Grounds of Arrest vs. Reasons for Arrest: The Curious Case of Prabir Purkayastha

Who will be compensating those individuals who fall victim to such “arbitrary” and “illegal” arrests?

On 3 October, the Delhi Police's Special Cell arrested NewsClick Founder Prabir Purkayastha.

(Photo: The Quint)

Last year in October, the founder and editor-in-chief of NewsClick, Prabir Purkayastha was arrested and detained by the Delhi Police pertaining to a case filed and registered under the Unlawful Activities (Prevention) Act (UAPA). The charges against him revolved around allegations that he received funding from abroad to spread pro-China propaganda. During the raids and the interrogations, the police also seized laptops and mobile phones belonging to several journalists, who were questioned about their involvement with NewsClick as well as details about their calls to people living in foreign countries.  

In a significant development, the Supreme Court of India directed the release of Purkayastha on 15 May. While terming the arrest “illegal”, the bench of Justices BR Gavai and Sandeep Mehta said, "It may be reiterated at the cost of repetition that there is a significant difference in the phrase ‘reasons for arrest’ and ‘grounds of arrest’." 

Hence, on 15 May, Prabir Purkayastha was released from prison after spending seven months in detention. If the detention was illegal and his arrest was not in pursuance of the law of the land, then who will be compensating those who fall victim to such “arbitrary” and “illegal” arrests?

In Purkayastha's case, the Supreme Court rightly noted that a copy of the remand application was not provided to him or his counsel before passing the remand order on 4 October last year, i.e., the grounds of the arrest were not supplied to him in writing.  

In para 22 of the judgment, the Court significantly remarks that the right to be informed about the grounds of arrest flows from Article 22(1) of the Constitution of India and any infringement of this fundamental right would vitiate the process of arrest and remand.

As reported by Livelaw, when the judgment was being reserved in Prabir’s case (30.04.2024), the Supreme Court also questioned the Delhi Police’s action which was in “hot haste” in producing Purkayastha before the magistrate at 6 am, that too without informing his lawyer.

Grounds of Arrest vs. Reasons for Arrest

The Supreme Court has clarified multiple times, most recently in Pankaj Bansal v. Union of India, that the accused in cases pertaining to offences under the PMLA (Prevention of Money Laundering Act) and statutes like the UAPA, should be informed about the grounds of their arrest in writing.

While the judgment in Purkayastha's case is significant for many reasons, one of them is the difference tabled by the court between the “grounds of arrest and the reasons for arrest”. In this case, Prabir Purkayastha was not informed about the grounds of his arrest, and under Indian criminal law, if a person is being detained or arrested by the police, then it is the duty of the officer concerned to inform the person about the same.

Article 22 of the Indian Constitution talks about protection against arrest and detention. It states, “No person who is arrested shall be detained in custody without being informed, as soon as may be, of the grounds for such arrest nor shall he be denied the right to consult, and to be defended by, a legal practitioner of his choice.” 

Further, Article 22 (5) states that 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.

In context to Article 22, clause (5), the Additional Solicitor General argued in Purkayastha's case that the language of Article 22(5) reflects that even in a case of preventive detention, the constitutional scheme does not require that the grounds on which the order of detention has been passed should be communicated to the detenu in writing.

To this, the court said that “Ex facie ( ), we are not impressed with the said submission” and a reference was made to the judgment of the Supreme Court in Hariksian v. State of Maharashtra and Others, where it held that the communication of the grounds of detention to the detenu in writing and in a language which he understands is imperative and essential to provide an opportunity to detenu of making an effective representation against the detention, and in case such communication is absent, the order of detention would stand vitiated as the guarantee under Article 22(5) of the Constitution would be violated. 

Even in the case of Lallubhai Jogibhai Patel v. Union of India and Ors, the Supreme Court held that the grounds of detention must be communicated to the detenu in writing in a language which he understands and if the grounds are only verbal in nature then the constitutional mandate of Article 22(5) will be infringed upon. 

“20. …. “Communicate” is a strong word. It means that sufficient knowledge of the basic facts constituting the “grounds” should be imparted effectively and fully to the detenu in writing in a language which he understands. The whole purpose of communicating the “ground” to the detenu is to enable him to make a purposeful and effective representation. If the “grounds” are only verbally explained to the detenu and nothing in writing is left with him, in a language which he understands, then that purpose is not served, and the constitutional mandate in Article 22(5) is infringed.”  

In Purkayastha's case, the Addition Solicitor General opposed his release on the grounds that the ratio of the Pankaj Bansal case might not be applicable in this case as there is an inherent difference between the provisions contained in Section 19 of the PMLA and Section 43A and 43B of the UAPA.

In this regard, the Court rightly held that there is no significant difference in the language employed in Section 19(1) of the PMLA and Section 43B(1) of the UAPA, which reflects that the interpretation of the phrase ‘inform him of the grounds for such arrest’ made by the Supreme Court in the case of Pankaj Bansal(supra) should be applied to an accused arrested under the provisions of the UAPA.  

The court said, “Resultantly, there is no doubt in the mind of the Court that any person arrested for allegation of commission of offences under the provisions of UAPA or for that matter any other offence(s) has a fundamental and a statutory right to be informed about the grounds of arrest in writing and a copy of such written grounds of arrest have to be furnished to the arrested person as a matter of course and without exception at the earliest.” 

