Mr.Raghenth Basant, Sr.Adv, SCI.Topic:Grounds of Arrest in Writing-A New Era of Arrest Jurisprudence

Added: 2026-05-24

[00:00:00]Friends, we are starting now. Today is the 295th Friday group meeting. Uh topic is grounds of arrest in writing a new era of arrest jurus prudence. Uh today's speaker is our 10 promising dynamic senior advocate Ragend Basan. Uh very uh good friend is doing very well in the Supreme Court. Kind thank you very much sir. Kind enough to accept this thing immediately. We are grateful to you and now I request Monica.

[00:00:33]Monica please greet CV.

[00:00:35]>> Thank you so much sir. It's my pleasure to introduce Mr. Raind Basan sir. Sir sir has completed his uh studies from the national law school of India University Bangalore and enrolled with the bar council of Kerala as an advocate in July 2001. Sir sir has began his career as associate at the chamber of GA Modi advocate and solicitor Mumbai now known as AZB and partners and later later practiced in the trial court of Kalikut Kerala. He also worked with Mr. Gopal Subramanyan senior advocate supreme court of India from 2004 to 2008. Sir has served as councel for the state of Kerala before the cavaryi water supply tribunal and later entered independent practice in January 2009. He was also the standing council for the University of Caligat in the Supreme Court of India from 2011 to 2014.

[00:01:35]Sir was designated as a senior advocate by the Supreme Court of India on 19th January 2024. He regularly appeared before the Supreme Court of India. the NCAT and various high courts and for forums in Delhi and other places.

[00:01:53]He has been appointed as amicus by the honorable high honorable Supreme Court in several matters including the recent judgment in Kumud Lal versus Suresh Chandra Roy concerning compensation issue in medical negligence cases. Please join me in welcoming Mr. into the sensor.

[00:02:14]>> Uh thank you Monica. So nicely you explained I mean about today's speaker again please initiate of this thing. Yes please.

[00:02:29]Thank you everyone especially thank you Shishu sir for giving me this opportunity this Friday group like I tell everyone you know it is a single you know it is thanks to shu sir that this is going on so efficiently all of us the first time I'm speaking here but I've been following very closely this Friday group like all of us who practice here in supreme court know Friday evenings are the time when all of us take off from work and relax so to do this for consistently now this is a 295th to do this for 295 Fridays is no mean feat. So all of us should be grateful to Shishu for taking the initiative and uh doing this.

[00:03:09]Now uh before I like uh like you were told the topic is grounds of arrest and writing a new era in arrest juristprudence. Before I uh get to the specifics of the topic, there are so many young lawyers here. I must tell you many of you must be appearing regularly in criminal matters. A dilemma is faced by many lawyers who do criminal work especially younger lawyers these days as to how is it that you can defend somebody who's committed a heinous crime so-called heinous crime. Now here I keep sometimes surprisingly sometimes we hear that questions from judges also these days but you know my point is simply this to all of you when you appear in a criminal matter as a defense council defending an accused you are not justifying any of the act of the accused you are only safeguarding the constitutionally provided right of free trial to an accused now there you appear you don't you know as a lawyer I I firmly believe as a lawyer we defend the accused Our personal ideologies are at no place just like a doctor treats any patient that comes before the doctor. We as that's that's my belief. There could be two views about it but my belief firmly is any accused that come to you, you have a right, you have a duty obligation to defend under the advocates act. Now I cannot put it better. There is a and I was looking for this. Now there is a quote from uh justice KK Hall in a judgment in the by the US court of appeals. So that is in the context of defending the fourth amendment of US constitution which is the right against illegal siege search seizure etc. In that context justice hall says this I I can I can just read it. One who would defend the fourth amendment must share his foxhole with scoundrels of every sort but to abandon the post because of of the poor company is to sell freedom cheaply. Now this is exact I can't put it better than this. This is what I my advice to all young lawyers is just do your work while defending an accuse in a criminal case what is constitutionally provided. That is all you're doing. You don't have to feel uh uh guilty about it. You are not defending any anybody's heinous acts. You are only providing a right to free trial. Now with this introductory remark now before I get into the grounds of arrest, let's start with what is it that ar no the part what is it that an arrest entails? Like all of us know for a person for a human being arrest by a police is one of the most stigmatic event that can take place in your life psychologically emotionally financially your standing in the family everywhere in any whichever way you look at it being arrested by the police is one of the worst things that can happen to a human being. Now in that context which is what we are going to uh delve deeper later what is the power of arrest versus the necessity of arrest. Now police may have the power of arrest but is there a necessity of arrest is something which we many times the police forgets. Now I keep saying in many jurisdictions arrest is the culmination of the investigation.

