Chandrabhan @ Gulab S/O Dhanraj Kapse vs the State of Maharashtra Thr Senior Police Inspector Ps Ravanwadi Dist Gondia

(Chandrabhan @ Gulab S/o Dhanraj Kapse Vs. State of Maharashtra, through Senior Police Inspector, Police Station Ravanwadi, District Gondia and another)

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Office Notes, Office Memoranda of Coram, Court's or Judge's orders appearances, Court's orders of directions and Registrar's orders

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Mr. A.S. Mardikar, Senior Advocate with Mr. D.P. Singh, Advocate for the applicant. Mr. D.V. Chauhan, Senior Advocate and Public Prosecutor with Mr. V.A. Thakare, A.P.P. for the non-applicant/State. .. (Cri. Appln. (B.A.)199/2025)

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Mr. S.V. Sirpurkar and Mr. D.S. Sirpurkar, Advocate for the applicant. Mr. D.V. Chauhan, Senior Advocate and Public Prosecutor with Ms. M.A. Barabde, A.P.P. for the non-applicant/State. .. (Cri. Appln. (B.A.)18/2025)

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Mr. S.V. Sirpurkar and Mr. D.S. Sirpurkar, Advocate for the applicant. Mr. D.V. Chauhan, Senior Advocate and Public Prosecutor with Mr. Ujjawal Phasate, A.P.P. for the non-applicant/State. .. (Cri. Appln. (B.A.)718/2025)

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Mr. R.P. Joshi, Advocate for the applicant.

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Mr. D.V. Chauhan, Senior Advocate and Public Prosecutor with Mr. C.A. Lokahnde, A.P.P. for the non-applicant/State. .. (Cri. Appln. (B.A.)1130/2025)

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Ms. Sunita Kulkarni, Advocate with Mr. S.D. Chande, Advocate for the applicant. Mr. D.V. Chauhan, Senior Advocate and Public Prosecutor with Ms. M.A. Barabde, A.P.P. for the non-applicant/State. .. (Cri. Appln. (B.A.)808/2025)

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Mr. Amol Jaltare, Advocate for the applicant. Mr. D.V. Chauhan, Senior Advocate and Public Prosecutor with Ms. M.A. Barabde, A.P.P. for the non-applicant/State. .. (Cri. Appln. (B.A.)622/2025)

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Mr. Dipesh Mehta, Advocate for the appellant. Mr. D.V. Chauhan, Senior Advocate and Public Prosecutor with Mr. V.A. Thakare, A.P.P. for the respondent No.1/State.

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Ms. Varsha A. Warade, Advocate (appointed) for respondent No.2

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.. (Cri. Appeal 474/2025)

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CORAM: MRS.VRUSHALI V. JOSHI, J. DATED: 12.12.2025.

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After the judgment of the Hon’ble Apex Court in the case of Mihir Rajesh Shah V/s. State of Maharashtra reported in 2025 SCC OnLine SC 2356 all these applications are filed claiming that the grounds of arrest are not informed to the applicants which is mandatory as per the judgments of the Hon’ble Apex Court and there is an infringement of their fundamental right enshrined under Article 22(1) of the Constitution.

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Since in all these applications similar question of law is involved they are tagged together, heard jointly and decided by this common order.

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The main ground, as raised in all these applications, is the violation of the right under Article 22(1) of the Constitution of India and Section 50 of the Code of Criminal Procedure (now Section 47 of the Bharatiya Nagarik Suraksha Sanhita) as the applicants were not informed about the grounds of their arrest.

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At this stage, I am not delving deeper into the merits of each case. Some of the applications are filed after 3 to 4 years by raising grounds of delay in trial along with this issue. Therefore, considering the common issue in all these applications I have heard the learned Advocates for the respective parties.

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The applicants during their arguments brought to my notice that none of them was informed the grounds of their arrest in writing. Remand reports produced before me show that Column No.8 about grounds of arrest is blank.

