Gujarat High Court
Sagar Ambaram Fultaria Thro. Ambaram … vs State Of Gujarat on 21 May, 2026
Author: Sangeeta K. Vishen
Bench: Sangeeta K. Vishen
NEUTRAL CITATION
R/SCR.A/3662/2026 JUDGMENT DATED: 21/05/2026
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CRIMINAL APPLICATION (HABEAS CORPUS) NO.3662 of
2026
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS. JUSTICE SANGEETA K. VISHEN
and
HONOURABLE MR.JUSTICE D. M. VYAS
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Approved for Reporting Yes No
==========================================================
SAGAR AMBARAM FULTARIA THRO. AMBARAM THOBHANBHAI
FULTARIA
Versus
STATE OF GUJARAT & ORS.
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Appearance:
MR GHANSHYAM UPADHYAY FOR MR DENISH V MAVADHIYA(9207) for
the Applicant(s) No. 1
MR UTKARSH SARMA, APP for the Respondent(s) No. 1
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CORAM:HONOURABLE MS. JUSTICE SANGEETA K. VISHEN
and
HONOURABLE MR.JUSTICE D. M. VYAS
Date : 21/05/2026
JUDGMENT
(PER : HONOURABLE MS. JUSTICE SANGEETA K. VISHEN)
1. In the captioned writ petition, the petitioner has
sought for direction to the respondents to release the
petitioner who has been arrested in connection with the FIR
No. 11189003250401/2025 lodged with Morbi City, A Division
Police Station, Morbi for the offences punishable under
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sections 336(2), 336(3), 338, 340(2), 349, 3(5), 61, 229(1), 235
and 236 of the Bharatiya Nyaya Sanhita, 2023 (hereinafter
referred to as “the BNS”). For ease of reference, the prayers
prayed for by the petitioner are reproduced hereinbelow:
“a) that this Hon’ble Court may be pleased to issue a writ of
Habeas Corpus and/or any other appropriate writ, order
and/or direction in the nature of Habeas Corpus thereby
directing the Respondents to release the Petitioner
forthwith from illegal arrest and detention in connection
with the FIR No. 11189003250401/2025 of Morbi City A
Division Police Station, Morbi, State of Gujarat (Charge
Sheet No. 528/2025 pending on the file of Ld. CJM, Morbi,
State of Gujarat), in exercise of the extra-ordinary powers
vested with this Hon’ble Court under Article 226 of the
Constitution of India;
b) that pending hearing and final disposal of the present
petition, this Hon’ble Court may be pleased to direct
release of the Petitioner on bail forthwith in connection
with the FIR No. 11189003250401/2025 of Morbi City A
Division Police Station, Morbi, State of Gujarat (Charge
Sheet No. 528/2025 pending on the file of Ld. CJM, Morbi,
State of Gujarat) on such terms and conditions, as this
Hon’ble Court may deem fit and proper, in exercise of the
extra-ordinary powers vested with this Hon’ble Court
under Article 226 of the Constitution of India;
c) that interim and ad-interim relief in terms of prayer clause
(a) and (b) above be granted;
d) that cost of the petition be provided for;
e) that any such other and further reliefs, as the nature and
circumstances of the case may require, be granted.”
2. With the consent of the learned Advocates
appearing for the respective parties, the writ petition was
taken up for final hearing. Issue Rule returnable forthwith.
Mr.Utkarsh Sharma, learned Additional Public Prosecutor
waives service of notice of Rule on behalf of the respondents.
The hearing of the matter was concluded on 08.05.2026 and
was kept today for orders/pronouncement.
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3. Mr Ghanshyam Upadhyay, learned advocate
appearing with Mr Denish Mavadhiya, learned advocate for
the petitioner submitted that it is not disputed rather
admitted by the investigating officer that the petitioner was
apprehended on 25.07.2025 from Gurugram, Haryana but was
not produced before the nearest learned Magistrate within 24
hours, let alone seeking transit remand. It is also not in
dispute that the petitioner was brought by road via Delhi to
Gandhinagar CID crime and was thereafter taken to Morbi.
Before reaching Gandhinagar, the petitioner was made to stay
at the hotel at Ahmedabad. It is submitted that the petitioner
was arrested on 25.07.2025 but on paper was shown arrested
on 27.07.2025 at 16:00 hours and the petitioner was produced
before the learned Chief Judicial Magistrate, Morbi on
28.07.2025 at 3:30 p.m. Furthermore, it is admitted that the
“grounds of arrest” were not communicated to the petitioner,
either orally or in writing. Therefore, the arrest of the
petitioner is against the constitutional mandate and illegal
since inception.
3.1 It is next submitted that the stand taken by the
respondents, they having visited Gurugram, Haryana for
preliminary inquiry and the petitioner having willingly joined
the officers and that it was only after completing the formal
inquiry that the arrest was made and hence it cannot be said
that the petitioner was arrested on 25.07.2025, is incorrect. It
is further submitted that in the case on hand, a senior
investigating officer in the press-conference has made it clear
about the arrest of the petitioner from Gurugram, and
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therefore, it would be incorrect on the part of the prosecution
to say that the petitioner has voluntarily accompanied the
officers. The anticipatory bail application filed by the
petitioner, before the learned Sessions Court, Morbi and
subsequently before this Hon’ble Court, was vehemently
contested by the respondents by filing affidavits. Neither the
contention that the Investigating Authority had gone to
Gurugram for conducting the preliminary inquiry, nor that
the petitioner was not arrested and had come on his own, can
be accepted.
3.2 Reliance is placed on the judgment in the case of Priya
Indoria vs. State of Karnataka & Ors. reported in 2023 SCC
OnLine SC 1484 for the proposition that the police is
obligated to secure the transit remand for taking the arrestee
from one place to another in their own custody, for the
purpose of producing him before the concerned Magistrate
who has the jurisdiction to try/commit the case. The idea
behind such remand is to enable the police to shift the person
in custody from the place of arrest to the place where the
matter can be investigated and tried. Further reliance is
placed on the judgment in the case of Pankaj Bansal vs.
Union of India & Ors. reported in (2024) 7 SCC 576 for the
proposition that mere passing of an order of remand would
not be sufficient in itself to validate the arrest if the arrest is
not in conformity with the requirement of law. Specific
reliance is placed on paragraphs 11, 14 to 17, 19 to 23. It is
therefore submitted that if the arrest is itself illegal, the order
of remand passed by the concerned Judicial Magistrate would
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not validate the arrest. Reliance is placed on the said
judgment also for the proposition that clause (1) Article 22 of
the Constitution of India provides, inter alia, that no person
who is arrested shall be detained in custody without being
informed of the grounds for such arrest and that it being a
fundamental right, the mode of conveying information of the
grounds of arrest must be meaningful so as to serve the
intended purpose. It is submitted that the Apex Court has laid
down the proposition that how and when the grounds of arrest
are to be served upon the arrestee. Reference is made of
paragraphs 34,35,38,42,43 and 45.
3.3 Reliance is placed on the judgment in the case of Vishal
Manohar Mandrekar vs. State of Telangana & Anr. reported in
2024 SCC OnLine TS 69. The issue was regarding non-
production of the accused before the learned Chief Judicial
Magistrate within 24 hours. Ancillary contention raised was
exclusion of time taken for journey from the place of arrest till
the production before the Magistrate. It is held and observed
that personal liberty is one of the cherished objects of the
Indian Constitution and deprivation of the same can only be in
accordance with law and in conformity with the provisions of
Article 21 of the Constitution of India. The Court, observed
that the petitioner therein was not produced before the
Magistrate within 24 hours without obtaining any transit
warrant and the arrest was held to be in violation of Article 22
of the Constitution of India.
3.4 Reliance is also placed on the judgment in the case of
Vihaan Kumar vs. State of Haryana & Anr. reported in (2025)
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5 SCC 799. It is held and observed that the grounds of arrest
to the person arrested should be effectively and fully
communicated to the arrestee in the manner in which he will
fully understand the same. In other words, the grounds of
arrest must be informed in a language which the arrestee
understands. Besides, the idea behind informing the grounds
of arrest, is to give an opportunity to the arrestee to consult
an advocate of his choice and the right to be defended. If the
grounds of the arrest are not communicated to the arrestee,
as soon as may be, he may not be able to effectively exercise
the right to consult an advocate. The Apex Court has also
stated that rejection of bail application and filing of charge-
sheet is immaterial in matters of illegal arrest. For similar
proposition, reliance is placed on paragraph 17 of the
judgment in the case of D. K. Basu vs. State of West Bengal
reported in (1997) 1 SCC 416. Attention is also invited to the
judgment in the case of Gautam Navlakha vs. National
Investigation Agency reported in (2022) 13 SCC 542 and by
placing specific reliance on paragraphs 73 onwards, it is
submitted that challenge to the order of remand would have
invited the risk of non-maintainability of the writ of Habeas
Corpus, considering the fact in paragraph 80 of the judgment
the Apex Court has carved out the situations where the
Habeas Corpus petition would be maintainable. Reliance is
placed on the judgment in the case Dr. Rajinder Rajan v.
Union of India & Anr. of the Apex Court rendered in Criminal
Appeal No. 001700 of 2026 and Anr.
3.5 It is submitted that so far as arrest is concerned, it is
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well settled that the moment an individual’s movement is
restricted and is completely in the charge of Investigating
Authority, then the arrest is complete at that very moment
and not when on paper the formal arrest is shown. The
Investigating Authority is duty bound to produce the arrestee
before the nearest learned Magistrate and has to seek transit
remand, and in the absence thereof, the arrest would be
illegal. Therefore, the contention of the respondents that the
petitioner was not arrested is fallacious.
