Sunday Chukwudi Vs the State of Karnataka

SUNDAY CHUKWUDI S/O. OFOZOR AGED ABOUT 39 YEARS, R/AT: NO.201, 2^ND FLOOR, LAKSHMINIVAS, SUBHASHA CHANDRA BHOSE ROAD, MUNISWAMY LAYOUT, RAYASANDRA, PARAPPANA AGRAHARA, BENGALURU-560099, NATIVE ADDRESS: ANAMBAR STATE, NIGERIA.

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…PETITIONER

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(BY SRI. BALAKRISHNA M.R., ADVOCATE)

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SAMREEN AYUB DESHNUR

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Digitally signed by SAMREEN AYUB DESHNUR Location: HIGH COURT OF KARNATAKA DHARWAD BENCH

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AND:

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THE STATE OF KARNATAKA BY PARAPPANA AGRAHARA POLICE STATION, BENGALURU, REPRESENTED BY ITS STATE PUBLIC PROSECUTOR, HIGH COURT BUILDING, BANGALORE-560 001.

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MR. NAVEEN KUMAR A.V. FATHER'S NAME NOT KNOWN TO THE PETITIONERS, MAJOR IN AGE

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POLICE SUB INSPECTOR, PARAPPANA AGRAHARA POLICE STATION, BENGALURU CITY.

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THE CHIEF SUPERINTENDENT CENTRAL PRISON, PARAPPANA AGARAHARA, BENGALURU-560 100.

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…RESPONDENTS

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(BY SMT. RASHMI JADHAV, ADDL. SPP)

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THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 CRPC (U/S 528 BNSS) BY THE ADVOCATE FOR THE PETITIONER PRAYING TO SET ASIDE THE ORDER OF ARREST DATED 12.07.2024 BY THE RESPONDENT NO.2 PARAPPANA AGRAHARA P.S., BENGALURU CITY AND ORDER OF REMAND DATED 13.07.2024 PASSED BY THE HON’BLE IX ADDITIONAL CHIEF JUDICIAL MAGISTRATE, BENGALURU IN CRIME NO.357/2024 FOR THE OFFENCES PUNISHABLE UNDER SECTIONS 8(C) AND 22(C) OF NDPS ACT, R/W SECTION 14 OF FOREIGNERS ACT, PENDING ON THE FILE OF THE HON’BLE XXXIII ADDL. CITY CIVIL AND SESSIONS JUDGE AND SPECIAL JUDGE FOR NDPS CASES (CCH-33), AT BENGALURU AND SET AT LIBERTY FORTHWITH AND DIRECT THE RESPONDENT NO.3 TO RELEASE/SET AT LIBERTY THE PETITIONER FORTHWITH IN CRIME NO.357/2024, NOW PENDING ON THE FILE OF THE HON’BLE XXXIII ADDL. CITY CIVIL AND SESSIONS JUDGE AND SPECIAL JUDGE FOR NDPS CASES (CCH-33), AT BENGALURU AND PASS SUCH OTHER RELIEF/S AS THIS HON’BLE COURT DEEMS FIT IN THE FACTS AND CIRCUMSTANCES OF THE CASE IN THE INTEREST OF JUSTICE AND EQUITY.

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THIS CRIMINAL PETITION COMING ON FOR ORDERS THIS DAY, ORDER WAS MADE THEREIN AS UNDER:

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CORAM: HON'BLE MR. JUSTICE S.R.KRISHNA KUMAR

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ORAL ORDER

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In this petition, the petitioner seeks following reliefs:

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1. Set aside the order of arrest dated 12.07.2024 by the Respondent No.2 Parappana Agrahara P.S., Bengaluru City and order of remand dated 13.07.2024 passed by the Hon’ble IX Additional Chief Judicial Magistrate, Bengaluru in Crime No.357/2024 for the offences punishable under sections 8(c) and 22(c) of NDPS Act, R/w Section 14 of Foreigners Act, pending on the file of the Hon’ble XXXIII Addl. City Civil and Sessions Judge and Special Judge for NDPS cases (CCH-33), at Bengaluru and set at liberty forthwith;

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2. Direct the Respondent No.3 to release/set at liberty the Petitioner forthwith in Crime No.357/2024, now pending on the file of the Hon’ble XXXIII Addl. City Civil and Sessions Judge and Special Judge for NDPS cases (CCH-33), at Bengaluru;

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3. Pass such other relief/s as this Hon’ble Court deems fit in the facts and circumstances of the case in the interest of justice and equity.

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Heard learned counsel for the petitioner and learned

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Additional State Public Prosecutor for the respondents and perused the material on record.

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A perusal of the material on record will indicate that the petitioner is arraigned as accused No.2 in Crime No.357/2024 registered against the petitioner/accused No.2 and one Sri. Kingsley Nana-accused No.1 for the offences punishable under Sections 8(c) and 22(c) of the Narcotic Drugs and Psychotropic Substances Act, 1985 and Section 14 of the Foreigners Act, 1946. On an earlier occasion, the petitioner/accused No.2, along with the aforesaid Sri. Kingsley Nana/accused No.1, had approached this Court in Crl.P. No.10739/2025 in which the petitioner herein was petitioner No.2, while the aforesaid Sri. Kingsley Nana was petitioner No.1. In the said petition, a memo was filed on behalf of the present petitioner (petitioner No.2 in Crl. P. No.10739/2025) seeking withdrawal of the petition insofar as he was concerned. The said memo was placed on record and, by final order dated 24.07.2025, this Court allowed the aforesaid Crl.P. No.10739/2025 only insofar as accused No.1- Sri. Kingsley Nana was concerned by holding as under:

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In this petition, petitioners have sought for the following reliefs:

