Rahul Shankarrao Wadhave (U.T. No.46/25) vs State Of Maharashtra

Hiten S. Venegavkar, J

Rule. Rule made returnable forthwith. With the consent of both the parties, application is taken up for final hearing and disposal at the stge of admission itself.

Heard both the sides at considerable length.

The petitioner herein invokes inherent jurisdiction under Section 482 of the Code of Criminal Procedure ((hereinafter referred to as the 'Cr.P.C.’) to assail; (a) the legality of his arrest dated 03.08.2021 effected by Chhavni Police Station, Aurangabad in connection with FIR No.461 of 2021 for offences punishable under Sections 354, 323, 506 of the Indian Penal Code (hereinafter referred to as the 'IPC') along with Sections 9(M)(N), 10 and 12 of the Protection of Children from Sexual Offences Act (hereinafter referred to as the ‘POCSO’ Act); and (b) the legality of the initial and successive remand orders commencing from 04.08.2021 passed by the learned Special Court (POCSO), Aurangabad. The petition filed under Section 482 of the Cr.P.C. expressly showed the arrest of the petitioner and the remand orders passed by the jurisdictional Court from time to time. Though the framework of the argument appears narrow in form, it is wide in its implications.

The factual matrix of the subject matter of the FIR, as well as the process of investigation, including the manner of arrest and the production of the petitioner before the competent Court at the stage of remand under Section 167 of the Cr.P.C., are not in serious dispute. The petitioner was arrested on 03.08.2021 and produced before the learned Special Court on 04.08.2021, admittedly within 24 hours as required under Section 167 of the Cr.P.C. The learned Special Court refused to grant police custody and remanded the petitioner to judicial custody, initially till 17.08.2021, and has subsequently extended the same from time to time till date. The investigation, after completion, culminated in a final report under Section 173 of Cr.P.C., which came to be filed before the competent Court on 13.09.2021. The petitioner continued in custody and his attempt to seek bail has been rejected by the High Court. During the course of the hearing, we were informed that a Special Leave Petition preferred by the petitioner is still pending before the Hon’ble Supreme Court of India.

The learned Advocate appearing for the petitioner vehemently argued by placing reliance on the constitutional guarantee under Article 22(1) of the Constitution of India and the statutory mandate under Section 50 of the Cr.P.C., that the “grounds of arrest” were not furnished to the petitioner at the time of his arrest, nor were the said grounds communicated to him either orally or in writing. According to the learned Advocate for the petitioner, the remand orders passed thereafter by the competent Courts also stand vitiated for want of willful compliance of Article 22(1) of the Constitution and Section 50 of the Cr.P.C. It is further argued that the arrest memo annexed with the petition is in a computerized format and does not disclose any grounds for arrest. The arrest memo merely makes a written note that the friend of the petitioner has been intimated about his arrest.

Learned APP vehemently opposed the present petition by arguing that the mandatory requirement under Section 167 of Cr.P.C. has been complied with by producing the petitioner before the competent Court within 24 hours of his arrest. That legal mandate as it stood in the year 2021 pertaining to the arrest of an accused has been complied with by giving an intimation to the friend of the petitioner, and the same has been endorsed in the arrest memo. Thus, learned APP argued that there is absolutely no violation of Article 22(1) of the Constitution of India and/or all the statutory provisions under Section 50 of Cr.P.C. Accordingly, prayer for dismissal of the petition.

As noted aforesaid, the admitted fact is that the petitioner was arrested in the alleged offence on 03.08.2021, and therefore, our task is to test the rival submissions within the legal landscape as it stood in August 2021 and as it has evolved since then till date.