[00:06:25]after a crime is registered the police uh in collects material and if they find that somebody has to be arrested the investigation uh during the investigation after collecting of the material the culmination of that factf finding is the arrest whereas here in India many times arrest is the commencement of the investigation not the culmination an affair is registered the police say okay he's the accused go arrest then we'll start looking for material now according to me that that is where we need to look into the power of arrest versus the necessity of arrest. Now as you know Supreme Court has right from Joinder Singh judgment has explained this concept of power to arrest is not equal to the necessity of arrest. Now under the CRPC you may the police may have the power to arrest but the police has to go to the next step as to whether yes I have this power but do I need to arrest? Is there a necessity of arrest? Now that is why this grounds of arrest etc comes in that context. Now if you just take CRPC now as all of you know there is section 41 CRPC where the police officer that is section 35 of the BNSS where the grounds where the re where for example 41B deals with situations where a cognizable offense where of offense of up to seven years.

[00:07:47]There is a b c d reasons where the police can arrest. 41ba says any offense where 7 years or more up to death then how you can arrest. Now this power is there under 41 to arrest.

[00:08:01]Now whether there is a necessity whether it is mandatory suppose an f registered against an accused under 302 IPC. Is it mandatory for the police to arrest? Now there just see 157 crpc that is 176 of the NSS. there what they say is now that is procedure of investigation. I won't read the full thing but after the procedure of investigation they say to investigate and if necessary to take measures for the discovery and arrest of the offender. So even 157 CRPC says if necessary you take measures for arrest of the offender. So what I'm trying to say is the police has a wide discretion to whether to arrest a person or not. It is not a mandatory function of the police that a crime is registered, a accused has to be arrested. Now when you say discretion, how do you exercise a discretion? Now discretion is you know when you say somebody has a discretion that is not an unfettered discretion. It has to be based on some principles. It is not like a police officer A thinks that okay I have the power to discretion to arrest so I'll arrest whereas police officer B think oh I have a discretion but I will not arrest. It's not it doesn't work on the individual whims and fancies which is why now there's in this context there is a excellent quotation by uh justice Benjamin Cardardoso from his book the nature of judicial process you know in that this is this discretion he says how a judges should exercise discretion but I think it is equally applicable to a police officer who is uh who has a discretion to arrest this is what justice Benjamin Cardoso says he is to exercise a discret creation, informed by tradition, methodized by analogy, disciplined by system and subordinated to the primordial necessity of order in the social life. Now I think like a police this this uh a police officer exercising a discretion has to keep this in mind and has to exercise a discretion keeping this principle in mind. Now let's come to this grounds of arrest.

[00:10:06]Now in writing I'll come in a minute.

[00:10:09]Now where does this obligation to uh for the accused where is the right of the accused to know about the rights of arrest arise from? Let's start straight away with article 221 of the constitution of India. Now what does article 221 say?

[00:10:28]Article 22:1 says that no person who 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. So what 221 says is uh no person who's arrested shall be detained in custody without being informed of the grounds of such arrest.

[00:10:57]This is what article 221 says. Now let's come to section 50 CRPC which is section 47 of the BNSS.

[00:11:07]This principle under article 221 is given effect to in section 50 of the CRPC which says every police officer other person arresting any person without warrant shall forthwidth communicate to him full particulars of the offense for which he's arrested or other grounds for such arrest. So section 50 says he has to police officer has to forthw with communicate the grounds of arrest. Section 50 capital a CRPC in imposes an obligation of the police to inform a near relative as to where whether the person has been arrested where he is kept etc. Now section 50 CRPC and article 221 constitution says 221 says informed of the ground of arrest. 50 CRPC says forth with communicate the grounds of arrest. Now the question is the question that arose was what do you mean by informing of the grounds of arrest or communicating forth with of the grounds of arrest. Now in this context the issue that arises is what is furnishing grounds of arrest under article 221.