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“1. Set aside the order of arrest dated 12.07.2024 by the Respondent No.2 Parappana Agrahara PS, Bengaluru City and order of remand dated 13.07.2024 passed by the Hon'ble IX Chief Judicial Magistrate, Bengaluru in Crime No.357/2024 for the alleged offences punishable u/ss. 8(c), 22(C) of NDPS Act R/w Sec. 14 of Foreigners Act and now pending on the file of the Hon'ble XXXIII Addl. City Civil and Sessions Judge and Special Judge for NDPS cases (CCH-33), at Bengaluru District, Bengaluru and set at liberty forthwith;

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2. Direct the Respondent No.3 to release/set at liberty the Petitioners forthwith in crime No.357/2024, now pending on the file of the Hon’ble XXXIII Addl. City Civil and Sessions Judge & Special Judge for NDPS cases (CCH-33), at Bengaluru;

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3. Pass such other relief/s as this Hon'ble Court deems fit in the facts and circumstances of the case in the interest of justice and equity.”

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Heard learned counsel for the petitioners and learned HCGP for respondents - State and perused the material on record. For the order proposed, notice to defacto complainant is dispensed with.

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Learned counsel for the petitioners while filing a Memo for withdrawal submits that he may be permitted to withdraw this petition qua petitioner No.2 since there is another petition pending qua petitioner No.2 before this Hon’ble Court seeking for the same reliefs as sought for in this petition. The said Memo is placed on record.

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In addition to reiterating the various contentions urged in the petition and referring to the material on record, learned counsel for the petitioners invited my attention to the material on record in order to point out that the requisite grounds of arrest as mandated under Article 22(1) of the Constitution of India as well as Sections 47 and 48 of BNSS, 2023 (Section 50 and 50A of Cr.P.C.) and Section 52 of the NDPS Act had not been issued either to the petitioner no.1 and/or to his relatives, friends and nominees / disclosed persons and in the light of the decisions of the Apex Court in the cases of Pankaj Bansal Vs. Union of India – (2024) 7 SCC 576, Prabir Purkayastha Vs. State (NCT of Delhi) – (2024) 8 SCC 254, Vihaan Kumar Vs. State of Haryana – 2025 INSC 162 and Kasireddy Upender Reddy vs. State of Andhra Pradesh & others – 2025 INSC 768, the impugned arrest and remand of the petitioner No.1 to the judicial custody be quashed and concerned respondents be directed to release the petitioner No.1, especially when the grounds of arrest as required under Section 52 of NDPS Act, which mandates furnishing of grounds of arrest had not been complied with by the respondents.

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Learned HCGP for respondents submits that grounds of arrest were not furnished / communicated to the petitioner No.1 as required in law and necessary orders in the instant case may be passed by this Court and liberty may be reserved in favour of the respondents – State to initiate appropriate action against the petitioner

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No.1 under the Foreigners Act, Passports Act etc., and in accordance with law.

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At this juncture, it would be necessary to extract the relevant provisions under the Constitution of India, BNSS 2023 and NDPS Act.

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Article 22(1) of the Constitution of India reads as under:-

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“22. Protection against arrest and detention in certain cases -

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(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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Sections 47 and 48 of BNSS, 2023 reads as under:-

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“ Section 47. Person arrested to be informed of grounds of arrest and of right to bail.

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(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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“Section 48. Obligation of person making arrest to inform about arrest, etc., to relative or friend.

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(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

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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 subsection (2) and sub-section (3) have been complied with in respect of such arrested person.”

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Section 52 of the NDPS Act reads as under:-

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“ 52. Disposal of persons arrested and articles seized.—

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(1) Any officer arresting a person under section 41, section 42, section 43 or section 44 shall, as soon as may be, inform him of the grounds for such arrest.

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(2) Every person arrested and article seized under warrant issued under sub-section (1) of section 41 shall be forwarded without unnecessary delay to the Magistrate by whom the warrant was issued.

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(3) Every person arrested and article seized under sub-section (2) of section 41, section 42, section 43 or section 44 shall be forwarded without unnecessary delay to—

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(a) the officer-in-charge of the nearest police station, or

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(b) the officer empowered under section 53.

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(4) The authority or officer to whom any person or article is forwarded under sub-section (2) or sub- section (3) shall, with all convenient despatch, take such measures as may be necessary for the disposal according to law of such person or article.”

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7. In Vihaan Kumar’s case supra, the Apex Court held as under:-

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“14. In the said decision, this Court in paras 42 and 43 observed [Pankaj Bansal v. Union of India, (2024) 7 SCC 576 : (2024) 3 SCC (Cri) 450] thus : (Pankaj Bansal case [Pankaj Bansal v. Union of India, (2024) 7 SCC 576 : (2024) 3 SCC (Cri) 450] , SCC p. 597)

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“42. That being so, there is no valid reason as to why a copy of such written grounds of arrest should not be furnished to the arrested person as a matter of course and without exception. There are two primary reasons as to why this would be the advisable course of action to be followed as a matter of principle. Firstly, in the event such grounds of arrest are orally read out to the arrested person or read by such person with nothing further and this fact is disputed in a given case, it may boil down to the word of the arrested person against the word of the authorised officer as to whether or not there is due and proper compliance in this regard. In the case on hand, that is the situation insofar as Basant Bansal is concerned. Though ED claims that witnesses were present and certified that the grounds of arrest were read out and explained to him in Hindi, that is neither here nor there as he did not sign the document. Non-compliance in this regard would entail release of the arrested person straightaway, as held in V. Senthil Balaji [V. Senthil Balaji v. State, (2024) 3 SCC 51 : (2024) 2 SCC (Cri) 1]. Such a precarious situation is easily avoided and the consequence thereof can be obviated very simply by furnishing the written grounds of arrest, as recorded by the authorised officer in terms of Section 19(1) PMLA, to the arrested person under due acknowledgment, instead of leaving it to the debatable ipse dixit of the authorised officer.