Before turning to the merits of the case, it is relevant to mention in the beginning that the custody from August 2021 onwards has been regulated by reasoned judicial remand orders. Legal jurisprudence mandates that once a competent Court authorizes custody by a valid order, the initial act of arrest is held to be legal, and the validity of such custody or detention is thereafter referable to the judicial orders of remand. The Hon’ble Apex Court in several decisions has held that a collateral attack of detention premised merely on alleged irregularities in arrest does not lie when the remand is by a Court of competent jurisdiction, unless a jurisdictional infirmity is shown in the order of remand itself. Reliance can be placed on the judgment in the case of The State of Maharashtra & Ors. vs. Tasneem Rizwan Siddiquee, (2018) 9 SCC 745, wherein the Hon’ble Apex Court has held as under:

“10. The question as to whether a writ of habeas courpus could be maintained in respect of a person who is in police custody pursuant to a remand order passed by the jurisdictional Magistrate in connection with the offence under investigation, this issue has been considered in Saurabh Kumar v. Jailor, Koneila Jail and Manubhai Ratilal Patel v. State of Gujarat. It is no more res integra. In the present case, admittedly, when the writ petition for issuance of a writ of habeas corpus was filed by the respondent on 18-3-2018/19-3-2018 and decided by the High Court on 21-3-2018¹ her husband Rizwan Alam Siddiquee was in police custody pursuant to an order passed by the Magistrate granting his police custody in connection with FIR No. 1-31 vide order dated 17-3-2018 and which police remand was to enure till 23-3-2018. Further, without challenging the stated order of the Magistrate, a writ petition was filed limited to the relief of habeas corpus. In that view of the matter, it was not a case of continued illegal detention but the incumbent was in judicial custody by virtue of an order passed by the jurisdictional Magistrate, which was in force, granting police remand during investigation of a criminal case. Resultantly, no writ of habeas corpus could be issued.

Reverting to the prayer for expunging the scathing observations made in the impugned judgment, in particular paras 4-6, reproduced earlier, it is submitted that the said observations were wholly unwarranted as the Deputy Commissioner of Police concerned who was present in Court, could not have given concession to release Rizwan Alam Siddiquee in the teeth of a judicial order passed by the Magistrate directing police remand until 23-3-2018. Moreover, it is evident that the High Court proceeded to make observations without giving any opportunity, whatsoever, to the police officials concerned to explain the factual position on affidavit. The writ petition was filed on 18-3-2018/19-3-2018 and was moved on 20-3-20182 when the Court called upon the advocate for the appellants to produce the record on the next day i.e. 21-3-2018. The impugned order came to be passed on 21-3-20181, notwithstanding the judicial order of remand operating till 23-3-2018. The High Court, in our opinion, should not have taken umbrage to the submission made on behalf of the Deputy Commissioner of Police that the respondent's husband could be released if so directed by the Court. As aforesaid, the DCP has had no other option but to make such a submission. For, he could not have voluntarily released the accused who was in police custody pursuant to a judicial order in force. The High Court ought not to have made scathing observations even against the investigating officer without giving him an opportunity to offer his explanation on affidavit.

Suffice it to observe that since no writ of habeas corpus could be issued b in the fact situation of the present case, the High Court should have been loath to enter upon the merits of the arrest in the absence of any challenge to the judicial order passed by the Magistrate granting police custody till 23-3-2018 and more particularly for reasons mentioned in that order of the Magistrate. In a somewhat similar situation, this Court in State v. N.M.T. Joy Immaculate deprecated passing of disparaging and strong remarks by the High Court against the investigating officer and about the investigation done by them. Accordingly, we have no hesitation in expunging the observations made in paras 4 to 6 of the impugned judgment against the police officials concerned the facts of the present case.”

Thus the Court has reiterated that the writ of habeas corpus could not be issued to release a person in judicial custody pursuant to a remand order. Detention cannot be said to be illegal merely because the arrest was questioned. We are conscious of the fact that the present petition is not a writ seeking writ of habeas corpus, however, the principle regarding the legal basis of custody is of mandates in exercise of inherent jurisdiction as well. We, in the present case, are not applying the principles of writ of habeas corpus but the presence of successive remand orders which are unchallenged till date except by way of present petition on the specific ground that has been raised in the petition. This definitely requires us to exercise caution to consider such a belated plea to invalidate both, the arrest of the petitioner and also the orders of the remand passed by the jurisdictional Court.