[00:12:15]Now the question various issues arose because various issues arose as to whether many times the police says in arrest memo I had mentioned grounds of arrest. The EQ says I was not uh told about the grounds of arrest. He only says grounds of arrest already informed to the accused.

[00:12:33]The EQ says no no I've never never informed. So this this conflict arose and kept going as to whether what is informed under article 221.

[00:12:43]After a long time the judgment of the Supreme Court which is the first time the judgment dated 3rd October 2023 in pankage bansel pankage bansel judgment of the Supreme Court uh and the citation I can just uh give you the citation on pankage bansel 20247 576 the honorable Supreme Court held in Bansil uh pankage bansel that that was a case under section 19 of the PMLA section 19 of the PMLA uses the word in shall I'll just tell that exact words used in section 19 of the PM uh section 19 of the PMLA it says is and inform him of the grounds of arrest.

[00:13:46]Again the same wording in section 50.

[00:13:50]Now what is that inform information of arrest got interpreted under section 19 in pankage bansel. In pankage bansel, the honorable Supreme Court categorically held that inform used in section 19 of the PMA of the PMLA means a grounds of arrest has to be given in writing. This is the first time in a context of article 221 like I said earlier 225 preventive detention the courts had already held that it has to be given in writing. But in the context of an offense where the FI registered you arrest somebody it has to be uh in writing for the first time the Supreme Court held in pankage bans. Now in pankage bansel the issue was issue was simple. The arrest the accused said I was not informed on the grounds of arrest. It was said that oh no I was thoroughly informed etc. Then in pankage bans the court interpreted section 191 and in pankage argument was raised by the enforcement directorate saying that in vijay madanl chri finding was given that in a case does not have to be tarnished to the accused that does not viciate the arrest but in pankage bansel they said even in vijay madanal chi they said article 221 rights have to be given the grounds of arrest has to be whether it's in the form of you Whether you call it in writing in a warrant how whichever way it is it has to be informed in writing. So the the pankage bans said Vijay Madanal Chowi did not deal with the issue as to whether an arrest whether grounds of arrest has to be given in writing or not. Vijay Madanal Chowri only said the accused has to be informed of the grounds of arrest. Pankage Bansil expanded it for the first time and held that it has to be given in writing. If you don't give it in writing, it goes to the extent of saying that the arrest is visiated and the accused has to be released on bail. Of course, nothing stops after that from furnishing grounds of arrest and arresting him again if the investigating against he needs it. But this is a ground which is available to the accused by which he can be immediately released if the grounds of arrest is not given in writing. This is this was the uh judgment in pankage bansel. Now what happened after pankage bansel is because pankage bansel also uses the word that also I I I'll delve it up on detail in a bit but pankage bansel said henceforth all uh the grounds of arrest shall be furnished to the accused in writing henceforth.

[00:16:32]Now pankage bans judgment was dated 3rd October 2023.

[00:16:37]Pank the pankut actual pankage bansel was arrested on 14th June 2023 before that pankage bans says it has been given henceforth I I'll leave it at that I I'll come I'll in a bit I'll tell you why I'm saying this now after pankage bansel there's a supreme court another judgment came of Ram kishor Aurora again in the context of uh arrest of uh uh under PMLA now in Ram Kishor Aurora the honorable supreme court held decided notices pankage bansel and says that pankage bansel uses the word henceforth.

[00:17:15]Therefore it has to be prospective.

[00:17:17]Therefore any arrest made after pankage bansil only then there is a requirement of grounds of arrest not before. Now I have my own uh doubts on that because like I said in pankage bunil it even though they say hencefor that judgment has been applied retrospectively because the pankage bunil is arrested on 14th June before the judgment and as all of you know any judgment un unless specified otherwise is deemed to be law from the inception unless for specific reasons it has been said made prospective. Now in this pankage manel there is no indication other than the word henceforth. Now there is no discussion because it's a constitutional principle which has been giving effect giving effect to by saying grounds of reasons grounds of arrest has to be given in writing. Now a constitutional principle concerning liberty whether you can say it will apply only from today but yesterday's arrest it will not apply. I have my own reservations on that but be that it is made that is what the judgment says saying that henceforth it can only be from the date of pankage bansel. Now we should also uh note pankage bansel is in the context of the PMLA act. Then comes a judgment of Prabid Pukka that is subsequent that is if anybody want citation Ram Kisha's 20247 SEC 599 and subsequent judgment is Prabaista that is 20248 SEC 254.