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43. The second reason as to why this would be the proper course to adopt is the constitutional objective underlying such

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information being given to the arrested person. Conveyance of this information is not only to apprise the arrested person of why he/she is being arrested but also to enable such person to seek legal counsel and, thereafter, present a case before the court under Section 45 to seek release on bail, if he/she so chooses. In this regard, the grounds of arrest in V. Senthil Balaji [V. Senthil Balaji v. State, (2024) 3 SCC 51 : (2024) 2 SCC (Cri) 1] are placed on record and we find that the same run into as many as six pages. The grounds of arrest recorded in the case on hand in relation to Pankaj Bansal and Basant Bansal have not been produced before this Court, but it was contended that they were produced at the time of remand. However, as already noted earlier, this did not serve the intended purpose. Further, in the event their grounds of arrest were equally voluminous, it would be well-nigh impossible for either Pankaj Bansal or Basant Bansal to record and remember all that they had read or heard being read out for future recall so as to avail legal remedies. More so, as a person who has just been arrested would not be in a calm and collected frame of mind and may be utterly incapable of remembering the contents of the grounds of arrest read by or read out to him/her. The very purpose of this constitutional and statutory protection would be rendered nugatory by permitting the authorities concerned to merely read out or permit reading of the grounds of arrest, irrespective of their length and detail, and claim due compliance with the constitutional requirement under Article 22(1) and the statutory mandate under Section 19(1) PMLA.”

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(emphasis supplied)

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15. The view taken in Pankaj Bansal [Pankaj Bansal v. Union of India, (2024) 7 SCC 576 : (2024) 3 SCC (Cri) 450] was reiterated by this Court in Prabir Purkayastha [Prabir Purkayastha v. State (NCT of Delhi), (2024) 8 SCC 254 : (2024) 3 SCC (Cri) 573] . In paras 28 and 29, this Court held thus:(Prabir

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Purkayastha case [Prabir Purkayastha v. State (NCT of Delhi), (2024) 8 SCC 254 : (2024) 3 SCC (Cri) 573] , SCC p. 278)

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“28. The language used in Article 22(1) and Article 22(5) of the Constitution of India regarding the communication of the grounds is exactly the identical. Neither of the constitutional provisions require that the “grounds” of “arrest” or “detention”, as the case may be, must be communicated in writing. Thus, interpretation to this important facet of the fundamental right as made by the Constitution Bench while examining the scope of Article 22(5) of the Constitution of India would ipso facto apply to Article 22(1) of the Constitution of India insofar as the requirement to communicate the grounds of arrest is concerned. 29. Hence, we have no hesitation in reiterating that the requirement to communicate the grounds of arrest or the grounds of detention in writing to a person arrested in connection with an offence or a person placed under preventive detention as provided under Articles 22(1) and 22(5) of the Constitution of India is sacrosanct and cannot be breached under any situation. Non-compliance of this constitutional requirement and statutory mandate would lead to the custody or the detention being rendered illegal, as the case may be.”

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(emphasis supplied)

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16 . This Court held that the language used in Articles 22(1) and 22(5) regarding communication of the grounds is identical, and therefore, this Court held that interpretation of Article 22(5) made by the Constitution Bench in Harikisan v. State of Maharashtra [Harikisan v. State of Maharashtra, 1962 SCC OnLine SC 117] , shall ipso facto apply to Article 22(1) of the Constitution of India insofar as the requirement to communicate the ground of arrest is concerned. We may also note here that in para 21, in Prabir Purkayastha [Prabir Purkayastha v. State (NCT of Delhi),

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(2024) 8 SCC 254 : (2024) 3 SCC (Cri) 573] , this Court also dealt with the effect of violation of Article 22(1) by holding that any infringement of this fundamental right would vitiate the process of arrest and remand. Para 21 reads thus : (Prabir Purkayastha case [Prabir Purkayastha v. State (NCT of Delhi), (2024) 8 SCC 254 : (2024) 3 SCC (Cri) 573] , SCC p. 276)

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“21. The right to be informed about the grounds of arrest flows from Article 22(1) of the Constitution of India and any infringement of this fundamental right would vitiate the process of arrest and remand. Mere fact that a charge-sheet has been filed in the matter, would not validate the illegality and the unconstitutionality committed at the time of arresting the accused and the grant of initial police custody remand to the accused.”

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(emphasis supplied)

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17. In Lallubhai Jogibhai Patel v. Union of India [Lallubhai Jogibhai Patel v. Union of India, (1981) 2 SCC 427 : 1981 SCC (Cri) 463 : (1982) 52 Comp Cas 543] , in para 20, this Court held thus : (SCC p. 436)

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“20. It is an admitted position that the detenu does not know English. The grounds of detention, which were served on the detenu, have been drawn up in English. It is true that Shri C.L. Antali, Police Inspector, who served the grounds of detention on the detenu, has filed an affidavit stating that he had fully explained the grounds of detention in Gujarati to the detenu. But, that is not a sufficient compliance with the mandate of Article 22(5) of the Constitution, which requires that the grounds of detention must be “communicated” to the detenu. “Communicate” is a strong word. It means that sufficient knowledge of the basic facts constituting the “grounds” should be imparted effectively and fully to the detenu in writing in a language which he understands. The whole purpose of

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communicating the “ground” to the detenu is to enable him to make a purposeful and effective representation. If the “grounds” are only verbally explained to the detenu and nothing in writing is left with him, in a language which he understands, then that purpose is not served, and the constitutional mandate in Article 22(5) is infringed. If any authority is needed on this point, which is so obvious from Article 22(5), reference may be made to the decisions of this Court in Harikisan v. State of Maharashtra [Harikisan v. State of Maharashtra, 1962 SCC OnLine SC 117] and Hadibandhu Das v. DistrictMagistrate, Cuttack [Hadibandhu Das v. District Magistrate, Cuttack, 1968 SCC OnLine SC 136] .”