10 In the light of the above, we consider Article 22(1) of Constitution of India and Section 50 of Cr.P.C. Article 22(1) reads as follows:

“Article 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 for such arrest nor shall he be denied the right to consult, and to be defended by, a legal practitioner of his choice.”

Thus, Article 22(1) guaranties that a person arrested shall not be detained without being informed , as soon as may be, of the grounds of arrest.

Section 50 of Cr.P.C. reads as under:

“Section 50 - 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 full particulars of the offence for which he is arrested or other grounds for such arrest.

(2) Where a police officer arrests without warrant any person other than a person accused of a non-bailable offence, he shall inform the person arrested that he is entitled to be released on bail and that he may arrange for sureties on his behalf.”

Section 50 of Cr.P.C. reflects the protection granted by Article 22(1) of the Constitution of India in statutory form. The right is substantive and it is found necessary so that the arrestee after his arrest can seek legal advice to oppose the remand application and apply for bail. The question that has fallen for consideration before the Constitutional Courts in recent years is not whether the grounds must be communicated, they “MUST” be communicated, but how that communication is to be effected, and what legal consequences follow if the grounds are not communicated?

For considerable period in the past several years, in ordinary Cr.P.C. context, the communication of the grounds of arrest orally to the arrestee and submitted to the competent Magistrate during the first production of the arrestee under Section 167 of Cr.P.C. was held to be sufficient compliance with Article 22(1) of the Constitution of India and similarly all the statutory mandate under Section 50 of Cr.P.C. The subsequent insistence of supply of a written copy of the grounds of arrest was considered by the Division Bench at Principal seat in the case of Chhagan Chandrakant Bhujbal vs. Union of India & Ors., 2016 SCC OnLine Bom 9938, wherein the Division Bench of this Court in the said judgment while considering the issue of furnishing grounds of arrest in writing, held that oral communication provided to the arrestee and grounds of arrest, if found place in the investigation papers and has been produced before the jurisdictional Court at the time of first production of arrestee seeking remand is sufficient compliance. The said judgment was delivered on 14.12.2016 and was subsequently overruled by the Hon’ble Apex Court in the case of Vijay Madanlal Choudhary and others vs. Union of India and Others, 2022 SCC OnLine SC 929. However, the reason for making a reference to the judgment in Chhagan Bhujbal's case (supra) is to place it on record that the judicial pronouncement holding compliance of Article 22(1) of the Constitution of India and furnishing grounds of the arrest to the arrestee got interpreted in the said case and occupied field till it was overruled. Even the Hon’ble Apex Court, thereafter, in Pankaj Bansal Vs. Union of India and Others, (2024) 7 SCC 576, dealing with arrest under PMLA, directed that the grounds of arrest be furnished in writing to the arrestee. The Hon’ble Apex Court was very much conscious of the fact that the prevailing understanding of furnishing the grounds of arrest was different than what was being held by them in the said judgment and hence used the expression “henceforth” thereby signaling the applicability of the dictum in Pankaj Bansal (supra) to be prospective. In the case of Ram Kishor Arora v. Directorate of Enforcement, (2024) 7 SCC 599, the Hon’ble Supreme Court, while interpreting Pankaj Bansal (supra), held that the directions issued in that case would operate prospectively, and that non-furnishing of the grounds of arrest prior to the date of the judgment in Pankaj Bansal (supra) could not, by itself, render the arrest illegal on that count alone. Thus, what the law demanded before the Pankaj Bansal‘s judgment was a meaningful communication of grounds of arrest to the arrestee.

