, the Writ Petition is allowed and we declare
that the arrest of the petitioner in relation to FIR No. 1191 of
2023 dated 31.10.2023 is illegal and in gross violation of
fundamental rights of the petitioner and the consequential
remand order dated 01.11.2023 passed by the J.M.F.C., Karad
as well as the subsequent remand orders are null and void.
In view of the declaration, the petitioner deserves to be
released forthwith from the custody on furnishing bail bond to
the satisfaction of the trial Court. The Writ Petition is disposed
off in the above terms.
We must clarify that the observations made in the
present Writ Petition would not effect the merits of the case,
but are restricted to the claim raised by the petitioner about
the illegality of the arrest.
(MANJUSHA DESHPANDE, J.) (BHARATI DANGRE, J.)
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