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(emphasis supplied)

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18. Therefore, as far as Article 22(1) is concerned, compliance can be made by communicating sufficient knowledge of the basic facts constituting the grounds of arrest to the person arrested. The grounds should be effectively and fully communicated to the arrestee in the manner in which he will fully understand the same. Therefore, it follows that the grounds of arrest must be informed in a language which the arrestee understands. That is how, in Pankaj Bansal [Pankaj Bansal v. Union of India, (2024) 7 SCC 576 : (2024) 3 SCC (Cri) 450] , this Court held that the mode of conveying the grounds of arrest must necessarily be meaningful so as to serve the intended purpose. However, under Article 22(1), there is no requirement of communicating the grounds of arrest in writing. Article 22(1) also incorporates the right of every person arrested to consult an advocate of his choice and the right to be defended by an advocate. If the grounds of arrest are not communicated to the arrestee, as soon as may be, he will not be able to effectively exercise the

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right to consult an advocate. This requirement incorporated in Article 22(1) also ensures that the grounds for arresting the person without a warrant exist. Once a person is arrested, his right to liberty under Article 21 is curtailed. When such an important fundamental right is curtailed, it is necessary that the person concerned must understand on what grounds he has been arrested. That is why the mode of conveying information of the grounds must be meaningful so as to serve the objects stated above.

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19. Thus, the requirement of informing the person arrested of the grounds of arrest is not a formality but a mandatory constitutional requirement. Article 22 is included in Part III of the Constitution under the heading of Fundamental Rights. Thus, it is the fundamental right of every person arrested and detained in custody to be informed of the grounds of arrest as soon as possible. If the grounds of arrest are not informed as soon as may be after the arrest, it would amount to a violation of the fundamental right of the arrestee guaranteed under Article 22(1). It will also amount to depriving the arrestee of his liberty. The reason is that, as provided in Article 21, no person can be deprived of his liberty except in accordance with the procedure established by law. The procedure established by law also includes what is provided in Article 22(1). Therefore, when a person is arrested without a warrant, and the grounds of arrest are not informed to him, as soon as may be, after the arrest, it will amount to a violation of his fundamental right guaranteed under Article 21 as well. In a given case, if

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the mandate of Article 22 is not followed while arresting a person or after arresting a person, it will also violate fundamental right to liberty guaranteed under Article 21, and the arrest will be rendered illegal. On the failure to comply with the requirement of informing grounds of arrest as soon as may be after the arrest, the arrest is vitiated. Once the arrest is held to be vitiated, the person arrested cannot remain in custody even for a second.

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20. We have already referred to what is held in paras 42 and 43 of the decision in Pankaj Bansal [Pankaj Bansal v. Union of India, (2024) 7 SCC 576 : (2024) 3 SCC (Cri) 450] . This Court has suggested that the proper and ideal course of communicating the grounds of arrest is to provide grounds of arrest in writing. Obviously, before a police officer communicates the grounds of arrest, the grounds of arrest have to be formulated. Therefore, there is no harm if the grounds of arrest are communicated in writing. Although there is no requirement to communicate the grounds of arrest in writing, what is stated in paras 42 and 43 of the decision in Pankaj Bansal [Pankaj Bansal v. Union of India, (2024) 7 SCC 576 : (2024) 3 SCC (Cri) 450] are suggestions that merit consideration. We are aware that in every case, it may not be practicable to implement what is suggested. If the course, as suggested, is followed, the controversy about the non-compliance will not arise at all. The police have to balance the rights of a person arrested with the interests of the society. Therefore, the police should always scrupulously comply

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with the requirements of Article 22.

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21. An attempt was made by the learned Senior Counsel appearing for the first respondent to argue that after his arrest, the appellant was repeatedly remanded to custody, and now a charge-sheet has been filed. His submission is that now, the custody of the appellant is pursuant to the order taking cognizance passed on the charge-sheet. Accepting such arguments, with great respect to the learned Senior Counsel, will amount to completely nullifying Articles 21 and 22(1) of the Constitution. Once it is held that arrest is unconstitutional due to violation of Article 22(1), the arrest itself is vitiated. Therefore, continued custody of such a person based on orders of remand is also vitiated. Filing a charge-sheet and order of cognizance will not validate an arrest which is per se unconstitutional, being violative of Articles 21 and 22(1) of the Constitution of India. We cannot tinker with the most important safeguards provided under Article 22.

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22. Another argument canvassed on behalf of the respondents is that even if the appellant is released on the grounds of violating Article 22, the first respondent can arrest him again. At this stage, it is not necessary to decide the issue.

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23. In the present case, the first respondent relied upon an entry in the case diary allegedly made at 6.10 p.m. on 10-6-2024, which records that the appellant was arrested after informing him of the grounds of arrest. For the reasons which will follow hereafter, we are rejecting the argument made by the first respondent. If the police

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want to prove communication of the grounds of arrest only based on a diary entry, it is necessary to incorporate those grounds of arrest in the diary entry or any other document. The grounds of arrest must exist before the same are informed. Therefore, in a given case, even assuming that the case of the police regarding requirements of Article 22(1) of the Constitution is to be accepted based on an entry in the case diary, there must be a contemporaneous record, which records what the grounds of arrest were. When an arrestee pleads before a court that grounds of arrest were not communicated, the burden to prove the compliance of Article 22(1) is on the police.