3.6 By inviting the attention of this Court to the application
of the respondents dated 28.07.2025 (Annexure C), it is
submitted that in the first place it was not supplied to the
petitioner. Besides, the said application, by no stretch of
imagination, can be construed to be providing the grounds of
arrest, asmuch as, it only makes a reference of reasons for
arrest and not the grounds. The grounds of arrest has to be by
way of an independent document and cannot be inferred from
any other document. It is submitted that the law requires that
the arrestee should be informed immediately of the grounds of
arrest and it is only in exceptional cases and, in any case,
before two hours of the accused being produced before the
Court and in the language known to the accused. Reliance is
placed on the judgment in the case of Prabir Purkayastha vs.
State (NCT of Delhi) reported in (2024) 8 SCC 254 to contend
that there is a significant difference in the phrase “reasons for
arrest” and “grounds of arrest”. It has been held and observed
that the “reasons for arrest” as indicated in the arrest memo
are purely formal parameters preventing the accused person
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from committing any further offence etc. whereas the
“grounds of arrest” would be required to contain all details in
hand of the investigating officer, necessitating the arrest of
the accused. The Apex Court has pointed out that the grounds
of arrest informed in writing must convey to accused all basic
facts on which he is being arrested so as to provide him an
opportunity of defending himself against custodial remand
and to seek bail. The Apex Court has further held that the
grounds of arrest are not only to be informed to the arrestee
but also to his relative or friend. Reliance is placed on the
judgment in the case of Ashrafbhai Ibrahimbhai Kalavdiya vs.
Union of India & Anr. reported in 2025 SCC Online Bom 2972
for similar proposition.
3.7 It is submitted that in a writ petition seeking Habeas
Corpus, only one line is to be averred by the petitioner that
the grounds of arrest have not been supplied. The burden
then, is on the investigating officer to substantiate that the
constitutional and statutory mandate has been complied with.
It is further submitted that in the captioned petition composite
prayer has been made of release of the petitioner from illegal
arrest and detention and hence, it is incorrect to suggest on
the part of the respondents that the petitioner has not
challenged the order of remand. It is next submitted that the
case of the respondents is that even if initial detention is
illegal; what is to be seen is the position prevailing during the
hearing of the petition and if the arrest by that time has
become legal, by virtue of an order of remand, then in that
case, writ petition seeking Habeas Corpus is not maintainable;
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such contention is misplaced inasmuch as, the law has
traveled far beyond. In recent judgment of the Hon’ble
Supreme Court in the case of Mihir R. Shah vs. State of
Maharashtra & Anr. reported in (2025) SCC OnLine SC 2356,
it is held that non-compliance would result in breach of the
constitutional and statutory safeguards as provided under
Article 22 of the Constitution of India, rendering the arrest
and remand illegal and person will be entitled to be set free.
Therefore, when initial arrest is itself illegal and in violation of
Article 22 of the Constitution of India, then subsequent order
of remand would not validate the initial illegality. It is next
submitted that despite passing of the remand order or the
orders refusing the bail by the courts or the charge-sheet
being filed and Magistrate taking cognizance, the writ petition
under Habeas Corpus is maintainable.
3.8 It is further submitted that the stand taken of no
necessity to take the transit remand and as per the provision
of section 58 of Bharatiya Nagarik Suraksha Sanhita, 2023
(hereinafter referred to as “BNSS”), the travel time has to be
excluded from the 24 hour period stipulated therein, is also an
incorrect stand. It is further submitted that so far as the
exclusion of time of 24 hours is concerned, it is held by the
Apex Court and the various High Courts, that when the
offender is arrested from another State from the State where
the FIR is registered; in that case transit remand is must. It is
submitted that when the petitioner was apprehended from
Gurugram the option available to the Investigating Officer was
to have produced him before the nearest learned Magistrate
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and prayed for a transit remand; however, in the case on
hand, firstly, there was no transit remand taken and secondly,
the petitioner, was not produced before the learned Chief
Judicial Magistrate within 24 hours of his arrest. Reliance is
placed on the judgment in the case of Manoj vs. State of M.P.
reported in (1999) 3 SCC 715. It is submitted that the court
was dealing with the case in connection with section 15 of the
Narcotic Drugs and Psychotropic Substances Act, 1985. That
the petitioner therein was arrested and not produced before
the learned Chief Judicial Magistrate within 24 hours and
hence, the writ petition seeking Habeas Corpus, was allowed.
The Apex Court noted that it is a constitutional mandate that
no person shall be deprived of his liberty except in accordance
with the procedure established by law. It has been further
held and observed that the person arrested and detained in
custody shall be produced before the nearest Magistrate
within 24 hours of such arrest. In continuation and in support
of such submission further reliance is placed on the
judgments in the cases of (i) Directorate of Enforcement vs.
Subhash Sharma reported in 2025 SCC OnLine SC 240; and
(ii) Hemang Jadavji Shah vs. State of Maharashtra reported in
2025 SCC OnLine Bom 2145 (paragraphs 3,4(d),(f), (g), 6,7,11
to 16,18,21,22,23,26,27 and 30).
3.9 It is submitted that even while entertaining the writ
petition seeking Habeas Corpus this Court is empowered to
grant bail and in support of such submission reliance is placed
on the judgment in the case of State of Bihar vs. Rambalak
Singh & Ors reported in 1966 SCC OnLine SC 94; AIR 1966
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SC 1441. It is submitted that the issue before the Apex Court
was “whether while entertaining a Habeas Corpus petition
under Article 226 of the Constitution filed on behalf of a
detenue who has been detained under Rule 30 of the Defence
of India Rules, the High Court has jurisdiction to release the
detenue on bail pending the final disposal of the Habeas
Corpus petition.” The issue, was answered in affirmative by
observing that in dealing with Habeas Corpus petition under
Article 226 of the Constitution of India, where the orders of
detention passed under Rule 30, the High Court has
jurisdiction to grant bail. It is next submitted that the grounds
of arrest, has to be separately provided and it would not be
sufficient even if it is mentioned in the arrest memo or in the
application seeking remand. It is next submitted that criminal
antecedents would be relevant while considering the bail
application but not in the writ petition seeking Habeas
Corpus.
4. On the other hand, Mr Utkarsh Sharma, learned
Additional Public Prosecutor submitted that there is no
illegality committed on the part of the Investigating Authority
and the arrest is in accordance with law. The captioned writ
petition seeking writ of Habeas Corpus is not maintainable
rather may not be entertained inasmuch as, on 28.07.2025,
order has been passed granting remand. Moreover, the
application seeking anticipatory bail has been rejected by the
Sessions Court, Morbi vide passing a detailed order dated
03.04.2025 so also by this Court vide order dated 01.07.2025;
followed by filing of the charge-sheet on 25.09.2025. It is next
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submitted that the petitioner subsequent thereto has filed an
application seeking regular bail which also came to be
rejected by the Sessions Court, Morbi on 18.10.2025. The said
order is accepted and the petitioner has not approached the
higher forum and instead has filed the captioned writ petition
seeking writ of Habeas Corpus, which remedy in view of the
above development is not available.
4.1 It is further submitted that a bare perusal of the
averments made in the remand application, would suggest
that it complies with the requirements under Article 22 of the
Constitution of India read with section 47 of the BNSS. It is
submitted that the first paragraph discloses the offence
followed by mentioning of the grounds and that is how, the
submissions were made and recorded of the learned Advocate
appearing for the petitioner. It is submitted that learned
advocate for the petitioner was supplied with the remand
application otherwise he would not have made submissions
dealing with the merits and the grounds of the arrest. The
submissions of the learned Advocate for the petitioner in
vernacular is recorded taking note of the reasons contained in
the remand application. Therefore, the petitioner as well as
the learned Advocate had complete knowledge as to why the
petitioner was arrested.
4.2 It is further submitted that one of the aspects
enumerated in Article 22 of the Constitution of India is that
the arrestee should be aware of as to why he is arrested.
Simply put, the whole purpose and object of providing
grounds of arrest is that the arrestee should know for what
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reasons and in what context, arrest is being made so that the
arrestee can contest his arrest at the stage of remand/ bail, or
in a writ of Habeas Corpus. It is submitted that there is
sufficient compliance of the constitutional mandate inasmuch
as, what has been provided to the petitioner are the grounds
of arrest, incorporating sufficient details, over and above the
material already furnished. Therefore, the case on hand is not
one of those cases where the accused or his advocate were
unaware of the reasons. The compliance of the constitutional
mandate is clear considering the fact that the arrestee had
sufficient opportunity to oppose his remand application on
merits. The contention of the petitioner that the grounds of
arrest are not furnished is far from truth and does not deserve
to be accepted.
4.3 It is next submitted that the learned Advocate appearing
for the petitioner has put his signature in the remand order
dated 28.07.2025 passed by the learned Chief Judicial
Magistrate which suggests that why the petitioner has been
arrested. Essentially it is to be established before Court of law
that there is sufficient compliance and not technically
identified compliance. It is submitted that this Hon’ble Court
can very well examine the aspect and determine whether the
compliance is in its true spirit or not. It is submitted that
section 47 of the BNSS requires that the person arrested to be
informed about full particulars of the offence for which he is
arrested or other grounds for such arrest. It is submitted that
for the offences punishable under PML Act, Customs Act, GST
Act; no such window is open and it strictly requires providing
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grounds of arrest. The idea behind is to see that the arrestee
is not kept in dark or is completely unaware about the
offences alleged to have been committed. In the instant case,
the remand application and the remand order clearly
establishes that the petitioner and the learned advocate for
the petitioner had sufficient knowledge about the grounds of
arrest.