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Learned Senior Advocate Mr. Mardikar has referred to the provisions, which are violated i.e. Article 22(1) of the Constitution, Sections 47 and 48 of the Bhartiya Nyaya Sanhita, which read as follows:-

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“22. Protection against arrest and detention in certain cases - (1) 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.”

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“47. Person arrested to be informed of grounds of arrest and of right to bail.— (1) Every police officer or other person arresting any person without warrant shall forthwith communicate to him full particulars of the offence for which he is arrested or other grounds for such arrest.

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(2) Where a police officer arrests without warrant any person other than a person accused of a non-bailable offence, he shall inform the person arrested that he is entitled to be released on bail and that he may arrange for sureties on his behalf.”

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“48. Obligation of person making arrest to inform about arrest, etc., to relative or friend.— (1) Every police officer or other person making any arrest under this Sanhita shall forthwith give the information regarding such arrest and place where the arrested person is being held to any of his relatives, friends or such other persons as may be disclosed or nominated by the arrested person for the purpose of giving such information and also to the designated police officer in the district.

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(2) The police officer shall inform the arrested person of his rights under sub-section (1) as soon as he is brought to the police station.

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(3) An entry of the fact as to who has been informed of the arrest of such person shall be made in a book to be kept in the police station in such form as the State Government may, by rules, provide.

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(4) It shall be the duty of the Magistrate before whom such arrested person is produced, to satisfy himself that the requirements of sub-section (2) and sub-section (3) have been complied with in respect of such arrested person.”

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In this context, contention of learned Senior Advocate is that grounds of arrest were not furnished to the applicants in writing. He has relied on the judgment of Prabir Purkayashta V/s. State (NCT of Delhi) reported in ( 2024) 8 SCC 254 wherein the observations are made about difference between “grounds of arrest” and “reasons of arrest”.

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“37. The interpretation given by the learned Single Judge that the grounds of arrest were conveyed to the accused in writing vide the arrest memo is unacceptable on the face of the record because the arrest memo does

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not indicate the grounds of arrest being incorporated in the said document. Column No. 9 of the arrest memo (Annexure P-7) which is being reproduced hereinbelow simply sets out the “reasons for arrest” which are formal in nature and can be generally attributed to any person arrested on accusation of an offence whereas the “grounds of arrest” would be personal in nature and specific to the person arrested.

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Reason for arrest (a) Prevent accused person from committing any further offence.

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For proper investigation of the offence.

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(b) For proper investigation of the offence. (c) To prevent the accused person from causing the evidence of the offence to disappear or tempering with such evidence in any manner.

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(d) To prevent such person from making any 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 police officer. (e) As unless such person is arrested, his presence in the court whenever required cannot be ensured.”

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Now, coming to the aspect as to whether the grounds of arrest were actually conveyed to the appellant in writing before he was remanded to the custody of the Investigating Officer.

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We have carefully perused the arrest memo (Annexure P-7) and find that the same nowhere conveys the grounds on which the accused was being arrested. The arrest memo is simply a proforma indicating the formal “reasons” for which the accused was being arrested.

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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

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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 Officer. 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 Officer 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.

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From the detailed analysis made above, there is no hesitation in the mind of the Court to reach to a conclusion that the copy of the remand application in the purported exercise of communication of the grounds of arrest in writing was not provided to the appellant-accused or his counsel before passing of the order of remand dated 4-10-2023 which vitiates the arrest and subsequent remand of the appellant.”

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The learned Senior Advocate has submitted that the observations in the case of Vihaan Kumar V/s. State of Haryana and another reported in (2025) 5 SCC 799 are not disturbed. In case of Mihir Rajesh Shah (supra) “henceforth” is used because it was not in the earlier judgments of the Hon’ble Supreme Court.