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24. An argument was sought to be canvassed that in view of sub-section (1) of Section 50CrPC, there is an option to communicate to the person arrested full particulars of the offence for which he is arrested or the other grounds for the arrest. Section 50 cannot have the effect of diluting the requirement of Article 22(1). If held so, Section 50 will attract the vice of unconstitutionality. Section 50 lays down the requirement of communicating the full particulars of the offence for which a person is arrested to him. The “other grounds for such arrest” referred to in Section 50(1) have nothing to do with the grounds of arrest referred to in Article 22(1). The requirement of Section 50 is in addition to what is provided in Article 22(1). Section 47 of the BNSS is the corresponding provision. Therefore, what we have held about Section 50 will apply to Section 47 of the BNSS.

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25. When an arrested person is produced before a

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Judicial Magistrate for remand, it is the duty of the Magistrate to ascertain whether compliance with Article 22(1) has been made. The reason is that due to noncompliance, the arrest is rendered illegal; therefore, the arrestee cannot be remanded after the arrest is rendered illegal. It is the obligation of all the courts to uphold the fundamental rights.

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Conclusions

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26. Therefore, we conclude:

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26.1. The requirement of informing a person arrested of grounds of arrest is a mandatory requirement of Article 22(1);

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26.2. The information of the grounds of arrest must be provided to the arrested person in such a manner that sufficient knowledge of the basic facts constituting the grounds is imparted and communicated to the arrested person effectively in the language which he understands. The mode and method of communication must be such that the object of the constitutional safeguard is achieved;

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26.3. When arrested accused alleges noncompliance with the requirements of Article 22(1), the burden will always be on the investigating officer/agency to prove compliance with the requirements of Article 22(1);

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26.4. Non-compliance with Article 22(1) will be a violation of the fundamental rights of the accused guaranteed by the said Article. Moreover, it will amount to

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a violation of the right to personal liberty guaranteed by Article 21 of the Constitution. Therefore, non-compliance with the requirements of Article 22(1) vitiates the arrest of the accused. Hence, further orders passed by a criminal court of remand are also vitiated. Needless to add that it will not vitiate the investigation, charge-sheet and trial. But, at the same time, filing of charge-sheet will not validate a breach of constitutional mandate under Article 22(1);

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26.5. When an arrested person is produced before a Judicial Magistrate for remand, it is the duty of the Magistrate to ascertain whether compliance with Article 22(1) and other mandatory safeguards has been made; and

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26.6. When a violation of Article 22(1) is established, it is the duty of the court to forthwith order the release of the accused. That will be a ground to grant bail even if statutory restrictions on the grant of bail exist. The statutory restrictions do not affect the power of the court to grant bail when the violation of Articles 21 and 22 of the Constitution is established.

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N. KOTISWAR SINGH, J. (supplementing)—

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41. The issue on the requirement of communication of grounds of arrest to the person arrested, as mandated under Article 22(1) of the Constitution of India, which has also been incorporated in the Prevention of Money Laundering Act, 2002 under Section 19 thereof has been succinctly reiterated in this judgment. The constitutional mandate of informing the grounds of arrest to the person

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arrested in writing has been explained in Pankaj Bansal [Pankaj Bansal v. Union of India, (2024) 7 SCC 576 : (2024) 3 SCC (Cri) 450] so as to be meaningful to serve the intended purpose which has been reiterated in Prabir Purkayastha [Prabir Purkayastha v. State (NCT of Delhi), (2024) 8 SCC 254 : (2024) 3 SCC (Cri) 573] . The said constitutional mandate has been incorporated in the statute under Section 50CrPC (Section 47 of the BNSS). It may also be noted that the aforesaid provision of requirement for communicating the grounds of arrest, to be purposeful, is also required to be communicated to the friends, relatives or such other persons of the accused as may be disclosed or nominated by the arrested person for the purpose of giving such information as provided under Section 50-ACrPC. As may be noted, this is in the addition of the requirement as provided under Section 50(1)CrPC.

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42. The purpose of inserting Section 50-ACrPC, making it obligatory on the person making arrest to inform about the arrest to the friends, relatives or persons nominated by the arrested person, is to ensure that they would be able to take immediate and prompt actions to secure the release of the arrested person as permissible under the law. The arrested person, because of his detention, may not have immediate and easy access to the legal process for securing his release, which would otherwise be available to the friends, relatives and such nominated persons by way of engaging lawyers, briefing them to secure release of the detained person on bail at the earliest. Therefore, the purpose of communicating the

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grounds of arrest to the detenue, and in addition to his relatives as mentioned above is not merely a formality but to enable the detained person to know the reasons for his arrest but also to provide the necessary opportunity to him through his relatives, friends or nominated persons to secure his release at the earliest possible opportunity for actualising the fundamental right to liberty and life as guaranteed under Article 21 of the Constitution. Hence, the requirement of communicating the grounds of arrest in writing is not only to the arrested person, but also to the friends, relatives or such other person as may be disclosed or nominated by the arrested person, so as to make the mandate of Article 22(1) of the Constitution meaningful and effective failing which, such arrest may be rendered illegal.”

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8. In Kasireddy Upender Reddy’s case supra, the

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Apex Court held as under:-

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“15. The pathbreaking judgment of this Court in the case of Vihaan Kumar v. State of Haryana, 2025 SCC OnLine SC 269 serves as a pivotal reference point in Indian jurisprudence regarding the rights of individuals upon arrest. The judgment in Vihan Kumar (supra) has profound implications for the enforcement of Article 22 of the Constitution across the country. It underscores the judiciary's commitment to upholding constitutional protections against arbitrary arrest and detention. This decision sets a clear precedent that the investigating agency/police officer/authorities effecting arrest of any person in connection with any cognizable offence without a warrant must provide specific, actionable reasons for an individual's arrest, beyond citing broad provisions of law. A clear dictum has been laid in Vihaan Kumar (supra) that the law enforcement agencies must exercise greater diligence in communicating the precise grounds of

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arrest in order to avoid unlawful detention claims. The decision further reinforces the right to legal recourse through habeas corpus petitions, empowering individuals to challenge the legality of their detention effectively.