4.4 Reliance is placed on the judgment in the case of
Kasireddy Upender Reddy vs. State of Andhra Pradesh
reported in 2025 (0) AIJEL-SC 75398. While referring to the
provision of clause (1) of Article 22 of the Constitution of India
it has been held and observed that requirement of informing a
person arrested of grounds of arrest is mandatory. It has been
further observed that information of the grounds of arrest
must be provided to the arrested persons 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 safeguards is achieved.
4.5 It is submitted that the provision of clause (1) of Article
22 is in two parts; first, that no person who is arrested shall
be detained in custody without being informed of the grounds
of such arrest, as soon as may be, and second, he shall not be
denied the right to consult and to be defended by a legal
practitioner of his choice. It is submitted that the remand
application was provided and the arrestee was represented by
the Advocate and had opposed the remand application which
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suggests that the arrestee and the advocate were aware about
the grounds of arrest. Had there been any grievance on the
part of the arrestee of having not received the grounds of
arrest, objection ought to have been raised about the
insufficiency or non-furnishing of the grounds of arrest, but
has not been raised.
4.6 While referring to the proforma of warrant (form 3) as
provided under section 72 of BNSS, it is submitted that the
details as stipulated in a warrant if are furnished by
Investigating Authority with grounds or in any form, then the
grounds of arrest can be said to have been communicated. It
is submitted that in the case of Kasireddy Upender Reddy vs.
State of Andhra Pradesh (supra) it has been held as to in case
of warrant, why the grounds of arrest are not required to be
supplied. It is submitted that if from the record it is
established that the accused was aware of the grounds of
arrest then, there is sufficient compliance. In the proceedings
under the PML Act or GST Act, there is no FIR registered and
hence, the arrestee would not be aware of the ground unlike
the case on hand inasmuch as, there is an FIR registered
against the arrestee and the arrestee was very well aware
about the grounds and everything was within his knowledge.
There is nothing of which the petitioner was not aware.
Knowledge was very much there and hence, the requisite
conditions stand satisfied and the arrest cannot be said to be
in breach or violation of the constitutional mandate.
4.7 While adverting to the issue as to whether the petitioner
was arrested in Gurugram or not, it is submitted that the
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petitioner and his friend had voluntarily agreed to cooperate
with the proceedings and that is how both traveled together
from Gurugram to Gandhingar via Delhi only for the purpose
of preliminary inquiry. It is submitted that after completing
the preliminary inquiry, since nothing was found against the
friend, he was allowed to go; however, the Investigating
Authority after conducting preliminary inquiry found the
involvement of the petitioner and hence, thought it fit to
arrest him. Therefore, during the course of the preliminary
inquiry, no steps were taken and only upon conclusion when
there was incriminating material found, the officers arrested
the petitioner. It is submitted that it is not in dispute that
travel time from Gurugram to Gandhinagar is more than 24
hours and the petitioner was arrested on 27.07.2025 at 16:00
hrs. It is submitted that time necessary for the journey from
the place of arrest to the learned Magistrate’s court, is to be
excluded for computing the 24 hours permitted to the police
to keep an accused in their custody prior to the learned
Magistrate’s authorization. Reliance is placed on the
judgment in the case of Enforcement Directorate vs. Kapil
Wadhwan & Anr reported in (2024) 7 SCC 147. Reliance is
also placed on the judgment in the case of D. K. Basu vs. State
of West Bengal (supra) to content that clause (2) of Article 22
directs that the person arrested and detained in custody shall
be produced before the nearest Magistrate within a period of
24 hours of such arrest, excluding the time necessary for the
journey from the place of arrest to the court of learned
Magistrate.
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4.8 While concluding it is submitted that clause (1) of Article
22, requires compliance, by communicating sufficient
knowledge of the basic facts, constituting the grounds of
arrest to the person arrested. In the case on hand, the
respondents have been able to satisfy that the grounds of
arrest were very much within the knowledge of the arrestee
and hence, the objection raised is hyper-technical. Moreover,
the order of remand speaks for itself, as the learned Advocate
has raised all the available contentions opposing the
application which would prove that the arrestee had sufficient
knowledge of the grounds of arrest and the opportunity was
availed of by him and his lawyer.
5. Mr Ghanshyam Upadhyay, learned Advocate for
the petitioner in rejoinder drew the attention of this Court to
page 22 of the petition. It is contended that there lies a fallacy
in the argument that the grounds were supplied inasmuch as,
the application was not given to the arrestee but the same, is
addressed to the learned Chief Judicial Magistrate. Two
applications were filed; one for taking the petitioner into
judicial custody and another the remand application. The two
documents, do not remotely suggest that the petitioner was
furnished the grounds of arrest. Bare perusal of the
averments would suggest and cannot be construed to be
grounds of arrest and were neither given to the arrestee or
his family members or relative. It is submitted that in the
remand application, there is no endorsement of the arrestee
or his lawyer of its receipt. In the absence of any endorsement
or document produced by the respondents suggesting that it
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has been served upon the petitioner; no inference can be
drawn from the language of the remand order. Rather the law
is settled that in any case the grounds of arrest has to be
supplied in writing in the language known to the arrestee,
atleast two hours before producing the arrestee before the
learned Magistrate.
5.1 It is next submitted that the affidavit-in-reply also does
not clearly state as to when and how the copy of the remand
application was served upon the arrestee. As is discernible
from the record, the arrestee had applied for the certified
copy of the remand application only in the month of
December, 2025. Therefore, the contention that the learned
Advocate for the petitioner had made submission and he had
knowledge, is misplaced. It is submitted that the moment a
grievance is raised that the grounds of arrest are not
supplied, the onus shifts on the investigating agency to satisfy
that there is sufficient compliance with the requirements of
the constitutional mandate. Besides, registration of the FIR by
itself, is not a sufficient compliance and it has to be proved
that the grounds were furnished. Reference of PML Act, GST
Act and absence of filing of FIR is also misplaced considering
the fact that in the case of Mihir Shah vs. State of Maharashta
(supra), the Apex Court has clearly held that constitutional
obligation under Article 22 is not statute-specific and it is
grounded in fundamental right of life and personal liberty
under Article 21 of the Constitution of India, therefore making
it applicable to all offences including those under the Indian
Penal Code (now BNS, 2023).
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5.2 It is submitted that the contention that the petitioner
and one Nitesh Maheshbhai Goswami were brought for the
purposes of preliminary inquiry and after recording
statement, the petitioner was arrested and the other person
was allowed to go back, is also not correct. It is not the case
of the respondents that the petitioner was not taken into
custody at 10:00 p.m. on 25.07.2025 from Gurugram,
Haryana. The custody from 10:00 p.m. on 25.07.2025 till
16:00 hrs on 27.07.2025 is stated as not an arrest; however, it
is the specific case of the petitioner that his movement was
restricted by the Investigating Authority and right from that
moment, arrest is said to be made. Formal arrest as
mentioned in the paper work is immaterial. It is submitted
that Nitesh Maheshbhai Goswami, the friend of the petitioner
had accompanied as there was a fear that the petitioner would
be subjected to torture. Further in case of arrest of a person
from a State where the offence is not registered, the
Investigating Authority is required to seek transit remand of
the arrestee as per the judgment in the Priya Indoria vs. State
of Karnataka (supra). It is urged that as the arrest is illegal
since inception on both the grounds, the petition deserves to
be allowed and petitioner may be directed to be released
forthwith.
6. Heard the learned advocates appearing for the
respective parties. Perused and considered the documents on
record, including the compilations, three in number
containing numerous judgments cited and made available on
the record.
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7. Tersely stated are the facts:
8. The captioned petition seeking writ of Habeas
Corpus is filed by the petitioner praying for direction to the
respondents to release the petitioner in connection with the
FIR No. 11189003250401/2025 dated 15.03.2025 lodged with
‘A’ Division Morbi City Police Station, for the offences
punishable under sections 336(2), 336(3), 338, 340(2), 349,
3(5), 61, 229(1), 235 and 236 of the BNS. As per the FIR, the
petitioner is alleged to have hatched the conspiracy in
connivance with another accused named in the FIR so as to
grab the valuable land bearing survey no. 602 admeasuring
15783 sq. mtrs. situated at village Vajepur, by creating forged
documents namely affidavits, heirship, death-certificates etc.
The petitioner apprehending his arrest had preferred
anticipatory bail applications before the Court of Sessions
Judge, Morbi as well as before this Court by preferring
Criminal Miscellaneous Application (for Anticipatory Bail)
no.8148 of 2025, and both the applications were rejected vide
detailed order dated 03.04.2025 and vide CAV judgment dated
01.07.2025, respectively.
9. Discernibly, the petitioner was apprehended on
25.07.2025 at about 10 p.m. by the CID Crime, Gandhinagar
from Gurugram, Haryana and was brought along with his
friend Niteshbhai Maheshbhai Goswami to Ahmedabad where
the petitioner and the police officers stayed at the hotel and
was thereafter taken to Gandhinagar, CID Crime. The
petitioner was shown to be arrested on 27.07.2025 at 16:00
hours and thereafter, was produced before the learned Chief
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Judicial Magistrate, Morbi on 28.07.2025 at 3:30 p.m.
Applications, both dated 28.07.2025, were filed by the Deputy
Superintendent of Police before the Additional Chief Judicial
Magistrate, praying for taking the petitioner in Court’s
custody and remand of the petitioner respectively. As per the
endorsement on the application dated 28.07.2025, the learned
Chief Judicial Magistrate has recorded that the petitioner was
produced at 3:30 p.m. and upon being asked the petitioner
has stated that he has no complaint against the police officers.