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Reliance is placed on the judgment of Vihaan Kumar (supra) and State of Karnataka V/s. Sri Darshan reported in 2025 SCC OnLine SC 1702 wherein it is observed that the written grounds of arrest and insufficiency of oral communication pertaining to intimation of right and statutory checklist were cyclostyled and supplied belatedly. Observations in the case of Ahmed Mansoor V/s. State (SLP (Cri)

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No.198/2025 delivered on 14.10.2025 are in relation to non-supply of reasons of grounds of arrest. It has been clarified that the law laid down in the case of Vihaan Kumar (supra) does not stand diluted by the prejudice which is introduced in Sri Darshan (supra). He has also relied on the observations in the case of K. S. Puttuswami V/s. Union of India reported in (2017) 10 SCC 1, wherein it has been observed that though Part-III embodies fundamental rights, this was construed to be part of the wider notion of securing the vision of justice of the founding fathers, and as a matter of doctrine, the rights guaranteed were held not to be capable of being waived. In case of Mihir Rajesh Shah (supra) the Hon’ble Apex Court after reproducing the entire law, upheld the constitutional mandate of grounds of arrest observing that Section 50 of the Code of Criminal Procedure does not provide for a specific mode or time frame for communication of grounds of arrest and held that the Court has laid down guidelines on the mode and manner of supply of grounds of arrest holding that the grounds of arrest will have to be supplied to the detenue in writing at least 2 hours prior to the remand hearing. The prospective application is restricted only to the additional trustworthy safeguard of written supply of grounds of arrest and the time frame of providing written grounds of arrest at least 2 hours prior to the remand.

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While addressing this Court after discussing the judgments of the Hon’ble Apex Court and law laid down in support of grounds of arrest, the learned Senior Advocate has emphasized that this legal position is reaffirmed in the judgment of Mihir Rajesh Shah (supra) and relied on the observations made in paragraphs 52, 53 54, 55, 56 and 58 which are as under:-

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“52. We thus hold, that, in cases where the police are already in possession of documentary material furnishing a cogent basis for the arrest, the written grounds of arrest must be furnished to the arrestee on his arrest. However, in exceptional circumstances such as offences against body or property committed in flagrante delicto, where informing the grounds of arrest in writing on arrest is rendered impractical, it shall be sufficient for the police officer or other person making the arrest to orally convey the same to the person at the time of arrest. Later, a written copy of grounds of arrest must be supplied to the arrested person within a reasonable time and in no event later than two hours prior to production of the arrestee before the magistrate for remand proceedings. The remand papers shall contain the grounds of arrest and in case there is delay in supply thereof, a note indicating a cause for it be included for the information of the magistrate.

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The above indicated lower limit of two hours minimum interval before the production is grounded in the functional necessity so that the right as provided to an arrestee under the Constitution and the statute is safeguarded effectively. This period would ensure that the counsel has adequate time to scrutinize the basis of arrest and gather relevant material to defend the arrestee proficiently and capably while opposing the remand. Any shorter interval may render such preparation illusory, thereby resulting in non-compliance of the constitutional and statutory mandate. The two-hour threshold before production for remand thus strikes a judicious balance between safeguarding the arrestee’s constitutional rights under Article 22(1) and preserving the operational continuity of criminal investigations.

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In view of the above, we hold with regard to the second issue that non supply of grounds of arrest in writing to the arrestee prior to or immediately after arrest would not vitiate such arrest on the grounds of non-compliance with the provisions of Section 50 of the CrPC 1973 (now Section 47 of BNSS 2023) provided the said grounds are supplied in writing within a reasonable

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time and in any case two hours prior to the production of the arrestee before the magistrate for remand proceedings.