[00:18:48]Now this is interesting now we saw Pankage Bansil in the grounds of writing in the context of PMLA section 19. Ram Kishor Aurora says Pankage Bansil is prospected. Then comes Prabhir Pulkista.

[00:19:04]Now Prairista dealt with the UAPA case. Now under UAPA section 43 capital B is similar to section 19. What 43 capital B says is this. Any officer arresting a person under 43A shall as soon as it may be inform him of the grounds of arrest.

[00:19:22]Now again like CRPC section 50 like 40 section 19 in Prairie Purka the question arose whether an arrest under 43 capital B of UAPA grounds of arrest has to be given in writing and pankage bansel is applicable. An argument was raised by ED. Argument was raised by ED stating that pankage bansel is applicable only in the context of uh uh section 19 PMLA. for UAPA section 43B pankage bunel cannot be made applicable because the wordings of 43B and 19 are slight difference now frankly there is no difference it's it's it's identical the honorable supreme court rejected that contention and held that even in the case of UAPA grounds of arrest has to be informed it's mandatory there is no room for doubt has to be given in writing giving effect to the principles of article 221 the constitution of India and extending the pankage bansel principles to UAP.

[00:20:27]Now this judgment in in in uh Prabhir there is a even though it is in the context of UAPA there is a categoric finding in Prabhir which says grounds of arrest has to be given in writing in UAPA and all other offenses.

[00:20:48]So according to me prairal expanded the principle of pulkat pansel to every single offense arrest under every single offense penal offense.

[00:20:59]Now why is this this why I said earlier the discretion now we say natural justice natural justice in every small thing. Now arrest like I said earlier is the most stigmatic thing that can happen to an accuse to a human being. Now the ca like in any offense now I'm not saying whether whether the material etc going and arresting immediately has far grave consequences. So this grounds of writing principle according to me is an extension of the principles of natural justice. Telling the police officer you police before you arresting somebody you have a mandatory requirement to reduce it in writing that itself reduces arbitrus to a large extent. All of us know if any if you know why why is it why is it that every judgment courts pass whether right or wrong there is a reasoned order there is a reason why there is a reasoned order supreme court can while the high court passes an order can examine the reasons and see whether right or wrong now why is it that the grounds of arrest has been is not an empty formality if the grounds of arrest if as an accused I get the grounds of arrest in writing I have a right to challenge my arrest I have a right to if the grounds are arbitrary. If the grounds do not make sense, if the grounds are not legally sustainable, I have a right to challenge that arrest. I have a right to ask for relief based on those grounds. Before this, the requirement was I'll inform. So imagine a plight of an accused, he is getting arrested and police is coming to his house taking him and the police is saying, "Ah, by the way, I'm arresting you for ABCDE reasons." He's supposed to remember that then at that panicstricken state and then tell his lawyer, oh these are the grounds I've been informed to me. So this grounds of arrest in writing is Supreme Court's way of laudry objective of protecting liberty by saying that if you are arresting somebody record reasons so that that can be tested that can be judicially reviewed. So that is why this requirement was introduced. Now in this like I said I come back to my point in Prabhir they say UAPA and all other offenses. So according to me Prabhir was decided on 15524.

[00:23:15]According to me from 15524 at least the police, the ED, the any any investigating agency in India knew that the law laid down by this country the Supreme Court is that grounds of arrest has to be provided in writing.

[00:23:32]Now uh after that there was a judgment of I'm just going chronologically so that uh the development of law can be easily understood. Then came the judgment of Vhan Kumar 2025 5 SEC 799 decided on February 7, 2025.

[00:23:49]Now this is slightly tricky. Vihan Kumar was not a case under either PMLA or under UAPA. Like I said, Prabhir is UAPA, Pankage Bansil is PMLA. Vihan Kumar was a simple IPC offense. Uh F under IPC.