Though all the above referred judgments were delivered in respect of the Prevention of Money Laundering Act, outside the PMLA, the Hon’ble Supreme Court in Prabir Purkayastha vs. State (NCT of Delhi), (2024) 8 SCC 254, proceeded to set aside the arrest and remand on the facts for want of proper supply of grounds of arrest. Even in this judgment, the Hon’ble Supreme Court held that the directions in Pankaj Bansal (supra) and Ram Kishor Arora (supra) are prospective. The judgment of Prabir Purkayastha (supra) again considering Article 22(1) of Constitution of India, held that furnishing grounds of arrest in writing and the copy of which is to be delivered to the arrestee is mandatory. It proceeds on the principle that the arrestee must know the reason in real time and in physical form why he is arrested. By no stretch of imagination it can be said that, the Hon’ble Supreme Court in Prabir Purkayastha (supra) intended to unsettle the arrest retrospectively i.e. effected years earlier and judicially proposed under the then prevailing understanding.

The petitioner’s Advocate has placed reliance on the Hon’ble Supreme Court’s judgment in the case of Vihan Kumar Vs. State of Haryana and Another, (2025) 5 SCC 799, where the Hon’ble Supreme Court while emphasizing that grounds of arrest are to be mandatorily

informed to the arrestee and as per the mandate under Article 22(1) of the Constitution of India, held that mere intimation to relatives or making a bare entry in the case diary is inadequate and does not amount to meaningful communication to the arrestee. Perusal of the judgment shows that it was delivered on 07.02.2025 and facts involved including the arrest of the arrestee in that case post pronouncement of Prabir Purkayastha (supra). The said judgment does not address the issue of retrospective application or invalidation of earlier orders which have passed through the remands and charge-sheet stages.

We have also noted that in the case of Vicky Bharat Kalyani vs. State of Maharashtra and another, 2025 SCC OnLine Bom193, wherein it is observed as under:

“Based on the above discussion, in our opinion the proper course for us is to refer these important questions for consideration to a Larger Bench. The questions are formulated as follows:

(1) Whether the ratio of the decisions in Pankaj Bansal Vs. Union of India 2023 SCC OnLine SC 1244, Ram Kishor Arora Vs. Enforcement Directorate 2023 SCC OnLine 1682, Prabir Purkayastha Vs. State (NCT of Delhi) 2024 SCC OnLine 934, are applicable to Section 50 of the Code of Criminal Procedure, 1973 and involving the offences under the other statutes than Prevention of Money Laundering Act, 2002 & Unlawful Activities (Prevention) Act, 1967?

(2) Whether Section 50 of the Code of Criminal Procedure, 1973 mandates the furnishing of the grounds of arrest in writing to the accused?

(3) If it is held that the communication of grounds of arrest in writing is necessary under Section 50 of the Code of Criminal Procedure Code, 1973, then

[i] Whether it has to be furnished at the time of arrest or any time before consideration of the first remand application?

[ii] Whether the Court has discretion to consider such necessity depending on the gravity of the offence or circumstances in which the accused is arrested?

[iii]Whether, in the given cases, the Court can consider the prejudice caused to the accused for not furnishing in writing?

[iv] Before which forum the arrested person can raise his grievance for his release on this ground 7 Whether it can be Magistrate's Court granting remand. Sessions Court, Single Judge of this Court exercising jurisdiction in bail matters or before the Division Bench exercising powers under Article 226 of the Constitution of India?

[v] For implementation of this mandate, what should be the cut off date ? Whether it should be from the date of the decision in Pankaj Bansal Vs. Union of India 2023 SCC OnLine SC 1244 or from the date of decision is Prabir Purkayastha Vs. State (NCT of Delhi) 2024 SCC OnLine 934 or from the date of decision in Mahesh Pandurang Naik Vs. State of Maharashtra and another decided on 18.7.2024 in Criminal Writ Petition [Stamp] No. 13635/2024

(4) If it is held that oral communication under Section 50 of the Cr.P.C. is sufficient, then whether it can be communicated within 24 hours of the arrest or at the time of first Remand or it has to be at the time of arrest.

(5) If a person is released for non-compliance of Section 50 of the Code of Criminal Procedure, 1973, can he be arrested again after following due procedure after his release 7.

(6) Whether the notice under Section 41A of the Code of Criminal Procedure, 1973, is required to be given before attest in all cases and in particular in the cases where the offence is punishable upto seven years, when the arrest of an accused is necessary?

