Barua, Advocates. vs THE STATE NCT OF DELHI

BRIEF FACTS Briefly, the accusation against the petitioner is that he had assisted an Afghan national to emigrate to Spain, based on a fraudulently obtained Indian passport alongwith an Aadhaar Card and a PAN Card, in consideration of having received money from the said person. This led to registration of the subject FIR, in which however the petitioner was not named and the only named accused was one – Arjeet Singh.

8. In the course of investigation, the petitioner was summonsed by way of a notice dated 16.03.2024 purportedly issued under section 41-A Cr.P.C. to appear before the investigating officer on 17.03.2024. Since the petitioner did not join the investigation on that date, a fresh notice was issued on 19.03.2024 requiring the petitioner to join investigation on 20.03.2024.

9. In compliance of notice dated 19.03.2024, the petitioner presented himself before the investigating officer on 20.03.2024; and after being interrogated, the petitioner was arrested by the investigating officer on the same day.

10. Subsequently, two applications came to be filed before the learned Magistrate, one by the investigating officer seeking police custody remand, and the second, by the petitioner seeking bail. Vide common order dated 21.03.2024, police custody remand was declined by the learned Magistrate and the petitioner was granted interim bail for 05 days; which was subsequently extended; and by order dated Signature Not Verified Signed By:ANJALI KAUSHIK Signing Date:28.03.2025 13:44:14 CRL.M.C. 4845/2024

28.03.2024 passed by the learned ACMM, the bail granted to the petitioner was “made absolute”.

11. Order dated 21.03.2024 granting interim bail and order dated

28.03.2024 confirming such bail were challenged by the State by way of a revision petition bearing Criminal Revision Petition No.197/2024 before the learned Sessions Court, which petition has been allowed vide order dated 06.06.2024, thereby cancelling the petitioner‟s bail. PETITIONER’S SUBMISSIONS

12. Ms. John, learned senior counsel appearing for the petitioner has raised the following 04 contentions in support of their case : 12.1. That the revision petition filed by the State before the learned Sessions Court was not maintainable since orders dated

21.03.2024 and 28.03.2024 passed by the learned Magistrates denying police custody remand were „interlocutory orders‟ and were not amenable to the revisional jurisdiction of the court in view of section 397(2) Cr.P.C.;

12.2. That notice under section 41-A Cr.P.C. was not served upon the petitioner in compliance with the mandate of the law and was therefore not a valid notice, by reason of which the learned Magistrate was correct in declining police custody remand of the petitioner;

12.3. That the petitioner was not served with the „grounds of arrest in writing‟ in compliance with the mandate of the law; and accordingly the order of the learned Sessions Court directing that the investigating officer “… …is at liberty to immediately re-arrest the respondent/accused… …” is bad in law; and Signature Not Verified Signed By:ANJALI KAUSHIK Signing Date:28.03.2025 13:44:14 CRL.M.C. 4845/2024

12.4. That the petitioner was not produced before the learned Magistrate within the 24-hour period from the time of his arrest, as prescribed in section 57 Cr.P.C.; and accordingly the resultant direction issued by the learned Sessions Court is illegal.

13. Ms. John has argued, that on point of law, the revision petition filed before the learned Sessions Court was not maintainable, since the order declining remand is an „interlocutory order‟ as has been held by the Supreme Court in Usmanbhai Dawoodbhai Memon & Ors. vs. State of Gujarat.2 The relevant portion of that verdict reads as under : “24. At the conclusion of the hearing on the legal aspect, Shri Poti, Learned Counsel appearing for the State Government contended, on instructions, that an order passed by a Designated Court for grant or refusal of bail is not an “interlocutory order” within the meaning of Section 19(1) of the Act and therefore an appeal lies. We have considerable doubt and difficulty about the correctness of the proposition. The expression “interlocutory order” has been used in Section 19(1) in contradistinction to what is known as final order and denotes an order of purely interim or temporary nature. The essential test to distinguish one from the other has been discussed and formulated in several decisions of the Judicial Committee of the Privy Council, Federal Court and this Court. One of the tests generally accepted by the English Courts and the Federal Court is to see if the order is decided in one way, it may terminate the proceedings but if decided in another way, then the proceedings would continue. In V.C. Shukla v. State [1980 Supp SCC 92 : 1980 SCC (Cri) 695] , Fazal Ali, J. in delivering the majority judgment reviewed the entire case law on the subject and deduced therefrom the following two principles, namely, (i) that a 2 (1988) 2 SCC 271 Signature Not Verified Signed By:ANJALI KAUSHIK Signing Date:28.03.2025 13:44:14 CRL.M.C. 4845/2024 final order has to be interpreted in contradistinction to an interlocutory order; and (ii) that the test for determining the finality of an order is whether the judgment or order finally disposed of the rights of the parties. It was observed that these principles apply to civil as well as to criminal cases. In criminal proceedings, the word “judgment” is intended to indicate the final order in a trial terminating in the conviction or acquittal of the accused. Applying these tests, it was held that an order framing a charge against an accused was not a final order but an interlocutory order within the meaning of Section 11(1) of the Special Courts Act, 1979 and therefore not appealable. It cannot be doubted that the grant or refusal of a bail application is essentially an interlocutory order. There is no finality to such an order for an application for bail can always be renewed from time to time. It is however contended that the refusal of bail by a Designated Court due to the non-fulfilment of the conditions laid down in Section 20(8) cannot be treated to be a final order for it affects the life or liberty of a citizen guaranteed under Article 21. While it is true that a person arraigned on a charge of having committed an offence punishable under the Act faces a prospect of prolonged incarceration in view of the provision contained in Section 20(8) which places limitations on the power of a Designated Court to grant bail, but that by itself is not decisive of the question as to whether an order of this nature is not an interlocutory order. The court must interpret the words “not being an interlocutory order” used in Section 19(1) in their natural sense in furtherance of the object and purpose of the Act to exclude any interference with the proceedings before a Designated Court at an intermediate stage. There is no finality attached to an order of a Designated Court granting or refusing bail. Such an application for bail can always be renewed from time to time. That being so, the contention advanced on behalf of the State Government that the impugned orders passed by the Designated Courts refusing to grant bail were not interlocutory orders and therefore appealable under Section 19(1) of the Act, cannot be accepted.” (emphasis supplied) Signature Not Verified Signed By:ANJALI KAUSHIK Signing Date:28.03.2025 13:44:14 CRL.M.C. 4845/2024