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16. In Vihaan Kumar (supra), this Court eruditely speaking through Justice Abhay S. Oka made some very important observations which we must reproduce as under:

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“Therefore, as far as Article 22(1) is concerned, compliance can be made by communicating sufficient knowledge of the basic facts constituting the grounds of arrest to the person arrested. The grounds should be effectively and fully communicated to the arrestee in the manner in which he will fully understand the same. Therefore, it follows that the grounds of arrest must be informed in a language which the arrestee understands. That is how, in the case of Pankaj Bansal v. Union of India, (2024) 7 SCC 576, this Court held that the mode of conveying the grounds of arrest must necessarily be meaningful so as to serve the intended purpose. However, under Article 22(1), there is no requirement of communicating the grounds of arrest in writing. Article 22(1) also incorporates the right of every person arrested to consult an advocate of his choice and the right to be defended by an advocate. If the grounds of arrest are not communicated to the arrestee, as soon as may be, he will not be able to effectively exercise the right to consult an advocate. This requirement incorporated in Article 22(1) also ensures that the grounds for arresting the person without a warrant exist. Once a person is arrested, his right to liberty under Article 21 is curtailed. When such an important fundamental right is curtailed, it is necessary that the person concerned must understand on what grounds he has been arrested. That is why the mode of conveying information of the grounds must be meaningful so as to serve the objects stated above.

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14. Thus, the requirement of informing the person arrested of the grounds of arrest is not a formality but a mandatory constitutional requirement. Article 22 is included in Part III of the Constitution under the heading of Fundamental Rights. Thus, it is the fundamental right

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of every person arrested and detained in custody to be informed of the grounds of arrest as soon as possible. If the grounds of arrest are not informed as soon as may be after the arrest, it would amount to a violation of the fundamental right of the arrestee guaranteed under Article 22(1). It will also amount to depriving the arrestee of his liberty. The reason is that, as provided in Article 21, no person can be deprived of his liberty except in accordance with the procedure established by law. The procedure established by law also includes what is provided in Article 22(1). Therefore, when a person is arrested without a warrant, and the grounds of arrest are not informed to him, as soon as may be, after the arrest, it will amount to a violation of his fundamental right guaranteed under Article 21 as well. In a given case, if the mandate of Article 22 is not followed while arresting a person or after arresting a person, it will also violate fundamental right to liberty guaranteed under Article 21, and the arrest will be rendered illegal. On the failure to comply with the requirement of informing grounds of arrest as soon as may be after the arrest, the arrest is vitiated. Once the arrest is held to be vitiated, the person arrested cannot remain in custody even for a second.

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15. We have already referred to what is held in paragraphs 42 and 43 of the decision in the case of Pankaj Bansal (supra). This Court has suggested that the proper and ideal course of communicating the grounds of arrest is to provide grounds of arrest in writing. Obviously, before a police officer communicates the grounds of arrest, the grounds of arrest have to be formulated. Therefore, there is no harm if the grounds of arrest are communicated in writing. Although there is no requirement to communicate the grounds of arrest in writing, what is stated in paragraphs 42 and 43 of the decision in the case of Pankaj Bansal¹ are suggestions that merit consideration. We are aware that in every case, it may not be practicable to implement what is suggested. If the course, as suggested, is followed, the controversy about the non-compliance will not arise at all. The police have to balance the rights of a person arrested with the interests of the society. Therefore, the police should always scrupulously comply with the requirements of Article 22.

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16. An attempt was made by learned Senior counsel appearing for 1^st respondent to argue that after his arrest, the appellant was repeatedly remanded to custody, and now a chargesheet has been filed. His submission is that now, the custody of the appellant is pursuant to the order taking cognizance passed on the charge sheet. Accepting such arguments, with great respect to the learned senior counsel, will amount to completely nullifying Articles 21 and 22(1) of the Constitution. Once it is held that arrest is unconstitutional due to violation of Article 22(1), the arrest itself is vitiated. Therefore, continued custody of such a person based on orders of remand is also vitiated. Filing a charge sheet and order of cognizance will not validate an arrest which is per se unconstitutional, being violative of Articles 21 and 22(1) of the Constitution of India. We cannot tinker with the most important safeguards provided under Article 22.

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17. Another argument canvassed on behalf of the respondents is that even if the appellant is released on the grounds of violating Article 22, the first respondent can arrest him again. At this stage, it is not necessary to decide the issue.

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18. In the present case, 1^st respondent relied upon an entry in the case diary allegedly made at 6.10 p.m. on 10^th June 2024, which records that the appellant was arrested after informing him of the grounds of arrest. For the reasons which will follow hereafter, we are rejecting the argument made by the 1^st respondent. If the police want to prove communication of the grounds of arrest only based on a diary entry, it is necessary to incorporate those grounds of arrest in the diary entry or any other document. The grounds of arrest must exist before the same are informed. Therefore, in a given case, even assuming that the case of the police regarding requirements of Article 22(1) of the Constitution is to be accepted based on an entry in the case diary, there must be a contemporaneous record, which records what the grounds of arrest were. When an arrestee pleads before a Court that grounds of arrest

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were not communicated, the burden to prove the compliance of Article 22(1) is on the police.

