NEW DELHI: The Delhi High Court has ruled that providing an arrestee with the grounds of arrest as part of a remand application filed before the Magistrate does not satisfy legal requirements.
Justice Anup Jairam Bhambhani emphasised that since the grounds for arrest must exist before the act of arrest, there must be a contemporaneous record in the police diary or another official document. He further stated that investigating officers have no valid reason to withhold this information from an arrestee in writing at the time of arrest.
The Court said that this communication must occur simultaneously with the issuance of the arrest memo or be included as part of it. “Serving grounds of arrest via a remand application does not meet legal standards, as such an application is only filed later when the arrestee is presented before the Magistrate,” it said. The Court also clarified that merely being present at a police station does not automatically amount to being under arrest.
The determination of whether a person is under arrest depends on the specific circumstances, including whether and when their liberty was restrained. The ruling came in response to a petition by an accused in a cheating case. His interim bail, initially made absolute by the Additional Chief Metropolitan Magistrate (ACMM), was later revoked by the sessions court. The accused was alleged to have facilitated the emigration of an Afghan national to Spain using fraudulently obtained Indian documents, including a passport, Aadhaar card, and PAN card, in exchange for payment.
Though not named in the FIR, he was arrested following police interrogation under a notice issued under Section 41A of the Code of Criminal Procedure (CrPC). After his arrest, the Magistrate rejected the police’s remand plea and granted interim bail, which was periodically extended before being made absolute. However, the prosecution successfully challenged this in the sessions court, leading to the bail’s cancellation.
On the issue of maintainability, the High Court ruled that orders denying police custody remand are not merely interlocutory and can be reviewed under the revisional jurisdiction of the Sessions Court.
Thus, the revision petition was deemed valid. Furthermore, the court criticised the police’s practice of issuing multiple printed copies of a Section 41A CrPC notice instead of following the prescribed legal procedure established in another case. “A carbon copy from an indexed, serialised booklet carries a degree of authenticity, which is why the procedure in the said case must be strictly followed,” the court said.
The Court noted the accused was never served with the grounds of arrest at any stage or in any form, rendering the arrest legally untenable.
Accordingly, the High Court overturned the order cancelling the accused’s bail and reinstated the ACMM’s order making his interim bail absolute. It reaffirmed the accused’s right to remain on bail as originally granted by the Magistrate.