The petitioner was taken in judicial custody by passing an
order dated 28.07.2025. By order of the even date, the
learned Chief Judicial Magistrate, Morbi ordered police
custody remand of the petitioner till 01.08.2025 upto 11:00
a.m. Endorsement has been put by the petitioner as well as by
the learned Advocate representing the petitioner about the
contents of the order having been explained to them. It is
clear from the record that the said orders have been accepted
by the petitioner and not challenged before any higher forum.
After the investigation, charge-sheet came to be filed on
25.09.2025. The petitioner, had preferred an application
seeking regular bail, which came to be rejected vide order
date 18.10.2025. It may be noted that on 16.12.2025,
application was preferred by and on behalf of the petitioner
seeking certified/ simple copy of the remand application;
production papers, etc.
10. Perceptibly, the petitioner almost after a period of
nine months has approached this Court seeking writ of
Habeas Corpus seeking release as according to the petitioner,
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his arrest is illegal. Genesis of such prayers is the grounds,
inter alia, non-production of the petitioner before the nearest
learned Judicial Magistrate within 24 hours; absence of transit
remand and non-supply of grounds of arrest. When the issue
concerns the personal liberty of a person, the delay, is to be
considered keeping in mind the principle laid down by the
Apex Court in the case of Vihaan Kumar vs. State of Haryana
(supra). Contention was raised by the respondent therein that
the appellant being remanded to custody, the custody is
pursuant to the order taking cognizance of the charge-sheet.
The Apex Court, noted that accepting such contention would
amount to completely nullifying Articles 21 and clause (1) of
Article 22 of the Constitution and further observed that once
it is held that arrest is unconstitutional, due to violation of
clause (1) of Article 22 the arrest itself is vitiated. Relevant
paragraph 21 reads thus:
“21. An attempt was made by learned senior counsel appearing
for 1st 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.
Therefore, filing of a charge-sheet and passing of order of
cognizance would not validate an arrest which, is per se
unconstitutional being violative of Articles 21 and clause (1) ofPage 22 of 56
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Article 22 of the Constitution of India.
11. In the case on hand, remand order was passed in
the month of July, 2025 followed by filing of the charge-sheet
on 25.09.2025 before the trial Court; further followed by
rejection of the regular bail application by the court
concerned vide order dated 18.10.2025. The above
observations made by the Apex Court would directly apply to
the facts of the case inasmuch as, if this Court were to accept
the contentions raised by the petitioner that the arrest is not
as per the procedure established by law, then taking place of
subsequent events or passing of the orders would not validate
the arrest which is illegal or unconstitutional. Therefore, the
issues that arise for determination of this Court are; (i)
whether the petitioner’s arrest was in accordance with the
procedure established by law and in the terms of the
safeguards provided to a person of his personal liberty; and
(ii) whether in the facts and circumstances of the case, can it
be said that the “grounds of arrest” either orally or in writing
were provided to the petitioner or his friend or family in the
known language.
12. Contention is raised by the State that the
judgments relied upon by the petitioner may not be applicable
to the facts of the case for, the judgments were dealing with
different statutes. Therefore, it would be necessary, at the
outset, to refer to the observations made by the Apex Court in
the case of Mihir Rajesh Shah vs. State of Maharashtra
(supra) in paragraph 39:
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“39. A plain reading of Article 22(1) of the Constitution of India
shows that the intent of the constitution makers while
incorporating the provisions was not to create any exceptional
circumstances, instead it reads as “No person who is arrested
shall be detained in custody without being informed, as soon as
may be, of the grounds for such arrest….”, it casts a mandatory
unexceptional duty on the State to provide the arrested person
with the grounds of such arrest with the objective to enable
that person to be able to defend himself by consulting a legal
practitioner of his choice. This mandate of Article 22 (1) is
notwithstanding any exception. This Court has made it explicit
that the constitutional obligation under Article 22 is not
statute-specific and it is grounded in fundamental right of life
and personal liberty under Article 21 of the Constitution of
India, therefore making it applicable to all offences including
those under the IPC 1860 (now BNS 2023).”
13. The Apex Court has made it explicitly clear that the
constitutional obligation under Article 22 is not statute-
specific and it is grounded in fundamental right of life and
personal liberty under Article 21 of the Constitution of India,
and would apply to all the offences including those under the
Penal Code, 1860 (now BNS, 2023). Having said so, for
deciding the above referred issues, and before adverting to
the judgments and the celebrated principles laid down by the
Apex Court, it would be apt to refer to the provisions of
Articles 21 and 22 of the Constitution of India, and the same
are set out hereinbelow for ready reference:
21. Protection of life and personal liberty
No person shall be deprived of his life or personal liberty
except according to procedure established by law.
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 forPage 24 of 56
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such arrest nor shall he be denied the right to consult, and to
be defended by, a legal practitioner of his choice.
(2)Every person who is arrested and detained in custody shall
be produced before the nearest magistrate within a period of
twenty-four hours of such arrest excluding the time necessary
for the journey from the place of arrest to the court of the
magistrate and no such person shall be detained in custody
beyond the said period without the authority of a magistrate.
(3)Nothing in clauses (1) and (2) shall apply–
(a)to any person who for the time being is an enemy alien; or
(b)to any person who is arrested or detained under any law
providing for preventive detention.
(4)No law providing for preventive detention shall authorise the
detention of a person for a longer period than three months
unless–(a)an Advisory Board consisting of persons who are, or
have been, or are qualified to be appointed as, Judges of a High
Court has reported before the expiration of the said period of
three months that there is in its opinion sufficient cause for
such detention:
Provided that nothing in this sub-clause shall authorise the
detention of any person beyond the maximum period
prescribed by any law made by Parliament under sub-clause (b)
of clause (7); or
(b)such person is detained in accordance with the provisions of
any law made by Parliament under sub-clauses (a) and (b) of
clause (7).
(5)When any person is detained in pursuance of an order made
under any law providing for preventive detention, the authority
making the order shall, as soon as may be, communicate to
such person the grounds on which the order has been made
and shall afford him the earliest opportunity of making a
representation against the order.
(6)Nothing in clause (5) shall require the authority making any
such order as is referred to in that clause to disclose facts
which such authority considers to be against the public interest
to disclose.
(7)Parliament may by law prescribe–(a)the circumstances
under which, and the class or classes of cases in which, a
person may be detained for a period longer than three months
under any law providing for preventive detention without
obtaining the opinion of an Advisory Board in accordance with
the provisions of sub-clause (a) of clause (4);
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(b)the maximum period for which any person may in any class
or classes of cases be detained under any law providing for
preventive detention; and
(c)the procedure to be followed by an Advisory Board in an
inquiry under sub-clause (a) of clause (4).”
Article 21 of the Constitution of India, the cherished
fundamental right provides protection of life and personal
liberty of a person. It states that no person shall be deprived
of his life or personal liberty except according to procedure
established by law. Furthermore, clause (1) of Article 22, is in
two parts enumerating two requirements namely that the
arrested person, at the earliest, be provided with the grounds
of arrest coupled with a further opportunity of consulting a
legal practitioner of his choice and to be defended by him. The
underlying purpose is to provide an opportunity to the
arrestee, to make him understand the alleged accusation
against him and also further opportunity to him to defend or
challenge the same on the permissible grounds through a
legal practitioner. Clause (2) of Article 22 provides that the
person arrested and detained in custody shall be produced
before the nearest learned Magistrate within a period of 24
hours after excluding the time necessary for the journey from
the place of arrest to the court of learned Magistrate.
14. For the sake of completeness and in continuation of
the above referred provisions, the relevant provisions of the
BNSS, are also worth referring to.
“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 fullPage 26 of 56
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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.
58. Person arrested not to be detained more than twenty-
four hours.
No police officer shall detain in custody a person arrested
without warrant for a longer period than under all the
circumstances of the case is reasonable, and such period shall
not, in the absence of a special order of a Magistrate under
section 187, exceed twenty-four hours exclusive of the time
necessary for the journey from the place of arrest to the
Magistrate’s Court, whether having jurisdiction or not.
187. Procedure when investigation cannot be completed
in twenty-four hours.
(1)Whenever any person is arrested and detained in custody,
and it appears that the investigation cannot be completed
within the period of twenty-four hours fixed by section 58, and
there are grounds for believing that the accusation or
information is well-founded, the officer in charge of the police
station or the police officer making the investigation, if he is
not below the rank of sub-inspector, shall forthwith transmit to
the nearest Magistrate a copy of the entries in the diary
hereinafter specified relating to the case, and shall at the same
time forward the accused to such Magistrate.
(2)The Magistrate to whom an accused person is forwarded
under this section may, irrespective of whether he has or has
no jurisdiction to try the case, after taking into consideration
whether such person has not been released on bail or his bail
has been cancelled, authorise, from time to time, the detention
of the accused in such custody as such Magistrate thinks fit, for
a term not exceeding fifteen days in the whole, or in parts, at
any time during the initial forty days or sixty days out of
detention period of sixty days or ninety days, as the case may
be, as provided in sub-section (3), and if he has no jurisdiction
to try the case or commit it for trial, and considers further
detention unnecessary, he may order the accused to be
forwarded to a Magistrate having such jurisdiction.
(3)The Magistrate may authorise the detention of the accused
person, beyond the period of fifteen days, if he is satisfied that
adequate grounds exist for doing so, but no Magistrate shall
authorise the detention of the accused person in custody under
this sub-section for a total period exceeding-(i) ninety days,
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where the investigation relates to an offence punishable with
death, imprisonment for life or imprisonment for a term of ten
years or more;(ii) sixty days, where the investigation relates to
any other offence, and, on the expiry of the said period of
ninety days, or sixty days, as the case may be, the accused
person shall be released on bail if he is prepared to and does
furnish bail, and every person released on bail under this sub-
section shall be deemed to be so released under the provisions
of Chapter XXXV for the purposes of that Chapter.