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It goes without saying that if the abovesaid schedule for supplying the grounds of arrest in writing is not adhered to, the arrest will be rendered illegal entitling the release of the arrestee. On such release, an application for remand or custody, if required, will be moved along with the reasons and necessity for the same, after the supply of the grounds of arrest in writing setting forth the explanation for non-supply thereof within the above stipulated schedule. On receipt of such an application, the magistrate shall decide the same expeditiously and preferably within a week of submission thereof by adhering to the principles of natural justice. 56. In conclusion, it is held that: i) The constitutional mandate of informing the arrestee the grounds of arrest is mandatory in all offences under all statutes including offences under Penal Code,1860 (now BNS 2023);

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ii) The grounds of arrest must be communicated in writing to the arrestee in the language he/she understands;

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iii) In case(s) where, the arresting officer/person is unable to communicate the grounds of arrest in writing on or soon after arrest, it be so done orally. The said grounds be communicated in writing within a reasonable time and in any case at least two hours prior to production of the arrestee for remand proceedings before the magistrate.

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iv) In case of non-compliance of the above, the arrest and subsequent remand would be rendered illegal and the person will be at liberty to be set free.

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….. 58. We are cognizant that there existed no consistent or binding requirement mandating written communication of the grounds of arrest for all the offences. Holding as above, in our view, would ensure implementation of the constitutional rights provided to an arrestee as engrafted under Article 22 of the

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Constitution of India in an effective manner. Such clarity on obligation would avoid uncertainty in the administration of criminal justice. The ends of fairness and legal discipline therefore demand that this procedure as affirmed above shall govern arrests henceforth.”

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The learned Senior Advocate has stated about the entitlement of bail on this ground. He has also argued that there is no concept of waiver of fundamental right.

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In Criminal Application (BA) Nos.18/2025 and 718/2025 Mr. D.S. Sirpurkar, learned Advocate for the applicants in addition to the arguments of learned Senior Advocate has relied on the extract of speech of Dr. Babasaheb Ambedkar about fundamental rights of a person. He has relied on the judgment in the case of Ram Autar Singh Yadav V/s. The State of Uttar Pradesh and others (Civil Appeal No.13806/2024) in support of his argument that there is no loss of fundamental right for non-exercise thereof and also that there cannot be a waiver of fundamental right.

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Mr. R.P. Joshi, learned Advocate for the applicant in Criminal Application (BA) No.1130/2025 harped upon the applicability of observations made in the case of Mihir Rajesh Shah (supra) being retrospective in nature and not prospective. He has urged that the word “henceforth” is applicable to para 55 wherein the procedure to be adopted if the supplying of grounds of arrest is not adhered, is laid down.

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I have also heard Ms. Sunita Kulkarni with Mr. Chande and Mr. Jaltare, learned Advocates for the applicant in Criminal Application (BA) Nos.808/2025 and 622/2025 and Mr. Mehta, learned Advocate for the appellant in Criminal Appeal No.474/2025.

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Learned Senior Advocate and Public Prosecutor Mr. Chauhan has argued that in observations in the case of Sri Darshan (supra) and Mihir Rajesh Shah (supra) there is a conflict between two judgments and whenever there is conflict between the judgments of the Supreme Court, he has requested to refer this issue before the Hon’ble the Chief Justice for reference. He has formulated the questions of reference. He has stated that correct explanation of law is required to be explained in Mihir Rajesh Shah’s case, as in it the Hon’ble Apex Court has used the word “henceforth”, this issue requires to be referred to the Larger Bench.

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When I have shown disinclination to refer the matter to the Larger Bench and would like to hear on the law laid down by the Hon’ble Apex Court, the learned Public Prosecutor argued that as per the judgment of Mihir Rajesh Shah (supra) it will apply prospectively. There is a presumption in law that the law laid down by the Hon’ble Apex Court will apply prospectively and not retrospectively unless it is specifically mentioned that it will apply retrospectively. The Hon’ble Apex Court has specifically clarified about uncertainty of the declaration regarding manner of conveying reasons and has purposefully observed “henceforth”.

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The learned Public Prosecutor has relied on the judgment of the Hon’ble Apex Court in the case of Kanishk Sinha and another V/s. The State of West Bengal and another reported in 2025 LiveLaw (SC) 259 wherein the Court has placed in reliance on the judgment of Priyanka Srivastava V/s. State of Uttar Pradesh reported in (2015) 6 SCC 287 wherein the observations are made that in order to consider

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the rights of accused, a stage has come in this country which means “prospective”.