[00:24:05]In Vihan Kumar the Supreme Court relies on Pankage Bansil relies on Prabid. But while saying that Supreme Court says these are suggestions it is better that you always give these grounds of uh arrest in writing there could be practical difficulties in doing that. So but however it is better to do it. So what was the mandatory requirement under uh prab and pankage bansel when it came to I I even I wouldn't even call it optional it gave it's a slightly uh tricky where is that exact line so that we can par 18 right par 18 it says it says however under article 2221 there is no requirement of communicating grounds of arrest in writing ing all if the grounds of arrest are not communicated to the arresty as soon as maybe he will not be able effectively uh this thing but thereafter it says it is better where is it >> par 20 >> par 20 par 20 yeah that's what I'm looking for uh we are aware therefore there is no harm if the grounds of arrest are communicated in writing now pankage bansil and prairie did not say no harm they said you have to but in in Vihan IPC offense they according to me I don't it can be read anyway but according to me there is a slight dilution from saying mandatory it's saying there's no harm so that but this is in the context of an IPC offense now comes the next judgment now after vihanar there is a judgment called kasi opendradi state of Andhra Pradesh 2025 sec online supreme court 1228 now in kasi is interesting Kasi ready again is an IPC offense. In Kasi Ready the grounds of arrest were given in writing to the accused and to the accused relative.

[00:26:08]Now so but the the argument in Bhan Kumar the argu the what the court held was while giving grounds of arrest it has to be cannot be an eyewash. It cannot be like suppose in any like without any application of mind all of us can write grounds of arrest saying that he will tamper with evidence he will abscond you know standard grounds.

[00:26:29]So Vihan Kumar in all these judgments prabil says grounds of arrest cannot be an eyewash. It has to be meaningful. It has to be personal to the accused. There has to be specific grounds the accused.

[00:26:41]So the others the the distinction used in parah 48 of prair is there is a difference between reason for arrest and grounds for arrest. Reason for arrest everybody these are reasons know he'll he'll flee he'll you know he will tamper with evidence that is that for every you know you don't need application of mind every accuse you can police can write that as a ground but grounds of arrest is based on the fact so this case what do they think and specific to the accused that is what vihan said so kasi readyi actually interpreted vihan and the issue of whether it had to be given in writing or no did not arise because in that case it was given in writing But in spite of that in par 36 of uh uh kasi redee there there is an indication that you can orally inform the grounds of arrest but I don't think that is a ratio of the case because that issue did not arise because like I said in that case uh grounds were given in writing now it is more it gets more interesting now now after this the juna supreme court came in that karnataka actor bale s dashan state of karnataka versus shri dash uh 2025 SEC online supreme court 1702 in this is uh we'll have to figure out how to uh read this this judgment is after pankage bansil after prabir after vihan after prab now like I said in prabir it said even IPC offenses it said UAPA and other offenses now this judgment is under three uh Sri Dashan is a murder case 30 302 in in uh Sri Darshan the this honorable court relied on kasi and bihan and hell that even if grounds of right arrest are not given in writing then you even then that is not enough you have to apply the prejudice test you have to see as to what is the prejudice that is caused to the accused now that para but according to me while section ction 50 CRPC is mandatory. The consistent judicial approach has been to adopt a prejudiceoriented test when examining alleged procedural lapses. Now please see this. The mere absence of written grounds does not factor render the arrest illegal unless it results in demonstrable prejudice or denial of fair opportunity to defend. Now according to me till then the the prabir had expanded it to such a large extent. Sorry pankage bans had expanded to such a large extent saying give it in writing otherwise arrest viciated for PMLA.

[00:29:23]Prair said UAPA give it in writing mandatory otherwise arrest viciated you have to release him immediately. So there is no those judgments do not say that if written grounds of arrest are not there then you adopt a second test whether non-furnishing of the written grounds result in prejudice etc. That test is not there. But like I said, Vihan says there is no harm in giving.

[00:29:49]It is better to give. Then using that and Kasi also relies on that observation of Vhan. Using these two observations the in fact the Sri Dashan does not take into account Vhan or Prab. It sorry Pankage Bansil or Prab. It straight away relies on vihan and says that the fact that you do not give grounds of arrest in writing by itself will not visit the arrest. You have to adopt a test whether prejudice is caused to the accused with most respect I don't think it flows from that but fortunately subsequently the latest one of the latest judgments there is Mihir Rajes Sha versus the state of Maharashtra 2026 1 sec 500 this was decided on 6th November 2025 now Mihir is a case dealing with out and out IPC like I said in till till mir we had to rely on that stray observation in prabir saying that UAPA and other offenses to rely to apply to IPC but me which is why we the how the courts interpret after that is for PMLA okay Pankage Bansil is there go give grounds in writing for UAPA Pir is therefore no problem give grounds in writing but for IPC there is Vhan Kumar Kasi Reddi and Sri Darshan may no harm so prejudice test but now Mir fortunately has expanded the principle of uh giving of pankage bansil and uh prabir to IPC offenses. What Mihir says is category.