Apart from these questions formulated for consideration of a Larger Bench, we are of the opinion that some clear and definite guidelines are required to be issued to the Courts of Magistrates and to the investigating agencies to follow the procedure of giving a remand report sufficiently in advance to the arrested accused before his first remand application is considered by the appropriate Court

The Registry is directed to place this order before the Hon'ble The Chief Justice for consideration for placing it before a Larger Bench consisting of three or more Judges. The Registry shall take such steps at the earliest considering that the issue raised in these Petitions is in respect of alleged illegal detention of large number of arrested accused.”

The Division Bench in above judgment has referred the broader question,  “whether,  outside  the special  statutes  like  PMLA/UAPA, Section 50 of Cr.P.C. mandates furnishing of written grounds of arrest in all  cases  and  if  so,  what  would be  the  consequences  for  non-compliance.” Thus, it underscores that this precise issue is in active evolution, and therefore requires restraint in lying down a rigid retrospective rule, whereby unsettling the arrests of several arrestees that have happened in the past and likely to create anarchy.

Keeping this legal fulfillment in mind, we proceed to appreciate the facts of the present case. The arrest memo annexed to the present petition does not possess a detailed column, titled, "grounds of arrest" that by itself is not beneficial to the present petitioner seeking declaration of his arrest as illegal. What is relevant is whether the issuance of grounds of his arrest were communicated to the arrestee "as soon as may be" and whether the remanding Court at the first production within 24 hours was provided with the record of the case so as to scrutinize the justification for the petitioner's custody. The petitioner was produced on 04.08.2021 before the learned Special Court (POCSO). The said Court by a reasoned order refused to grant police custody and proceeded the petitioner to judicial custody, and thereafter, from time to time have continued to authorize the custody under section 167 of Cr.P.C. till the charge-sheet is filed and cognizance was taken and thereafter till date, under section 309 of Cr.P.C. The record placed before us by the learned Advocate for the petitioner does not reveal that at any stage either before the remanding Court and during successive extensions of remand or even in the bail applications filed right up to this Court till 2023, the petitioner has ever raised or challenged his arrest on the ground that it is illegal due to non-supply of grounds of arrest. We also asked the learned advocate for the petitioner whether even oral arguments were ever made to that effect or if the same had been raised before the Hon'ble Apex Court where the Special Leave Petition of the petitioner is still pending. The learned Advocate fairly submitted that the said issue has never been raised either before the Special Court, this Court or even before the Hon'ble Apex Court in the pending Special Leave Petition. The absence of non-pressing of the issue since August 2021 and when the said custody has been regularized by multiple judicial orders, this Court under section 482 of Cr.P.C. would not be in a position to declare that the entire proceedings right from the arrest of the petitioner and successive judicial orders of granting remand since August 2021 is void ab initio on the ground that the law on the subject has evolved and has been sharpened at later and more precisely in May 2024, when the judgment of Prabir Purkayastha (supra) was delivered by the Hon'ble Supreme Court of India.

The learned Advocate for the petitioner had also pressed the judgment of Arnesh Kumar vs. State of Bihar, (2014) 8 SCC 273, during his arguments, contending that in offences carrying imprisonment up to seven years, arrest should be made only after compliance with the notice under Section 41-A of the Cr.P.C. No doubt the judgment of Arnesh Kumar (supra) imposes discipline on the police officer so as to avoid ruddy arrest and requires both the police officer and also the reminding Courts to apply their minds to the factum of necessity of arrest. But the Arnesh Kumar (supra) is neither a blanket prohibition on arrest nor a judgment to announce judicially authored custody as illegal after several years. The true spirit of the judgment in Arnesh Kumar (supra) is to regulate the discretion of the police officer to arrest and also to provide guidance to the jurisdictional Courts while considering remand applications and bail applications. However, in the present case, there are reasoned remand orders, a charge-sheet, and rejection of bail right from special Court and this Court. The law as it stands today on the issue of supply of grounds of arrest does not mandate retrospective invalidation of custody of arrestee such as petitioner whose arrest was effected in August 2021.