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“5. This Court in the above case then also issued directions that a copy of the judgment be sent to all the Chief Justices of the High Courts, who in turn will circulate the said copy to all the Magistrates, so that they remain “more vigilant and diligent while exercising the power under Section 156(3) CrPC”. It is necessary to mark the words in the above-quoted para 30 that “…a stage has come in this country…”, and thus, the above directions could only be prospective. This would signify that what the Court intended was that from now onward it would be necessary that an application would be accompanied by an affidavit.”

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The learned Public Prosecutor Mr. DV Chauhan, has relied on the judgment in the case of Navneen Siyaram Sharma v. State of Maharashtra and others reported in 2025 SCC OnLine Bom 4532. The case sets the stage for examining whether the mandatory requirement of communicating the "grounds of arrest" was fulfilled, and the Court proceeds by applying the legal standard which the Supreme Court has directed to operate henceforth in Mihir Rajesh Shah (supra). In Para 6 the Bench specifically notes that Mihir Rajesh Shah (supra) reiterates the principles in Pankaj Bansal and Prabir Purkayastha while expressly using the term "henceforth", thereby making the strengthened procedural requirement prospective.

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The learned Public Prosecutor placed reliance on the recent judgment of the Hon'ble Supreme Court in Kanishk Sinha and another V/s. State of West Bengal and another reported in 2025 LiveLaw (SC) 259 wherein the Court has authoritatively

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reiterated the settled principle that judicial pronouncements are ordinarily retrospective in operation, unless the judgment itself expressly states that it will apply prospectively.

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It is further submitted that in Ahmed Mansoor (supra) the Supreme Court examined whether the appellants were furnished with the grounds of arrest at the time of apprehension, as mandated under Section 43B of the UAPA. It was argued that the arrest memo and the explanation given at the time of remand constituted sufficient compliance; however, the Supreme Court held that this issue is no longer res integra and found that the High Court had misconstrued earlier binding precedents. The Court clarified that the arrest memo only contained generic "reasons for arrest" and did not furnish the specific "grounds of arrest", which must be personal to the accused and must inform them of the factual basis necessitating arrest so that they may effectively contest remand or seek bail.

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It was argued that the defence is attempting to portray the cyclostyled Section 41B check-list as inadequate, whereas the law does not mandate a detailed narrative of incriminating material at the stage of arrest, and operationally the accused were produced before the jurisdictional court where the grounds and reasons were explained. The learned Public Prosecutor emphasized that even if the memo-enclosed documents dated 09.10.2024 are considered supplementary, they cannot invalidate the arrest, since the Supreme Court in Mihir Rajesh Shah (supra) has clarified that procedural defects do not

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automatically vitiate an arrest unless prejudice is shown. Petitioner cannot seek bail solely on technical grounds.

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I have heard the learned Advocates for the respective parties.

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The requirement of provision to inform the grounds of arrest is to effectively contest the remand or seek bail. In all these cases the applicants/appellant are in jail and after the judgment of the Hon’ble Supreme Court have filed the applications/appeal claiming that there is an infringement of their fundamental right. Law is settled and all the applicants are aware of it but it was not raised since their first remand. In this context the Hon’ble Apex Court in case of Sri Darshan (supra) is very clear. Mere absence of written grounds does not ipso facto make arrest illegal unless it results in demonstrable prejudice or denial of a fair opportunity to defend. It is observed in para 20.1.5 as under:-

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“20.1.5. While Section 50 Cr.P.C is mandatory, the consistent judicial approach has been to adopt a prejudice-oriented test when examining alleged procedural lapses. The mere absence of written grounds does not ipso facto render the arrest illegal, unless it results in demonstrable prejudice or denial of a fair opportunity to defend.”