[00:31:26]Mihir says the requirement of grounds of arrest in writing flows from article 221. Therefore, it is not limited to UAPA or uh PMLA. It applies to any arrest which happens in this country. So they say IPC or any other step because otherwise each statute you can't have a separate judgment. So the principle is the same. So fortunately Mahir Rajesha says after examining all all the law saying that whether it is IPC or whether it is offense under any of these special statutes that come you have to give uh grounds of arrest in writing. But again the excitement doesn't stop there.

[00:32:08]This Mahir Rajes while the operative portion says same logic that is same word that we used in pankage bansel henceforth you shall give the grounds of arrest now pankage bans already said henceforth I discussed that I flagged that issue of Ram Krishna Aurora which said prospective Mi also uses the word henceforth now Mi is November 2025 I'm now after Mi various high courts this issue of grounds of arrest in writing came Now, high courts of Allahabad where is that?

[00:32:45]Yes. High courts of Bombay, Delhi and Allahabad took a view that Mihir uses the word henceforth.

[00:32:56]Therefore the judgment of Maher can be made applicable only to those arrests made after the judgment of Mahir which is November 6th 2025.

[00:33:08]So what the many high courts held after Mahir also with the benefit of grounds of writing were not given to accused who arrested before 6th November 2025. Now I come back to the Ram Krishna Aurora dichotomy and this the high court's view in Mihir Rajesha forget Mahi there are many other matters Mihir was not given in relief but other other final relief other accused in this mir were obviously arrested much before 6th November 2025 the judgment of Mir in pankage Bansil pankage Bansil were arrested on 14th June 23 whereas judgment of pankage bansil came on 3rd October so a constitutional principle can you say that pankage Bansel who's arrested on 14th June gets the relief. Mahir Rajesha and others who got arrested before 6th November gets the relief. But similarly now the strange situation any other accused arrested on 14th June 23 will not get the benefit of the judgment because Ram Krishna Aurora says it is prospective or any other accused arrested on the date of Mahir Rajesha will not get the benefit because the subsequent IO's judgment say that Mahir Rajesha is applicable prospectively.

[00:34:17]Surely a con this this this according to me according to me the constitutional principle under article 221 is if the court holds that it is applicable from its inception it is not a prospective regime especially since the judgment does not indicate any discussion on as to whether a judge this judgment has to be applied prospectively or not. Now the the expanding the use of the word henceforth. Now the now then the question arises then what do the judges mean by saying henceforth the it can be harmoniously read because we are talking about liberty here. Henceforth is this is the principle governing India from now on. Now but the law is always from what the law law was because prospective overruling judgment being prospective all that is settled principle there has to be application of mind unless default what is the default option any judgment suppose they say a judgment is passed today the the the the law is that is a law laid down from the inception if some situations it requires it it requires in some it results in unsettling uh law laid down for over a period of time then the court say okay because of these these reasons we are mandate we are holding that this law will be applicable from this date that is not here in this these cases only the word henceforth is there now this was the high court's amendment now again fortunately the there is this honorable court subsequent to Mahir by a judgment dated 1st April 2026 Rajinder Rajan versus Union of India 2026 SEC online supreme court 802 this court relied on uh Mah and in that case I have got the dates here where is that Raj yes the judgment is dated 1st April 2026 but arrest was 3rd May 2025 you must notice Mihir judgment is 6th November that is 6 months before the arrest of this person Rajendra Rajan Supreme Court relied on Mi and said that there is no question of denying the benefit of Mihir to anybody. Of course, doesn't the the Supreme Court is you know did not even look into the question of pro prospectivity because it is Supreme Court assumed or held that this law is the law which is applicable today. Therefore, the benefit of Mahir should be given to Dr. Rajinder Rajan who was the petitioner before the Supreme Court and who was arrested much before Mahir. So this is the as of now the law is now now all these judgments have come now now we just you know I must thank my colleagues Ronach and Ima they found a judgment which Delhi high court has passed on 13th May. Now that is an interesting judgment that I will uh there is two days back the Delhi High Court the issue arose in that case as to whether Nihir is applicable prospectively or not. Now what is that par 20. Now in this interestingly the court looks at all these pankage bansel uh prabir purka bihan all the judgments are uh this thing examined and the par 26 of this judgment this this this line I think I can't uh I can't paraphrase it better than what is written here I'll just read it in the opinion of this court a reading of Dr. Rajinder Rajan shows that Mihi Rajes Sha does not create a fresh prospective regime but merely reaffirms the constitutional requirement inherent in article 221 as earlier elucidated interelia in pankage bansal prabir and vihan. So this is a judgment of Delhi High Court 2 days before where they hold that this prospective using henceforth does it is not a new regime that is being created.