(4)No Magistrate shall authorise detention of the accused in
custody of the police under this section unless the accused is
produced before him in person for the first time and
subsequently every time till the accused remains in the custody
of the police, but the Magistrate may extend further detention
in judicial custody on production of the accused either in
person or through the audio-video electronic means.
(5)No Magistrate of the second class, not specially empowered
in this behalf by the High Court, shall authorise detention in
the custody of the police.Explanation I.-For the avoidance of
doubts, it is hereby declared that, notwithstanding the expiry of
the period specified in sub-section (3), the accused shall be
detained in custody so long as he does not furnish bail.
Explanation II.-If any question arises whether an accused
person was produced before the Magistrate as required under
sub-section (4), the production of the accused person may be
proved by his signature on the order authorising detention or
by the order certified by the Magistrate as to production of the
accused person through the audio-video electronic means, as
the case may be:Provided that in case of a woman under
eighteen years of age, the detention shall be authorised to be in
the custody of a remand home or recognised social institution:
Provided further that no person shall be detained otherwise
than in police station under police custody or in prison under
judicial custody or a place declared as prison by the Central
Government or the State Government.
(6)Notwithstanding anything contained in sub-section (1) to
sub-section (5), the officer in charge of the police station or the
police officer making the investigation, if he is not below the
rank of a sub-inspector, may, where a Magistrate is not
available, transmit to the nearest Executive Magistrate, on
whom the powers of a Magistrate have been conferred, a copy
of the entry in the diary hereinafter specified relating to the
case, and shall, at the same time, forward the accused to such
Executive Magistrate, and thereupon such Executive
Magistrate, may, for reasons to be recorded in writing,
authorise the detention of the accused person in such custody
as he may think fit for a term not exceeding seven days in thePage 28 of 56
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aggregate; and, on the expiry of the period of detention so
authorised, the accused person shall be released on bail except
where an order for further detention of the accused person has
been made by a Magistrate competent to make such order;
and, where an order for such further detention is made, the
period during which the accused person was detained in
custody under the orders made by an Executive Magistrate
under this sub-section, shall be taken into account in
computing the period specified in sub-section (3):
Provided that before the expiry of the period aforesaid, the
Executive Magistrate shall transmit to the nearest Judicial
Magistrate the records of the case together with a copy of the
entries in the diary relating to the case which was transmitted
to him by the officer in charge of the police station or the police
officer making the investigation, as the case may be.
(7)A Magistrate authorising under this section detention in the
custody of the police shall record his reasons for so doing.
(8)Any Magistrate other than the Chief Judicial Magistrate
making such order shall forward a copy of his order, with his
reasons for making it, to the Chief Judicial Magistrate.
(9)If in any case triable by a Magistrate as a summons-case, the
investigation is not concluded within a period of six months
from the date on which the accused was arrested, the
Magistrate shall make an order stopping further investigation
into the offence unless the officer making the investigation
satisfies the Magistrate that for special reasons and in the
interests of justice the continuation of the investigation beyond
the period of six months is necessary.
(10)Where any order stopping further investigation into an
offence has been made under sub-section (9), the Sessions
Judge may, if he is satisfied, on an application made to him or
otherwise, that further investigation into the offence ought to
be made, vacate the order made under sub-section (9) and
direct further investigation to be made into the offence subject
to such directions with regard to bail and other matters as he
may specify.”
15. In connection with the above cherished
fundamental rights, and the relevant applicable provisions,
the petitioner has raised the contention that although on
paper the arrest is shown on 27.07.2025 at 4:00 p.m., the
movement of the petitioner was restricted since 25.07.2025 at
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10:00 p.m. It is also argued that as the movement of the
petitioner was restricted since 25.07.2025, the investigating
officer ought to have prayed for transit remand and having
failed to do so and non-production of the petitioner before the
learned Chief Judicial Magistrate within 24 hours, has
rendered the arrest of the petitioner illegal and the petitioner
deserves to be set free. Besides, the petitioner has challenged
his arrest on the premise that the “grounds of arrest” were
neither provided to the petitioner nor to his family members
or friends, either orally or in writing and in the language
known to them. Hence, the arrest of the petitioner is against
the established procedure of law and in violation of the
fundamental rights as enshrined under Article 21 read with
clauses (1) and (2) of Article 22 of the Constitution of India as
well as sections 50, 57 and 167 of the Code of Criminal
Procedure (corresponding sections 47, 58 and 187 of the
BNSS).
16. Adverting to the issue that the petitioner was
arrested on 25.07.2025 and only with a view to curing the
illegality the custody from 25.07.2025 to 27.07.2025 is
termed as a voluntary accompaniment for preliminary inquiry,
notably FIR was registered on 15.03.2025 for the offences
punishable under sections 3(5), 336(2) and (3), 338, 339,
340(2) of the BNS with the ‘A’ Division Morbi City Police
Station and the petitioner is arraigned as an accused no. 2.
The application seeking anticipatory bail was preferred by the
petitioner which was opposed by the State alleging that the
applicant is an accused and in connivance with others, has
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hatched a conspiracy and committed a serious offence; clearly
claiming that for the purpose of interrogation, custody of the
petitioner is necessary. Similarly, anticipatory bail application
filed before this Court was opposed alleging that
investigation is in the process and custodial interrogation of
the applicant is necessitated. The stand taken by the learned
Additional Public Prosecutor before this Court opposing the
anticipatory bail of the applicant and recorded in paragraph
10 of the CAV Judgment dated 01.07.2025 is set out
hereinbelow for ready reference:
“10. Learned APP Mr. Sharma further submits that in fact
co-accused Shantaben is 70 years illiterate lady and could
not be able to authorise the document by signing it. He
further submits that bank account of the said co-accused has
been opened and operated by the present applicant and said
fact is also verified from the statement of the Bank Manager.
He further submits that the co-accused did not receive a
single penny from the said transaction and said fact is also
found out from certain transactions took place in the account
of the applicant and the co-accused. He has produced a chart
and submitted that the entire money had been routed
through different accounts. He further submits that total
amount of Rs.94,50,000/- had come in to the account of the
present applicant by rotating it through the accounts of A. J.
Enterprise, R. C. Enterprise and West Cost Enterprise.
Thereafter, an amount of Rs.83,70,000/- had been
transferred in the account of the co-accused by the present
applicant and on the strength of the said entries made in the
bank statement, applicant has executed registered sale deed
in his favour. Those entries are mentioned in the sale deed.
He further submits that thereafter from the account of the
co-accused, the said amount had firstly gone into the account
of Meet Enterprise of the ownership of Mr. Jagir Kiritkumar
Khant and from there the amount had gone into the account
of Mr. Harshad Bhalodiya and Yash Vaghariya and those
persons have paid the said amount in cash to the applicant.
Learned APP Mr. Sharma submits that the aforesaid
evidence/material clearly goes on to show how the money
has been routed through various accounts and once again
returned to the applicant. He further submits that the
investigating officer has also recorded the statements of all
those persons (various accountant holders) and they have
very categorically stated that at the instance of the presentPage 31 of 56
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applicant they had acted in a particular manner and for the
purpose of acting in such a manner and doing that work,
they obtained certain amount as a commission from the
applicant. The aforesaid documents and materials available
on record crystallized the case of the prosecution that a well
designed plan has been organized by the present applicant
with a sole intent to usurp valuable property of the gullible
persons. He further submits that the Bank Account of the co-
accused was also opened and operated by the applicant and
the said fact is also found out from the statement of the Bank
Officer. He further submits that the investigation is still
going on and with a view to get details of the involvement of
other accused persons in the commission of crime, custodial
interrogation of the applicant is badly needed. He submits
that thus considering the aforesaid overall facts of the
present case, this is a fit case wherein the Court may not
have to exercise discretionary powers by enlarging the
applicant on anticipatory bail. ”
As can be seen, it was argued by the learned Additional Public
Prosecutor before this court that as per the statements
recorded by the investigating officers of all the persons
concerned, they have categorically stated that at the instance
of the applicant i.e. the petitioner herein, they had acted in a
particular manner and for which, they have received certain
amount as a commission. The learned Additional Public
Prosecutor has also further argued that the evidence and/or
material clearly goes to show how the money has been routed
through various accounts and that the documents and
materials available on record supports the case of the
investigating officers that a well designed plan has been
structured by the applicant with a sole intent to usurp
valuable property of the gullible person. Having taken the
aforesaid stand, it is difficult to fathom the nature of the
subsequent preliminary inquiry to be carried out by the
investigating officers inasmuch as, the evidence, the material
was available and on the top of it the petitioner was arraigned
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as an accused in the FIR lodged in the month of March, 2025.
Therefore, the stand taken by the respondents in the affidavit
that the preliminary inquiry was yet to be conducted and only
upon getting some clue that the petitioner could have been
arrested but was not arrested on 25.07.2025, cannot be
accepted. Pertinently, the investigating officers visited
Gurugram, and took the control of the petitioner and brought
him to Ahmedabad via Delhi and thereafter to Gandhinagar.
