Dinesh Kashyap v. State of Uttarakhand

Learned counsel for the applicant would submit that in instant case, the grounds of arrest have not been communicated in writing to the applicant, therefore, in view of the law laid down by the Hon’ble Supreme Court in the case of Prabir Purkayastha v. State (NCT of Delhi), (2024) 8 SCC 254, Pankaj Bansal v. Union of India, (2024) 7 SCC 576 and Vihaan Kumar v. State of Haryana and another, 2025 SCC OnLine SC 269, the applicant is entitled to bail.

4. Learned State Counsel would submit that in the instant case, the applicant had earlier moved an anticipatory bail application, which has already been rejected; therefore, NBW was issued and in compliance thereof, he was arrested. Therefore, she 2 would submit that in the instant case, as such the grounds of arrest are not required to be communicated in writing to the applicant. She would refer to the provisions of Section 50 of the Code of Criminal Procedure, 1973 (“the Code”), which reads as follows:- “50. Person arrested to be informed of grounds of arrest and of right to bail. – (1) Every police office 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. (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.”

5. In support of her contention, learned State Counsel would refer to the judgment in the case of Vihaan Kumar (supra). Reference has been made to para 13 of the judgment, wherein the Hon’ble Supreme Court observed “This requirement incorporated in Article 22(1) also ensures that the grounds for arresting the person without a warrant exist”. She would also submit that in case the arrest is without warrant, in such a situation the ground of arrest needs to be communicated.

6. On this aspect, learned counsel for the applicant would submit that even if the arrest is made in execution of warrant, the grounds of arrest are required to be communicated in view of the mandate of Article 22(1) of the Constitution of India. He would refer to the judgments in the case of Bharat Pukhraj Chaudhary v. State of Maharashtra and another, 2024 SCC OnLine Bom 3515 and Lalit 3 Shyam Tekchandani v. State of Maharashtra and another, 2024 SCC OnLine Bom 3817.

7. In the case of Bharat Pukhraj Chaudhary (supra), the Hon’ble Bomay High Court in para 12 observed as follows:- “12. Though learned Additional Public Prosecutor has justified claim of communication of grounds of arrest to the accused so also the reasons based on the contents of the production warrant which are issued by the Court of Judicial Magistrate First Class, 11th Court, Bhiwandi and also the production warrant granted by the Additional Sessions Court, Haridwar, there is no iota of material to infer that the petitioner at any point of time was communicated in writing about the grounds of his likely arrest or post arrest the grounds for which he was arrested. Merely because the respondents have mentioned in its record that the grounds of arrest or reasons of arrest were communicated to the petitioner or any of his blood relations, that by itself cannot be said to be in conformity with the mandate provided under Article 22(1) of the Constitution of India. In support of the aforesaid observations, reliance can be placed on the findings recorded by the Apex Court in Pankaj Biswas (supra), which are already discussed hereinabove. Even though it is claimed by the learned Additional Public Prosecutor that while processing the request for production warrant, the petitioner was made aware about the grounds of arrest, we hardly see any such mention of grounds of arrest in the production warrant which was duly served on the petitioner. Rather there is a specific dispute to the aforesaid effect as has been raised by the petitioner and in such an eventuality, we are guided by the mandate of the Apex Court in Pankaj Biswas (supra). The Apex Court in the above judgment in categorical terms observed that the communication of the grounds of arrest to the arrested person must be in writing and that too at the earliest opportunity.” 4

8. Similarly, in the case of Lalit Shyam Tekchandani (supra), in para 28, the Hon’ble Bombay High Court observed as follows:- “28. The aforesaid observations by the Apex Court has left no doubt in our mind that even though the arrest of the Petitioner is pursuant to a production of P.T. Warrant, it amounts to an arrest within the meaning of Code of Criminal Procedure, and, since, there exist no distinction between the arrest effected, when the petitioner was produced on Production Warrant subsequent cases and the first case when he was arrested, as a free man, the procedural safeguards which were then available must also be made available to him, when he is arrested pursuant to a production of transfer warrant, which necessarily include communication of the ‘grounds of arrest’ in writing.”

9. The scope of Article 22(1) of the Constitution of India has been discussed in the case of Prabir Purkayastha (supra). In para 29 of the judgment, the Hon’ble Supreme Court observed as follows:- “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.”

10. In para 30 of the judgment in the case of Prabir Purkayastha (supra), further the Hon’ble Supreme Court observed that in the case of Pankaj Bansal (supra) the law has been laid down that ground of arrest must be communicated in writing to the person arrested of an offence at the earliest. 5

11. In the case of Vihaan Kumar (supra), in para 19, the Hon’ble Supreme Court discussed the requirement under Section 50 of the Code as well as the mandate of Article 22(1) the Constitution of India, which reads as follows:- “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). 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.”

12. A bare reading of the settled law, makes its abundantly clear that Article 22(1) of the Constitution of India is not subject to the provisions of Section 50 of the Code. The Constitutional mandate of Article 22(1) has to be fulfilled and if any arrest is made in its defiance, the dictum as has been laid down in the case of Vihaan Kumar (supra) in para 21(f) would entail, which reads as follows. “21. Therefore, we conclude: a)….. b)….. c)….. d)….. e)…… 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 6 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 Article 21 and 22 of the Constitution is established.”

13. In the instant case, admittedly the grounds of arrest have not been communicated in writing to the applicant.

14. Having considered, this Court is of the view that it is a case fit for bail and the applicant deserves to be enlarged on bail.

15. The bail application is allowed.

16. Let the applicant be released on bail, on his executing a personal bond and furnishing two reliable sureties, each of the like amount to the satisfaction of the court concerned. Avneet/ (Ravindra Maithani, J.) 03.04.2025