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19. An argument was sought to be canvassed that in view of sub-Section (1) of Section 50 of CrPC, there is an option to communicate to the person arrested full particulars of the offence for which he is arrested or the other grounds for the arrest. Section 50 cannot have the effect of diluting the requirement of Article 22(1). If held so, Section 50 will attract the vice of unconstitutionality. Section 50 lays down the requirement of communicating the full particulars of the offence for which a person is arrested to him. The ‘other grounds for such arrest’ referred to in Section 50(1) have nothing to do with the grounds of arrest referred to in Article 22(1). The requirement of Section 50 is in addition to what is provided in Article 22(1). Section 47 of the BNSS is the corresponding provision. Therefore, what we have held about Section 50 will apply to Section 47 of the BNSS.

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20. When an arrested person is produced before a Judicial Magistrate for remand, it is the duty of the Magistrate to ascertain whether compliance with Article 22(1) has been made. The reason is that due to non- compliance, the arrest is rendered illegal; therefore, the arrestee cannot be remanded after the arrest is rendered illegal. It is the obligation of all the Courts to uphold the fundamental rights.

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CONCLUSIONS

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21. Therefore, we conclude:

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a) The requirement of informing a person arrested of grounds of arrest is a mandatory requirement of Article 22(1);

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b) The information of the grounds of arrest must be provided to the arrested person in such a manner that sufficient knowledge of the basic facts constituting the grounds is imparted and communicated to the arrested person effectively in the language which he understands. The mode and method of communication must be such that the

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object of the constitutional safeguard is achieved;

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c) When arrested accused alleges noncompliance with the requirements of Article 22(1), the burden will always be on the Investigating Officer/Agency to prove compliance with the requirements of Article 22(1);

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d) Non-compliance with Article 22(1) will be a violation of the fundamental rights of the accused guaranteed by the said Article. Moreover, it will amount to a violation of the right to personal liberty guaranteed by Article 21 of the Constitution. Therefore, non- compliance with the requirements of Article 22(1) vitiates the arrest of the accused. Hence, further orders passed by a criminal court of remand are also vitiated. Needless to add that it will not vitiate the investigation, charge sheet and trial. But, at the same time, filing of chargesheet will not validate a breach of constitutional mandate under Article 22(1);

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e) When an arrested person is produced before a Judicial Magistrate for remand, it is the duty of the Magistrate to ascertain whether compliance with Article 22(1) and other mandatory safeguards has been made; and

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f) When a violation of Article 22(1) is established, it is the duty of the court to forthwith order the release of the accused. That will be a ground to grant bail even if statutory restrictions on the grant of bail exist. The statutory restrictions do not affect the power of the court to grant bail when the violation of Articles 21 and 22 of the Constitution is established.”

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(Emphasis supplied)

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17. Justice N. Kotiswar Singh while fully concurring with the views expressed by Justice Abhay S. Oka added a few lines of his own as under:

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“ 2. The issue on the requirement of communication of grounds of arrest to the person arrested, as mandated under Article 22(1) of the Constitution of India, which has also been

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incorporated in the Prevention of Money Laundering Act, 2002 under Section 19 thereof has been succinctly reiterated in this judgment. The constitutional mandate of informing the grounds of arrest to the person arrested in writing has been explained in the case of Pankaj Bansal (supra) so as to be meaningful to serve the intended purpose which has been reiterated in Prabir Purkayastha (supra). The said constitutional mandate has been incorporated in the statute under Section 50 of the CrPC (Section 47 of BNSS). It may also be noted that the aforesaid provision of requirement for communicating the grounds of arrest, to be purposeful, is also required to be communicated to the friends, relatives or such other persons of the accused as may be disclosed or nominated by the arrested person for the purpose of giving such information as provided under Section 50A of the CrPC. As may be noted, this is in the addition of the requirement as provided under Section 50(1) of the CrPC.

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3. The purpose of inserting Section 50A of the CrPC, making it obligatory on the person making arrest to inform about the arrest to the friends, relatives or persons nominated by the arrested person, is to ensure that they would able to take immediate and prompt actions to secure the release of the arrested person as permissible under the law. The arrested person, because of his detention, may not have immediate and easy access to the legal process for securing his release, which would otherwise be available to the friends, relatives and such nominated persons by way of engaging lawyers, briefing them to secure release of the detained person on bail at the earliest. Therefore, the purpose of communicating the grounds of arrest to the detenue, and in addition to his relatives as mentioned above is not merely a formality but to enable the detained person to know the reasons for his arrest but also to provide the necessary opportunity to him through his relatives, friends or nominated persons to secure his release at the earliest possible opportunity for actualising the fundamental right to liberty and life as guaranteed under Article 21 of the Constitution. Hence, the requirement of communicating the

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grounds of arrest in writing is not only to the arrested person, but also to the friends, relatives or such other person as may be disclosed or nominated by the arrested person, so as to make the mandate of Article 22(1) of the Constitution meaningful and effective failing which, such arrest may be rendered illegal.”

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(Emphasis supplied)

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18. Thus, the following principles of law could be said to have been laid down, rather very well explained, in Vihaan Kumar (supra):

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a) The requirement of informing the person arrested of the grounds of arrest is not a formality but a mandatory constitutional condition.

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b) Once a person is arrested, his right to liberty under Article 21 is curtailed. When such an important fundamental right is curtailed, it is necessary that the person concerned must understand on what grounds he has been arrested.

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c) The mode of conveying the information of the grounds of arrest must be meaningful so as to serve the true object underlying Article 22(1).

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d) If the grounds of arrest are not informed as soon as may be after the arrest, it would amount to a violation of the fundamental right of the arrestee guaranteed under Article 22(1).

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e) On the failure to comply with the requirement of informing the grounds of arrest as soon as may be after the arrest, the arrest would stand vitiated. Once the arrest is held to be vitiated, the person arrested cannot remain in custody even for a second.