Though it is claimed that it was only for the limited purpose of
preliminary inquiry, had it been a part of the preliminary
inquiry, there ought to have been a semblance of inquiry;
however, there is none except, recording of the statement of
the Niteshbhai Maheshbhai Goswami on 25.07.2025 but, not
of the petitioner. The petitioner has clearly taken a stand that
the petitioner was taken into custody and was in complete
control of the investigating officer resulting into restricting
the movement of the petitioner. The said contention, has
been dealt with by the respondents by simply stating in
paragraph 5 of the reply that:
“5. In response to the primary contention raised in the
petition as mentioned hereinabove, it is submitted that the
petitioner was not arrested on 25.07.2025, from Gurugram
Haryana, in fact, the petitioner and his friend Nitesh
Maheshbhai had voluntarily agreed to cooperate with the
proceedings and therefore, they were brought from Gurugram
Haryana to Gandhinagar, Gujarat via Delhi only for the purpose
of preliminary inquiry. In fact to dislodge the contention raised
by the petitioner that he 46 was arrested on 25.07.2025, it is
submitted before the Hon’ble Court the said contention stands
nullified by the fact that Nitesh Maheshbhai who had
accompanied the present petitioner was also brought, however,
after preliminary inquiry he was permitted to go therefore,
when preliminary inquiry is being carried out and the officer
does not come to a conclusion of arrest therefore, there was no
reason at the relevant point of time on 25.07.2025, to arrest the
petitioner. It is further submitted that even otherwise, fromPage 33 of 56
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Gurugram Haryana to Gandhinagar the total duration of
traveling is more than 24 Hours therefore, most of the time was
consumed in travelling. It is submitted that the arrest memo
annexed to the petition (at Annexure-D Page 28) clearly reflects
that he has been arrested on 27.07.2025 at 16:00 Hours by the
CID Crime Gandhinagar. In fact, even the remand application
dated 28.07.2025 (at Annexure-C Page 22), clearly reflects that
preliminary inquiry was made thereafter, medical and other
examinations were carried out and only thereafter, on
27.07.2025, at 16:00 Hours he was arrested. At this juncture it
is worth placing before the Hon’ble Court that even if very
strict presumption of 24 Hours is to be drawn then also if the
time consumed travelling from Gurugram Haryana to
Gandhinagar, Gujarat via Delhi and carrying out medical and
other formality is considered, the arrest on 27.07.2025 at 16:00
Hours cannot be said to be bad. In fact, when the present
petitioner was produced before the Ld. Court concerned, on
28.07.2025, neither any grievance was raised nor a whisper
with regards to the any of the averments made in this petition
in context of Section 57 and 167 of the Code of Criminal
Procedure now Section 58 and 187 of the BNSS Act 2023 or
Section 50 of the Code of Criminal now Section 47 of the BNSS
Act 2023 either by the petitioner or by his representing
counsel. In fact, even at the time of remand application 47
dated 28.07.2025 and thereafter, the present petitioner was
represented by his counsel before the Ld. Trial Court and
arguments were made. The petitioner was made aware about
all the details and grounds of arrest orally and his counsel had
perused all the papers and thereafter, had argued the case
before the ld.Court. ”
The fact remains that the petitioner was not free to move
around on his own volition and was all throughout in the
custody of the investigating officers. Nothing is placed on
record by the respondent to substantiate that from 25.07.2025
to 27.07.2025, the petitioner was not taken into custody. In
this behalf, it is interesting to note the averments made in the
application dated 28.07.2025, for handing over the custody of
the petitioner, wherein in the second paragraph, terming the
petitioner as accused it is stated that the accused is detained
from Signature Global Golf Greece Residency, Section 79,
Gurugaon, Haryana and was brought by road to Gandhinagar.
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Although it is sought to be argued by the respondent-State
that the petitioner was arrested only on 27.07.2025, such
stand is not in sync with their own understanding as reflected
in the application dated 28.07.2025 while handing over the
custody. Therefore, it is clear that since 25.07.2025, the
petitioner was deprived of his personal liberty to move around
and was not at liberty to go wherever he wished to. Clearly,
the petitioner, was prevented from moving as per his freewill
and was under strict supervision and complete control of the
investigating officers inasmuch as, the petitioner was brought
from Gurugram to Ahmedabad and was taken to Gandhinagar.
Therefore, the contention of the investigating officer that
when the preliminary inquiry was being carried out and in the
absence of any conclusion of arrest there was no reason at the
relevant point of time i.e. on 25.07.2025 to arrest the
petitioner, is misplaced. Moreover, in the FIR the petitioner is
arraigned as an accused and the anticipatory bail applications
filed by the petitioner before the trial court and this Court,
were opposed tooth and nail, raising the ground that the
custody of the petitioner is very much necessary. Therefore,
this Court is of the considered opinion that the petitioner was
apprehended rather arrested on 25.07.2025 at 10:00 p.m. and
the respondents having failed to produce him before the
nearest learned Judicial Magistrate First Class within 24
hours of the arrest, the arrest of the petitioner stands vitiated
for non-compliance of the statutory as well as constitutional
mandate.
17. In continuation, further contention is raised by the
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petitioner that the respondents ought to have prayed for
transit remand from the nearest learned Magistrate and
having failed to do so, the arrest is illegal. Pertinently, the
respondents since inception, have portrayed that the arrest
was made only on 27.07.2025 and the petitioner was
produced before the learned Chief Judicial Magistrate on
28.07.2025 at 3:30 p.m. i.e. within 24 hours and hence, there
was no need of applying for the transit remand as the
provision permits exclusion of the time necessary for the
journey. In the case on hand, either of the parties have not
placed on record the details regarding the travel time.
Assuming without concluding that for covering the distance
from Gurugram to Ahmedabad, approximate time consumed
would be around 15 hours and if one adds 15 hours to the 24
hours period from 25.07.2025 10:00 p.m., it would be coming
to an end on 27.07.2025 at around 1:00 p.m. In any event the
petitioner ought to have been produced before the learned
Chief Judicial Magistrate latest by 6:00 p.m. on 27.07.2025
(i.e. 15 hours + 24 hours + 5 hours(buffer period)); however,
the petitioner was produced only on 28.07.2025 at 3:30 p.m.
Even after excluding the travel time, the petitioner cannot be
said to have been produced within 24 hours. In such an
eventuality, it was expected of the respondents to have opted
for transit remand; however, no such transit remand is prayed
for despite the admitted position as is evident from the record
that the petitioner was detained on 25.07.2025 at 10:00 p.m.
On reading Section 58 in juxtaposition with sub-section (1) of
section 187, it is clear that a person arrested shall not be
detained for more than 24 hours, (excluding the time
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necessary for the journey) and shall be produced before the
nearest learned Magistrate, whether having jurisdiction or
not. Considering the settled principle of law as enunciated by
the Apex Court, in the case of Priya Indoria vs. State of
Karnataka (supra) and specially, paragraphs 87 to 89, the
investigating agencies were obligated to secure the transit
remand. The same are reproduced hereinbelow for ready
reference:
“87. Considering that the nature of criminal law regime in In-
dia, entwined with State amendments, the exercise of the juris-
diction for grant of extra-territorial anticipatory bail must be
cognizant of the possibility of forum shopping. We also deem it
necessary to take note of the evolution of the law on inter-state
arrests, as this lies at the heart of ‘apprehension of arrest,’ for
which the extraordinary jurisdiction of the High Court and
Court of Session are attracted in case the accused resides in or
is located in a territorial jurisdiction different from the jurisdic-
tion in which cognizance of crime is taken by the Court of com-
petent jurisdiction.
88. Section 48 of CrPC permits the police to pursue an accused
in other jurisdictions. A police officer, for the purpose of arrest-
ing without a warrant, one whom he is allowed to arrest, may
pursue an individual anywhere in India. Prior to effecting the
arrest outside a particular jurisdiction, the police is obligated to
secure the transit remand i.e. the remand of the accused, for
taking him from one place to another in their own custody, usu-
ally for the purpose of producing him before the concerned
magistrate who has jurisdiction to try/commit the case. The pri-
mary purpose of such a remand is to enable the police to shift
the person in custody from the place of arrest to the place
where the matter can be investigated and tried. However in
various cases, the police and investigating agencies have failed
to exercise necessary restraint while functioning within their
legal remit. It is for the aforesaid reason that an accused appre-
hending arrest seeks pre-arrest bail. The Courts in India have
to be vigilant about such applications being filed particularly
when a person alleged to have committed an offence can be
proceeded with by setting the criminal law in motion in a place
other than the place where the offence has actually occurred.
In such circumstances the Courts must balance the interest of
the accused in the context of the salutary principle of access to
justice which is a facet of Article 21 of the Constitution as well
as a Directive Principle of State Policy, especially ArticlePage 37 of 56
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39(A). More importantly, it is a facet of Article 14 of the Consti-
tution which guarantees to every person in the country, equal-
ity before the law and equal protection of the law.
89. In this case, we are concerned with what is loosely
termed as ‘transit anticipatory bail’. As we have seen, the ex-
pression ‘anticipatory bail’ is not defined in the CrPC though it
is traceable to Section 438 of CrPC This Court in Balchand Jain
had defined anticipatory bail to mean bail in anticipation of ar-
rest. The Constitution Bench in Gurbaksh Singh Sibbia has held
that filing of FIR is not a condition precedent for exercising
power under Section 438 of CrPC What is required for invoca-
tion of power under Section 438 is that the person seeking an-
ticipatory bail should show reasonable belief of imminent ar-
rest. If the expression ‘anticipatory bail’ is not a defined expres-
sion, then it is quite but natural that the larger expression
‘transit anticipatory bail’ would not find any exposition in
the CrPC. Perhaps the need and necessity for transit anticipa-
tory bail has occasioned because the police has been conferred
power under the CrPC to pursue an accused in other jurisdic-
tions. Immediately upon affecting the arrest of a person outside
the jurisdiction where the offence is registered, the police is ob-
ligated to secure a transit remand. The arrested person has to
be produced before the nearest magistrate. If such a magis-
trate finds that he has no jurisdiction to try the case in which
the accused has been arrested, he may order the accused to be
forwarded to a magistrate having the jurisdiction to try the
case or to commit it for trial. Thus, the police is obligated to se-
cure a transit remand of the accused for taking him from the
place where he is arrested to the place where the crime is reg-
istered, for production before the competent magistrate in
terms of the requirement of Article 22. As we have already
noted, the primary purpose of such a transit remand is to en-
able the police to shift the person in custody from the place of
arrest to the place where the matter can be investigated. It ap-
pears that from the aforesaid requirement of transit remand,
has arisen the necessity of ‘transit anticipatory bail’ for, an af-
fected person cannot be without a remedy.”