Pankaj Bansal v. Union of India: The Grundnorm

The Supreme Court's judgment in Pankaj Bansal v. Union of India came at a time when there were widespread concerns regarding the sweeping powers of the Enforcement Directorate (ED) in arresting various journalists, politicians, and businessmen across the country.

The bench of Justices AS Bopanna and PV Sanjay Kumar held in the Pankaj Bansal Case that the ED has to compulsorily furnish the grounds of arrest to the accused in writing and that the agency cannot arrest people by simply citing non-cooperation to the summons.  

To understand the ratio of the judgment, I have classified it into four major points: 

• The investigation agency (ED in this case) should inform the grounds of arrest to the accused in writing

• Oral or verbal information would not be sufficient and cannot be termed as communication to the accused about his arrest

• The investigation Agency (ED) cannot arrest/detain a person by just citing mere non-cooperation/compliance to the summons served upon to him

• If the arrest is invalid, then the subsequent remand order will also fail

“Para 32. In this regard, we may note that Article 22(1) of the Constitution provides, inter alia, that no person who is arrested shall be detained in custody without being informed, as soon as may be, of the grounds for such arrest. This being the fundamental right guaranteed to the arrested person, the mode of conveying information of the grounds of arrest must necessarily be meaningful so as to serve the intended purpose.” 

In Purkayastha's case too, Senior Advocate Kapil Sibal referred to the observations made in the Pankaj Bansal(supra) judgment and urged that since the grounds of arrest were not furnished to the appellant at the time of his arrest and before remanding him to police custody, the continued custody of the appellant is rendered grossly illegal and a nullity in the eyes of the law because the same is hit by the mandate of Article 22(1) of the Constitution of India. 

The Ghost of the RK Arora Judgment

In December last year, in Ram Kishor Arora v. Union of India, the Supreme Court ruled that the Enforcement Directorate (ED) is obligated to inform the accused (detenu) of the grounds orally at the time of arrest, with written reasons to be provided within 24 hours.

Normally, the judgments of the courts are presumed to be applied retrospectively but in the RK Arora judgment, the court said that the non-furnishing of the grounds of arrest till the date of pronouncement cannot be held illegal. 

“Hence, non-furnishing of grounds of arrest in writing till the date of pronouncement of judgment in Pankaj Bansal case could neither be held to be illegal nor the action of the concerned officer in not furnishing the same in writing could be faulted with. As such, the action of informing the person arrested about the grounds of his arrest is a sufficient compliance of Section 19 of PMLA as also Article 22(1) of the Constitution of India, as held in Vijay Madanlal (supra).” 

Therefore, in the RK Arora case, a bench comprising of Justices Bela M Trivedi and Satish Chandra Sharma made certain observations that dilute the dictum of the Pankaj Bansal judgment. As Manu Sebastian has rightly argued, the judgment cast a vital check on arbitrary arrests. However, within a mere two months, this silver lining was overshadowed, veiling the initial progress that was made.

The Road Ahead and a Hammer on the 'Oral Detention' Jurisprudence

Purkayastha's release after seven months in prison without providing him with the grounds of his arrest in writing is not only an abuse of law, but also a flaw in the procedure which has now been corrected by the Supreme Court. The Supreme Court has not laid down any new law, but has brought forward an interpretation which was already provided by the law not fairly visible to the “authorities” concerned.

Another aspect to this incident was “illegal and arbitrary detention” – which is still a concern. We don’t have many precedents where individuals are compensated for wrongful or illegal detentions by the investigation authorities.

In Babloo Chauhan vs. State Government of NCT of Delhi, a division bench of the Delhi High Court, led by Justice Muralidhar, urged the government to work on a legislative framework to tackle such cases where individuals are wrongfully detained.  

“There is an urgent need, therefore, for a legal (preferably legislative) framework for providing relief and rehabilitation to victims of wrongful prosecution and incarceration. Whether this should be an omnibus legislation or scheme that caters to both the needs of the victim of the crime, as well those wrongfully incarcerated, including the family and dependants of the prisoner, or these have to be dealt with in separate legislations or schemes is a matter for discussion, deliberation and consultation with a cross-section of interest groups. Specific to the question of compensating those wrongfully incarcerated, the questions as regards the situations and conditions upon which such relief would be available, in what form and at what stage are also matters requiring deliberation. This is a task best left in the first instance to the body tasked with advising the government on the legislative measures needed to fill the obvious gap.” 

In this regard, even the Supreme Court, as early as in 1983, while ordering compensation for illegal detention, observed in Rudul Shah vs State of Bihar: "one of the telling ways in which the violation of that right can reasonably be prevented and due compliance with the mandate of Article 21 secured, is to mulct its violators in the payment of monetary compensation."

Hence, when we talk about “illegal detention” and “illegal arrests”, then there’s silence in the room. Do we really think that monetary compensation would be enough for someone’s freedom or liberty? Let us hope that such illegal and arbitrary arrests take a back seat and the rule of law becomes the driving force across the country. 

(Areeb Uddin Ahmed is an advocate practicing at the Allahabad High Court. He writes on various legal developments. This is an opinion piece and the views expressed above are the author’s own. The Quint neither endorses nor is responsible for them.)