Thus, the argument of the learned Advocate is that once Article 22(1) is breached and brought to the notice of the Constitutional Court even under Section 482 of Cr.P.C. referring to violation of Article 21 as well then the arrest is to be held as vitiated and custody of the petitioner cannot continue even for a minute. Breach of Articles 21 and 22 of the Constitution of India also makes remand orders of the jurisdictional Court bad in law. We are unable to accept the aforesaid arguments. Firstly, as noted earlier, the distinction between existence of the right and judicial refined procedural compliance cannot be held to be retrospective so as to unsettle long- concluded steps taken during the investigation that have passed through the judicial scrutiny. Secondly, section 482 of Cr.P.C. of High Court is remedial and not disruptive it is meant to secure ends of justice and prevent abuse. The declaration that every arrest prior to Prabir Purkayastha (supra) in which a written copy of grounds of arrest was not served at the time of arrest is per se void and remand orders passed thereafter are bad in law, would amount to holding contrary to the Supreme Court of India dictum in the case of Pankaj Bansal (supra) as perspective and its recognition in Prabir Purkayastha (supra) of that prospectivity. In our view the directions in these two judgments are clear signal to the high courts to avoid retrospective effect and overturn earlier orders solely for want of written copy at the time of arrest of the arrestee.

The sum and substance of the above discussion is that Article 22(1) guarantees liberty to every citizen of this country. The arrested person must be told promptly and meaningfully why his liberty is curtailed. The Court must insist upon this discipline especially during the first production of the arrestee before them by the Investigating Officer seeking remand. Similar duty lies upon the Advocate representing the accused to raise such issued at the first opportunity. Equally important, it is to be borne in mind that the criminal process must not be rendered hostage to afterthoughts which ignore the presence of valid judicial orders, authorized custody, and the steady prosecution of the accused at trial. The arrest in the present case was effected on 03.08.2021. The applicant was produced within 24 hours on 04.08.2021, judicial custody was granted and subsequently extended by the jurisdictional Court, charge-sheet in the offence came to be filed on 30.09.2021, bail applications right from the Special Court and this High Court on multiple occasions came to be rejected. At no point of time till filing of the present petition, the remand orders were ever challenged on the ground of violation of article 22(1) or section 50 of Cr.P.C. The subsequent constitutional insistence of furnishing a written copy of the grounds of arrest has been salutary held as prospective in the case of Pankaj Bansal (supra), Ram Kishore (supra), and Prabir Purkayastha (supra). This persuades us to avoid giving a rigid and retrospective effect to the arrest which has taken place several years prior to Prabir Purkayastha (supra).

We, therefore, decline to hold that the alleged non-furnishing of a written copy of the grounds of arrest in August 2021, by itself, vitiates the arrest or renders the remand orders illegal. We also consider it neither appropriate nor just to unsettle the custody based on remand orders which are reasoned and have proceeded further towards trial, particularly when the precise constitutional objection now urged in September 2025 had not been raised at the earliest opportunity, including before the remanding Court. The view expressed by us should not be meant for as a view diluting the constitutional mandate under Article 22(1). This view is restricted to the facts of present case. It is only to say that the remedy sought for invalidation of arrest and remand four years after the arrest does not itself warrants exercise of our inherent jurisdiction. The recent pronouncements have indeed strengthened the procedural framework governing the powers of arrest. They must be scrupulously followed by investigating agencies and scrupulously scrutinized by the remanding Courts. However, there is a juridical space between insisting present and future compliance and/or the retrospective collapse of past proceedings which were, at the time, decided within the then prevailing legal understanding. The space is one of judicial restraint, a way occupied in precedent, and we show adherence to it today. Hence, we proceed to pass the following order :

ORDER

(i) Rule is discharged.

(ii) The Criminal Writ Petition stands dismissed.

Fees of learned Advocate Mr. Kedar Warad, who is appointed to represent the cause of the petitioner is quantified at Rs.6000/-, to be paid by the High Court Legal Services Sub Committee, Aurangabad.