Therefore, on both the counts, this Court is of the opinion that
the arrest of the petitioner on 25.07.2025 is against the
provisions of law and stands vitiated.
18. Although, the above referred ground, is sufficient
to allow the writ petition; for the sake of completeness this
Court, shall deal with second contention regarding non-supply
of grounds of arrest to the petitioner. Before dealing with the
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said contention, at this stage, it may be noted that heavy
reliance is placed by the petitioner on the judgment in the
case of Mihir R. Shah vs. State of Maharashtra (supra) and
especially paragraph 56, which reads thus:
“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 IPC 1860 (now BNS 2023);
ii) The grounds of arrest must be communicated in writing to
the arrestee in the language he/she understands;
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.
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.”
It is argued that the Apex Court, has held and observed that
where the arresting officer is unable to communicate the
grounds of arrest in writing on or soon after arrest, it be so
done orally. It has been further argued that the grounds be
communicated in writing within a reasonable time and in any
case atleast two hours prior to production of the arrestee for
remand proceedings before the Magistrate. The requirement
of communicating the grounds of arrest in writing atleast two
hours prior to the production of the arrestee, in terms of the
observations made in paragraph 58 of the judgment, would
not apply to the facts of the case inasmuch as, the petitioner is
arrested on 25.07.2025 whereas, in the judgment of the Apex
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Court, it is clarified that the procedure as affirmed shall
govern the arrests henceforth i.e. the arrests made on and
after 06.11.2025. Paragraph 58 reads thus:
“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
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.”
19. Another issue raised is regarding non-supply of the
grounds of arrest either orally or in writing to the petitioner
and in the opinion of this Court, the said contention deserves
to be answered in favour of the petitioner and against the
respondent for the reasons discussed hereinafter.
20. Discernibly, the petitioner, was produced before
the learned Chief Judicial Magistrate on 28.07.2025 (page 22
of the compilation) incorporating the reasons for arrest.
Accepting the said application, the learned Chief Judicial
Magistrate has recorded to the effect that the arrestee is
produced at 3:30 p.m. and upon being asked, he has no
complaint against the police officer. The endorsement further
suggests that the arrestee is taken in judicial custody.
Besides, application seeking remand of even date was filed;
however, there is nothing on record to suggest that the said
application was served upon the petitioner except arguing
that from the order dated 28.07.2025 passed by the learned
Additional Chief Judicial Magistrate, it is clear that the
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learned Advocate was aware about the grounds of arrest and
accordingly had made the submissions. The said stand is
stated to be rejected inasmuch as, the requirement of the law
is that the accused/arrestee and/or family or relative should
be served with the grounds of arrest either orally or in writing
and in the language known to him in a meaningful manner.
Besides, the arrest memo which is placed on record (Annexure
D) does not specify the grounds of arrest except mentioning
the provisions of the BNS, the name and address of the
petitioner, the place of the arrest and in whose presence the
arrest was made and the telephone numbers.
21. At the cost of repetition, it may be noted that by
now it is well settled that the constitutional obligation under
Article 22 is not a statute-specific and it is grounded in
fundamental right of life and personal liberty under Article 21
of the Constitution of India, therefore, making it applicable to
all offences including those under the Indian Penal Code,
1860. Keeping this in mind, for the issue of providing the
grounds of arrest, apt would be the judgment of the Apex
Court in the case of Prabir Purkayastha vs. State (supra).
Relevant paragraphs 27 to 30 read thus:-
“27. Thus, there is no hesitation in the mind of this Court that
the submission of learned ASG that in a case of preventive
detention, the grounds of detention need not be provided to a
detenue in writing is ex facie untenable in eyes of law.
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) ofPage 41 of 56
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the Constitution of India would ipso facto apply to Article 22(1) of
the Constitution of India insofar 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.
30. Furthermore, the provisions of Article 22(1) have already
been interpreted by this Court in Pankaj Bansal(supra) laying
down beyond the pale of doubt that the grounds of arrest must be
communicated in writing to the person arrested of an offence at
the earliest. Hence, the fervent plea of learned ASG that there
was no requirement under law to communicate the grounds of
arrest in writing to the accused appellant is noted to be rejected.”
22. Relevant would also be the recent judgment of the
Apex Court in the case of Kasireddy Upender Reddy vs. State
of Andhra Pradesh(supra) Paragraphs 16 to 36 are
reproduced hereinbelow for ready reference :-
“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:
“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 farrest 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 reported in (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 notPage 42 of 56
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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.
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 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.
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 ofPage 43 of 56
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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.
16.An attempt was made by learned Senior counsel
appearing for 1st 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.
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.
18. In the present case, 1st respondent relied upon an
entry in the case diary allegedly made at 6.10 p.m. on
10th 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 1st 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 aPage 44 of 56
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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.
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.
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.
CONCLUSIONS
21. Therefore, we conclude:
a) The requirement of informing a person arrested of
grounds of arrest is a mandatory requirement of Article
22(1);
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 hePage 45 of 56
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understands. The mode and method of communication
must be such that the object of the constitutional
safeguard is achieved;
c) When arrested accused alleges non-compliance 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);
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);
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
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.” (Emphasis
supplied)
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:
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 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 toPage 46 of 56
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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.
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 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.” (Emphasis supplied)
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.
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.
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).
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).
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.
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.
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.
h) The grounds of arrest should not only be provided to the
arrestee but also to his family members and 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.
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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20. In this appeal our endeavor would be to consider whether the
grounds of arrest supplied to the appellant’s son at the time of
his arrest could be said to be meaningful and sufficient enough to
give a broad idea to the person arrested of the accusations
levelled and as to why he was being taken into custody.
21. Having looked into the grounds of arrest which were supplied
to the son of the appellant at the time of his arrest, it is difficult
for us to take the view that the grounds do not make any sense or
are not meaningful or are just an eyewash.
22. In the case of State of Bombay v. Atma Ram reported in 1951
SCC 43 : AIR 1951 SC 157 (C), it was held by this Court that, the
test is whether the communication of the grounds of arrest is
sufficient to enable the detained person to make a representation
at the earliest opportunity.
23. Similarly in the case of Magan Lal Jivabhai, in re, AIR 1951
Bom 33(D), it was held that, the only possible and reasonable
construction that can be put upon the language of Article 22(6) is
that the detaining authority, while furnishing grounds of
detention, is required to state the facts on account of which he is
satisfied that the detention is necessary in the interest of the
security of the State, maintenance, of public order, etc.
24. The only privilege a detaining authority can claim against the
disclosure of facts is on the grounds of public interest. If no facts
at all leading to the detention of a detenu are to be mentioned in
the grounds which are to be furnished to him, then obviously the
intention underlying the enactment of Article 22(6) would be
frustrated.
25. In both the cases referred to above, the persons had been
detained under the provisions of Preventive Detention Act. The
information to be supplied to such a person is governed by Clause
(5) of Article 22. In the present case, the son of the appellant has
been arrested for specific offences as mentioned in the grounds
of arrest. His case is governed by Clause (1) and not by Clause
(5) of Article 22. However, under both the clauses, certain
information has to be supplied to the person arrested and
detained.
26. Under Clause (1), the ground for arrest has to be
communicated to the person arrested. Under Clause (5) the
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grounds on which the order of detention has been made has to be
communicated to the person detained.
27. The object underlying the provision that the grounds of arrest
should be communicated to the person arrested has been very
succinctly explained in Vihaan Kumar (supra). On learning about
the grounds for arrest, the person concerned will be in a position
to make an application before the appropriate Court for bail, or
move the High Court for a writ of habeas corpus. Further, the
information will enable the arrested person to prepare his
defence in time for the purposes of his trial. For these reasons, it
has been provided by the Constitution that, the ground for the
arrest must be communicated to the person arrested as soon as
possible.
28. For the purposes of Clause (1) of Article 22, it is not
necessary for the authorities to furnish full details of the offence.
However, the information should be sufficient to enable the
arrested person to understand why he has been arrested. The
grounds to be communicated to the arrested person should be
somewhat similar to the charge framed by the Court for the trial
of a case.
29. The rule in Article 22(1) that a person upon being arrested
must be informed of the grounds of arrest is similar to, though
not exactly identical with, the rules prevailing in England and in
United States of America. The rule prevailing in England is that
“in normal circumstances an arrest without warrant
either by a policeman or by a private person can be
justified only if it is an arrest on a charge made known
to the person arrested”; (per Viscount Simon L.C. in —
‘Christie v. Leachinsky (1947 AC 573 at p. 586(F).”