14. It is argued that the aforesaid position of law has been reiterated by the Supreme Court in State & Ors. vs. N.M.T. Joy Immaculate,3 the relevant portion of which reads as follows : “13. Section 167 CrPC empowers a Judicial Magistrate to authorise the detention of an accused in the custody of police. Section 209 CrPC confers power upon a Magistrate to remand an accused to custody until the case has been committed to the Court of Session and also until the conclusion of the trial. Section 309 CrPC confers power upon a court to remand an accused to custody after taking cognisance of an offence or during commencement of trial when it finds it necessary to adjourn the enquiry or trial. The order of remand has no bearing on the proceedings of the trial itself nor can it have any effect on the ultimate decision of the case. If an order of remand is found to be illegal, it cannot result in acquittal of the accused or in termination of proceedings. A remand order cannot affect the progress of the trial or its decision in any manner. Therefore, applying the test laid down in Madhu Limaye case [(1977) 4 SCC 551 : 1978 SCC (Cri) 10 : AIR 1978 SC 47] it cannot be categorised even as an “intermediate order”. The order is, therefore, a pure and simple interlocutory order and in view of the bar created by sub-section (2) of Section 397 CrPC, a revision against the said order is not maintainable. The High Court, therefore, erred in entertaining the revision against the order dated 6-11-2001 of the Metropolitan Magistrate granting police custody of the accused Joy Immaculate for one day.” (emphasis supplied) 15. Reference in this behalf is also made to a recent judgment of the Supreme Court in Gautam Navlakha vs. National Investigation 3 (2004) 5 SCC 729 Signature Not Verified Signed By:ANJALI KAUSHIK Signing Date:28.03.2025 13:44:14 CRL.M.C. 4845/2024 Agency, 4 where a similar position has been articulated by the Supreme Court, with the following observations : “72. Thus, an order under Section 167 is purely an interlocutory order. No revision is maintainable. A petition under Section 482 cannot be ruled out. Now at this juncture we must notice the following dimension. When a person arrested in a non- bailable offence is in custody, subject to the restrictions, contained therein, a court other than the High Court or the Court of Session, before whom he is brought, inter alia, can release him on bail under Section 437 CrPC. Section 439 CrPC deals with special powers of the High Court and the Court of Session to grant bail to a person in custody. The said courts may also set aside or modify any condition in an order by a Magistrate.”

16. It is argued that based on the afore-noted articulation of law by the (emphasis supplied) Supreme Court, an order granting or declining police custody remand are both interlocutory orders and no revision petition is maintainable against such orders, by reason of which impugned order dated

06.06.2024 made by the learned Sessions Court, reversing orders dated 21.03.2024 and 28.03.2024 passed by the learned Magistrates, is vitiated and is liable to be set-aside.