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In paragraph 20.1.6 there was a reference to the gravity of the offence as an important factor. In para 20.1.7 it was further observed that in absence of demonstrable prejudice said irregularity is at best a curable defect and cannot by itself warrant release on bail. It was further observed that the approach adopted is inconsistent with the settled principle that procedural lapses in furnishing ground of arrest, absent prejudice, do not ipso facto render custody illegal or entitle the

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accused to bail. Paragraph 20.1.7 is important in that context which reads as under:-

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“20.1.7. In the present case, the arrest memos and remand records clearly reflect that the respondents were aware of the reasons for their arrest. They were legally represented from the outset and applied for bail shortly after arrest, evidencing an immediate and informed understanding of the accusations. No material has been placed on record to establish that any prejudice was caused due to the alleged procedural lapse. In the absence of demonstrable prejudice, such as irregularity is, at best, a curable defect and cannot, by itself, warrant release on bail. As reiterated above, the High Court treated it as a determinative factor while overlooking the gravity of the charge under Section 302 IPC and the existence of a prima facie case. Its reliance on Pankaj Bansal and Prabir Purkayastha is misplaced, as those decisions turned on materially different facts and statutory contexts. The approach adopted here is inconsistent with the settled principle that procedural lapses in furnishing grounds of arrest, absent prejudice, do not ipso facto render custody illegal or entitle the accused to bail.”

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In all these cases no such prejudice is shown by the applicants/ appellant.

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The Hon’ble Apex Court in the case of Mihir Rajesh Shah (supra) has clarified that the procedural defects did not automatically vitiate an arrest unless prejudice is shown. Paragraph No.54 of said judgment reads as under:-

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“54. In view of the above, we hold with regard to the second issue that non supply of grounds of arrest in writing to the arrestee prior to or immediately after arrest would not vitiate such arrest on the grounds of non-compliance with the provisions of Section 50 of the CrPC 1973 (now Section 47 of BNSS 2023) provided the said grounds are supplied in writing within a reasonable

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time and in any case two hours prior to the production of the arrestee before the magistrate for remand proceedings.”

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The learned Public Prosecutor urged that the manner of communication is a requirement, is not constitutional text or statute but instead a product of judicial interpretation. As the right is judicially created and procedural in nature the Supreme Court is fully empowered to apply it prospectively. Consequently, the use of word “henceforth” signifies that it will apply after the date of decision, no retrospective effect can be claimed prior to that date.

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Meaning of “henceforth” as per the Black’s Law Dictionary is “ from now ”, “newly enacted rule will apply henceforth” which clearly indicates that this ground will be available after the date of decision and will not apply to earlier cases. Though the law was in existence, after the judgment of Mihir Rajesh Shah (supra) all the accused persons woke up from slumber and started claiming bail on this ground. As it has specifically mentioned “henceforth” it will not apply to earlier matters or only to the procedure as stated in para 55 of said judgment. When the Hon’ble Supreme Court in Mihir Shah consciously used the expression “henceforth” it exercised its power of procedural declaration thereby making the enhanced procedural requirement regarding communication of arrest and such procedure being applicable prospectively only and not to past arrests or proceedings that have already attained finality.

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In view of the abovesaid discussion, all the criminal applications and the criminal appeal filed on this ground are dismissed on this ground only.

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The applications and appeal which are not heard on the ground of delay and on merits are kept for further consideration on 8.1.2026. 32. Criminal Application (BA) No.1130/2025 is finally disposed of.

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(MRS.VRUSHALI V.JOSHI, J.)

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Tambaskar.

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Signed by: MR. N.V. TAMBASKAR Designation: PS To Honourable Judge Date: 12/12/2025 18:17:43

Chandrabhan @ Gulab S/O Dhanraj Kapse v. the State of Maharashtra Thr Senior Police Inspector Ps Ravanwadi Dist Gondia

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Chandrabhan @ Gulab S/O Dhanraj Kapse v. the State of Maharashtra Thr Senior Police Inspector Ps Ravanwadi Dist Gondia

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