30. It is a rule of common law and is described in different
languages by different authorities, but the meaning is the same;
the arrested person must be told for what he is arrested or be
informed of the cause of his arrest. In the United States the
accused has the constitutional right “to be informed of the nature
and cause of the accusation”; see 6th Amendment to the American
Constitution. In Hooper v. Lane, (1857) 6 HLC 443 : 10 ER 1368
(G), one of the reasons for the rule was said to be that the person
arrested should know whether he is or is not bound to submit to
the arrest. In Christie v.Leachinsky reported in (1947) AC 573
Lord Simonds observed at page 591 as thus:
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“Putting first things first, I would say that it is the right
of every citizen to be free from arrest unless there is in
some other citizen, whether a constable or not, the
right to arrest him. And I would say next that it is the
corollary of the right of every citizen to be thus free
from arrest that he should be entitled to resist arrest
unless that arrest is lawful. How can these rights be
reconciled with the proposition that he may be arrested
without knowing why he is arrested? ……. Blind,
unquestioning obedience is the law of tyrants and of
slaves: it does not yet flourish on English soil”.
31. Professor Glanvile L. Williams in his article “Requisites of a
Valid Arrest” in (1954) Criminal Law Review, at page 16,
criticised the reason given by Lord Simonds as “somewhat
legalistic” because very few people know the law of arrest in
such a way that they can decide on the spot whether the arrest
to which they are being subjected to is legal. In his opinion, the
true reason is a different one, e.g., the reason given by Viscount
11th Simon L.C. in the same case at page 588 in the following
words:
“If the charge on suspicion of which the man if arrested
is then and there made known to him, he has the
opportunity of giving an explanation of any
misunderstanding or of calling attention to other
persons for whom he may have been mistaken with the
result that further inquiries may save him from the
consequences of false accusation.”
32. Another reason given by Lord Simonds at page 592 is that
the arrested person may without a moment’s delay take such
steps as will enable him to regain freedom. One more reason is
that it acts as a safeguard against despotism and over-zeal. As
remarked by Professor Glanville L. Williams (supra), at page 17:
“the rule has the effect of preventing the police from
arresting on vague general suspicion, not knowing the
precise crime suspected but hoping to obtain evidence
of the commission of some crime for which they have
power to arrest”.
33. In McNabb v. United States of America reported in (1943)
318 US 332 (H), Frankfurter, J. observed at page 343:
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“Experience has therefore counselled that safeguards
must be provided against the dangers of the
overzealous as well as the despotic …………….
Legislation such as this, requiring that the police must
with reasonable promptness show legal cause for
detaining arrested persons, constitutes an important
safeguard”.
34. In United States v. Cruikshank reported in (1876) 92 US 542,
it was observed by Waite C.J. that the accused is given the right
to have a specification of the charge against him in order that he
may decide whether he should present his defence by motion to
quash, demurrer or plea.
35. The debates of the Constituent Assembly which framed the
Constitution are relevant for the purpose of ascertaining the
reason behind the insertion of a certain Article in the
Constitution. In the Draft of the Constitution, the Article
corresponding to the Article under consideration was Article
15A. The reason given for the inclusion of the said Article was
that it contained safeguards against illegal or arbitrary arrests (9
Constituent Assembly Debates, p. 1497).(See: Vimal Kishore
Mehrotra v. State of Uttar Pradesh, AIR 1956 All 56)
36. If a person is arrested on a warrant, the grounds for reasons
for the arrest is the warrant itself; if the warrant is read over to
him, that is sufficient compliance with the requirement that he
should be informed of the grounds for his arrest. If he is arrested
without a warrant, he must be told why he has been arrested. If
he is arrested for committing an offence, he must be told that he
has committed a certain offence for which he would be placed on
trial. In order to inform him that he has committed a certain
offence, he must be told of the acts done by him which amounts
to the offence. He must be informed of the precise acts done by
him for which he would be tried; informing him merely of the law
applicable to such acts would not be enough. (See: Vimal Kishore
Mehrotra (supra)”
23. Heavy reliance is placed by the learned Additional
Public Prosecutor on the said judgment to contend that if the
grounds of arrest are within the knowledge of the person
arrested, or he is told why he has been arrested or about the
commission of certain offence for which he would be put to
trial, then the condition stands satisfied. In the case on hand,Page 52 of 56
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there is not a whisper or semblance of any material produced
through which it can be said that the petitioner was informed
orally much less in writing about the grounds of his arrest.
Thus, in the absence of compliance of the said requirement
merely on the basis that the learned Advocate while opposing
the application of remand has argued the matter, would not
be sufficient. Therefore, on this count as well, the arrest of the
petitioner stands vitiated and the petitioner deserves to be set
free.
24. Accordingly, the petitioner is directed to be
released forthwith and set at liberty. Pertinently, the FIR is
lodged and in furtherance thereof, upon completion of the
investigation, charge-sheet is already filed and the matter is
pending before the court concerned; however, we clarify that
the findings recorded hereinabove that the arrest of the
petitioner is illegal, shall not affect the merits of the charge-
sheet and the case pending before the court concerned.
Needless to further clarify that the trial court shall be at
liberty to impose conditions to its satisfaction (including
requiring personal bond and surety of the petitioner) and
other such conditions as it may deem fit. Moreover, the
petitioner shall make himself available as and when required
and cooperate with the proceedings before the trial court.
25. Before parting, we would like to express our
displeasure for what happened before this Court during the
course of the hearing. The learned advocate appearing for the
petitioner requested this Court that he is desirous of filing the
written submissions to which, it was conveyed that the CourtPage 53 of 56
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has recorded the submissions and written submissions are not
required. Despite which, there was insistence shown by the
learned advocate for the petitioner stating that by no means
this Court can refuse to accept the written submissions.
Requiring the written submissions would be the discretion of
the Court and not the discretion or insistence on the part of
the learned Advocate. As the request of the learned Advocate
was refused by this Court, it was expected of the learned
Advocate to have acceded to the refusal and have not filed the
written submissions; however, exhibiting adamant attitude the
learned Advocate chose to file it with the Registry through e-
mail mode which was operating during the Covid time. Such
attempt, on the part of the learned Advocate is deprecated.
Even in the past, this Court on 05.05.2026, had to pass the
following order:
“1. Yesterday Mr. Ghanshyam Upadhyay, learned advocate
appearing with Mr. Dennis Mavadhiya, learned advocate for the
petitioner had made submissions at length in the post lunch
session on the facts and has placed on record the compilation of
judgments. Compilations-1 and 2 contain as many as twenty
judgments and compilation-3 contains fifteen judgments. In all,
the compilations contains thirty-five judgments. As post lunch
session Mr. Upadhyay could not finish his submissions; this Court
yesterday inquired from him and it was informed that he would
be taking another half an hour and the matter was kept today.
Today, Mr. Ghanshyam Upadhyay, learned advocate orally
submitted that he is desirous of placing some more judgments,
maybe four or five in number.
2. In the pre-lunch session, this Court was engaged in taking up
the Habeas Corpus matters wherein the corpora were present
and hence, in those matters, the proceedings were conducted in
chamber.
3. Today after lunch, Mr. Ghanshyam Upadhyay, learned
Advocate had commenced his submissions around 02:45 p.m.,
referring to the three compilations. Judgments were cited fromPage 54 of 56
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the compilations up to item no.11. During the course of the
arguments, this Court tried to find out the merits of the matter
and requested the learned Additional Public Prosecutor to assist.
Mr. Utkarsh Sharma learned Additional Public Prosecutor, has
briefly addressed the Court to which Mr. Ghanshyam Upadhyay,
learned Advocate, insisted that in view of the brief address by the
learned Additional Public Prosecutor, he would like to read the
judgments of the Apex Court in further detail by referring the
facts of each of the case. Mr. Ghanshyam Upadhyay, learned
Advocate, then started reading the facts of the judgment at item
no.11 when yet another twenty-five judgments were to be cited.
Although assured for half an hour, the matter had continued from
02:45 p.m until 5:00 p.m. When this Court requested Mr.
Upadhyay, learned Advocate that in view of the paucity of time, it
would not be possible for the Court to look into facts of
judgments in detail to which, Mr. Upadhyay, learned Advocate
insisted reading of the judgments including the facts. The
judgment already read at item no.11. When was asked to give
brief reference, the learned Advocate had not only closed the file
expressing frustration but, he slammed it and left it for the Court
to pass appropriate orders as he is desirous of challenging the
order before the Apex Court.
4. Mr Ghanshyam Upadhyay, learned Advocate was heard
uniterrupted post-lunch since 2:45 p.m. However, only in the
judgment which is cited at item no.11, the Court tried to inquire
that how that judgment would be relevant, Mr. Upadhyay,
learned advocate had expressed his unwarranted displeasure
which this Court does not approve.
5. Moreover, this Court had heard other matters in the pre-lunch
session. Not that the Court is averse to consider the judgments
but the insistence of the learned counsel was for keeping aside all
other matters and the captioned matter should be and ought to
be heard giving priority, it being a matter of illegal detention
according to him. No doubt, liberty of a person is of paramount
importance and this Court, is hearing it. The other matters were
corpora were made available were also equally important to be
heard. Owing to the paucity of time, this request was made to the
learned counsel appearing for the petitioner. Also, the learned
Additional Public Prosecutor was yet to make his submissions.
6. Offering one more opportunity, we are keeping the matter
tomorrow i.e. on 06.05.2026. If Mr. Ghanshyam Upadhyay,
learned Advocate wishes to make further submissions, he may do
so, or else the Court will hear the learned Additional Public
Prosecutor and pass appropriate order as desired by the learned
Advocate for the petitioner.”
26. Such demeanor exhibited by the learned Advocate
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during the course of the hearing is not in a right earnest and
is deprecated.
27. In view of the above discussion, the petition stands
allowed. Rule is made absolute to the aforesaid extent. No
order as to costs.
(SANGEETA K. VISHEN,J)
(D. M. VYAS, J)
SINDHU NAIR
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