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f) If the police want to prove communication of the grounds of arrest only based on a diary entry, it is necessary to incorporate those grounds of arrest in the diary entry or any other document. The grounds of arrest must exist before the same are informed.

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g) When an arrestee pleads before a court that the grounds of arrest were not communicated, the burden to prove the compliance of Article 22(1) is on the police authorities.

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h) The grounds of arrest should not only be provided to the arrestee but also to his family members and

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relatives so that necessary arrangements are made to secure the release of the person arrested at the earliest possible opportunity so as to make the mandate of Article 22(1) meaningful and effective, failing which, such arrest may be rendered illegal.

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19. We must clarify one important aspect of Vihaan Kumar (supra). In Vihaan Kumar (supra) the case was that there was an absolute failure on the part of the police to provide the grounds of arrest. In Vihaan Kumar (supra) reliance was placed upon the entry in the case diary which recorded that the appellant therein was arrested after informing him of the grounds of arrest. In the case at hand, it is not in dispute that the grounds of arrest were supplied to the arrestee, however, the case put up is that those grounds are not meaningful and are bereft of necessary essential information.”

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9. A perusal of the material on record will indicate that in the instant case, grounds of arrest have not been furnished or communicated to the petitioner No. 1 and / or to his relatives, friends etc., as required in law and in the light of the principles enunciated in the aforesaid judgments and constitutional / statutory provisions, I am of the view that the petition deserves to be allowed and petitioner No.1 is entitled to be released from custody by imposing certain conditions.

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10. In the result, I pass the following:-

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ORDER

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(i) Petition insofar as petitioner No.1 is concerned is hereby allowed.

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(ii) In view of the memo, petition insofar as petitioner No.2 is concerned is hereby dismissed as withdrawn.

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(iii) The impugned arrest of the petitioner No.1 on 12.07.2024 in Crime No.357/2024 and consequential remand order dated 13.07.2024 passed by the XI Additional Chief Judicial Magistrate, Bengaluru, are hereby quashed.

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(iv) The respondents as well as the concerned Jail Authorities are directed to release the petitioner No.1 forthwith and immediately upon a receipt of a copy of this order, subject to the following conditions:

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a) The petitioner No.1 shall not directly or indirectly threaten or tamper with the evidence, witnesses etc., of the respondents;

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b) The petitioner No.1 shall not involve in similar offences in future;

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c) The petitioner No.1 shall co-operate with the investigation;

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d) The petitioner No.1 shall not leave the jurisdiction of this Court without the prior permission of the Court;

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e) The petitioner No.1 shall execute a personal bond for a sum of Rs.1,00,000/- with one surety for the likesum to the satisfaction of the Trial Court within a period of two weeks from the date of his release.

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f) The petitioner No.1 shall produce his address / identity proof before the Jail authorities at the time of his release.

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g) The petitioner No.1 shall mark his attendance before the SHO of the jurisdictional police station between 10.00 a.m. and 02.00 p.m., once in two weeks.

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h) Liberty is reserved in favour of the prosecution as well as the Trial Court to take appropriate action against the petitioner No.1 including revocation of this order, in the event he violates any of the terms and conditions mentioned above.

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Liberty is reserved in favour of the respondents – State to initiate appropriate action against the petitioner No.1 under the Foreigners Act, Passports Act etc., and in accordance with law.

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Registry is directed to communicate this order to the respondents as well as the concerned Jail Authorities forthwith without any delay both electronically and telephonically to enable immediate implementation of this order.

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Hand delivery of this order is permitted.

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As can be seen from paragraph-3 of the aforesaid order, the present petitioner herein, who was petitioner No.2 in the said petition, withdrew the petition insofar as he was concerned, and in the light of the aforesaid order passed in relation to accused No.1-Sri. Kingsley Nana, by applying/invoking the doctrine of parity, since both the accused persons are alleged to have committed the same offences arising from the very same incident, I deem it just and appropriate to allow the present petition especially when the requisite grounds of arrest have not been indicated/furnished to the petitioner as per the statutory provisions and judgments referred to in the aforesaid order.

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In the result, I pass the following:

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ORDER

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(i) Petition is hereby allowed.

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(ii) The impugned arrest of the petitioner-accused No.2 on 12.07.2024 in Crime No.357/2024 and consequential remand order dated 13.07.2024 passed by the IX Additional Chief Judicial Magistrate, Bengaluru, are hereby quashed.

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(iii) The respondents 1 and 2 as well as the 3^rd respondent - Jail Authorities are directed to release the petitioner/accused No.2 forthwith and immediately upon a receipt of a copy of this order, subject to the following conditions:

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(a) The petitioner shall not directly or indirectly threaten or tamper with the evidence, witnesses etc., of the respondents;

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(b) The petitioner shall not involve in similar offences in future;

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(c) The petitioner shall co-operate with the investigation;

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(d) The petitioner shall not leave the jurisdiction of this Court without the prior permission of the Court;

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(e) The petitioner shall execute a personal

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bond for a sum of Rs.1,00,000/- with one surety for the likesum to the satisfaction of the Trial Court within a period of two weeks from the date of his release.

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(f) The petitioner shall produce his address / identity proof before the Jail authorities at the time of his release.

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(g) The petitioner shall mark his attendance before the SHO of the jurisdictional police station between 10.00 a.m. and 02.00 p.m., once in two weeks.

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(h) Liberty is reserved in favour of the prosecution as well as the Trial Court to take appropriate action against the petitioner including revocation of this order, in the event he violates any of the terms and conditions mentioned above.

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Liberty is reserved in favour of the respondents – State to initiate appropriate action against the petitioner under the Foreigners Act, Passports Act etc., and in accordance with law.

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Registry is directed to communicate this order to the respondents 1 and 2 as well as the 3^rd respondent - Jail Authorities forthwith without any delay both electronically and

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