17. Insofar as the notice purportedly issued under section 41-A Cr.P.C. is concerned, it has been argued on behalf of the petitioner that such notice is required to be served in strict compliance with the procedure laid-down by a Division Bench of this court in Amandeep Singh Johar vs. State (NCT of Delhi) & Anr.,5 which was not done in the 4 5 (2022) 13 SCC 542 2018 SCC OnLine Del 13448 Signature Not Verified Signed By:ANJALI KAUSHIK Signing Date:28.03.2025 13:44:14 CRL.M.C. 4845/2024 present case. It is pointed-out that based on the Division Bench judgment, the Commissioner of Police, Delhi has issued Standing Order No. 109/2020 dated 04.06.2020, which is a verbatim reproduction of the directions issued by the Division Bench. The relevant portion of Amandeep Singh Johar is extracted below : “16. We have heard Mr. Sanjay Jain, learned ASG and Mr. Satyakam, ASC, GNCTD on the aforesaid issues and the reports. Upon consideration of the report and the suggestions made by the parties under the leadership of the Worthy Registrar General and with their consent, it is directed that so far as working of Section 41A, the following procedure shall be strictly followed by the police in Delhi: Procedure for issuance of notices/order by police officers under Sections 41A * * * * * (v) A suspect/accused on formally receiving a notice under section 41A CrPC and appearing before the concerned officer for investigation/interrogation at the police station, may request the concerned IO for an acknowledgement. (vi) In the event, the suspect/accused is directed to appear at a place other than the police station (as envisaged under Section 41A(1) CrPC), the suspect will be at liberty to get the acknowledgement receipt attested by an independent witness if available at the spot in addition to getting the same attested by the concerned investigating officer himself. (vii) A duly indexed booklet containing serially numbered notices in duplicate/carbon copy format should be issued by the SHO of the Police Station to the Investigating Officer. The Notice should necessarily contain the following details: a. Serial Number b. Case Number c. Date and time of appearance Signature Not Verified Signed By:ANJALI KAUSHIK Signing Date:28.03.2025 13:44:14 CRL.M.C. 4845/2024 d. Consequences in the event of failure to comply e. Acknowledgment slip (viii) The Investigating Officer shall follow the following procedure:— a. The original is served on the Accused/Suspect; b. A carbon copy (on white paper) is retained by the IO in his/her case diary, which can be shown to the concerned Magistrate as and when required; c. Used booklets are to be deposited by the IO with the SHO of the Police Station who shall retain the same till the completion of the investigation and submission of the final report under section 173(2) of the Cr.P.C. d. The Police department shall frame appropriate rules for the preservation and destruction of such booklets (ix) Procedure booklets in format identical to the above prescription in guideline (vii) & (viii) with modifications having regard to the statutory provisions in the forms for the notices and acknowledgment shall be maintained. (x) Failure on the part of the IO to comply with the mandate of the provisions of the CrP.C. and the above procedure shall render him to appropriate disciplinary proceedings under the applicable rules and regulations as well as contempt of Court in terms of the directions of the Hon'ble Supreme Court in the case of Arnesh Kumar v. State of Bihar (2014) 8 SCC 273. liable * * * * * “17. It is directed that the above procedure shall apply also to the working of Sections 91, 160 and 175 of the CrPC as well. The above procedure shall be mandatorily followed by the Delhi Police when working the requirements of all the above noted sections.” (emphasis supplied) Signature Not Verified Signed By:ANJALI KAUSHIK Signing Date:28.03.2025 13:44:14 CRL.M.C. 4845/2024

18. It is accordingly argued, that a notice under section 41-A Cr.P.C. is required to be served by investigating officer upon an accused/suspect in original and a receipted carbon copy is required to be retained by the investigating officer in the case diary. It is submitted that in the present case, it is clearly borne-out from the record, that when the learned Magistrate inspected the police file, the original notice issued under section 41-A Cr.P.C. was found in the police file/case diary and no carbon copy of the same was available on the file. In fact, in his order dated 21.03.2024, the learned Magistrate records that “… … The acknowledgment receipt annexed with the notice is empty and the same does not indicate due receipt of the notice by the accused … …”. Evidently therefore, the investigating officer had not served the original notice under section 41-A Cr.P.C. upon the petitioner; and therefore, the purported service of such notice upon the petitioner was not valid in law.

19. It is further pointed-out, that the mandatory procedure laid down by a Division Bench of this court in Amandeep Singh Johar has received the imprimatur of the Supreme Court in Satender Kumar Antil vs. Central Bureau of Investigation & Anr., 6 in which decision the Supreme Court has directed all State Governments and Union Territories as follows : “100.4. All the State Governments and the Union Territories are directed to facilitate Standing Orders for the procedure to be followed under Section 41 and 41-A of the Code while taking note of 6 (2022) 10 SCC 51 Signature Not Verified Signed By:ANJALI KAUSHIK Signing Date:28.03.2025 13:44:14 CRL.M.C. 4845/2024 the order of the High Court of Delhi dated 7-2-2018 in Amandeep Singh Johar v. State (NCT of Delhi) [Amandeep Singh Johar v. State (NCT of Delhi), 2018 SCC OnLine Del 13448] and the Standing Order issued by Delhi Police i.e. Standing Order 109 of 2020, to comply with the mandate of Section 41-A of the Code.”

20. Ms. John has also argued that the „grounds of arrest‟ were not served upon the petitioner in writing, at the time of his arrest on 20.03.2024, in violation of the mandate of the Supreme Court judgment in Prabir Purkayastha vs. State (NCT of Delhi),7 in which case the Supreme Court has held that the requirements set-out in Pankaj Bansal vs. Union of India & Anr.8 apply to all criminal offences.

21. It is submitted that even the contents of the arrest memo issued to the petitioner were stereotypical in nature; and did not narrate any basis specific to the petitioner for which the petitioner was being arrested. It is accordingly argued, that at best, the arrest memo only sets-out the „reasons for arrest‟ but not the „grounds of arrest‟, which have been held by the Supreme Court to be two different and distinct concepts. To this end, attention of the court is drawn to the following portion of Prabir Purkayastha : “48. 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 tampering with 7 8