[00:38:15]It only reaffirms the original constitutional requirement inherent in article 221 that the grounds of arrest has to be given in writing as to be informed and these judgments expand that informed mean informed is equal to giving it to you in writing. So according to me you know now the question arises today you know after all these judgments what is the current position of law. Now my uh utmost humility my reading of these judgments are this pankage bansel no doubt PMLA now nobody can argue there is uh u retrospective there is no requirement to give grounds in writing prairka nobody can argue now that UAPA you cannot you have don't have to give grounds in writing after that Mahir Rajes sha IPC and any other offense uh statutes there is no uh dispute ute now that grounds of arrest has to be given in writing a possible interpretation may still issue may still arise on this henceforth now like I said supreme court has now but that judgment of supreme court does not look into this issue as to whether mir sha is applicable prospective prospective nobody erases the argument but unless somebody raises there's no reason to look at it because law is what the law is now high courts issue errors like I said now there are various uh high courts holding this view Delhi high court has are categorically held. I'm sure it's a matter of time before this issue comes to Supreme Court and fortunately or hopefully there will be a clarification saying that now in in interesting thing in the high court judgment they said Pankage Bansil was on 3rd October 2023 Prabhir was on uh Prabhir judgment was on 3rd October 23 so this high court says at least when you say prospective don't push it to Mihir Sha at least from pankage pansil you knew that you have to give grounds of arrest in writing. So they don't say it is prospective but at least if it is prospective it has to be from pankage bansel not from mirsha because misha doesn't do anything new.

[00:40:18]Mha only expands the principle of pankage bansel to IPC offenses and other statutes. Now in this context now now why is it now let's now I come to uh why is it that the courts are being uh taking on the role of they see these judgments are totally pro- liberty judgments by holding that you have to the because the courts are aware the kind of arrests that take place in our country. So the courts have expanded liberty expanded 221 because there is no nowhere it is written that it has to be given in writing. It only says the words used are communicated forthwidth in some statutes, informed of the arrest in some statutes. Now I must also say while before I go to the next point in Bhan there is section 50 CRPC which says informed in writing there is a section 50 capital A of CRPC which which is what is the new one? What is the 50 equivalent? H >> 48 48 of BNSS. Now in that it says that you have to give the grounds of you have to inform the person the near relative also of the uh uh reason where person is arrested etc. Now in Vihan Kumar is a concurring judgment but then justice Kotish Singh has a supplementary opinion in which it doesn't find place in the main judgment but in the supplementary judgment justice Kotishwar Singh says that this requirement of grounds of writing has to be extended and should be provided even to the relative. Just show me where is 50A in this.

[00:42:02]>> Just show me that. Yeah, 50A uh which is 48 of BNSS which is I won't read it 50A was introduced by an amendment subsequently in that is an obligation of the person making arrest to inform or the arrest to a nominated person that is to a relative etc. Now there the requirement under 50A is actually only to inform regarding the arrest and where is which police station he's kept etc. But in the supplementary opinion of justice Kotishwar Singh in Vihan Kumar it has been given uh such a pro liberty interpretation by saying that even my relative my father mother or brother who was being informed has to be informed of the grounds of arrest in writing. Now, now let's come to the question as to why is it that the courts are now court codes are uh stretching article 221 etc. to give these interpretations by saying that you have to give these grounds of arrest in writing etc. Now all of us know now normal IPC getting bail is one thing. Now we have many of these offenses now where there are twin conditions before getting bail. For let's start with section 45 PMLA where the the test is that the public prosecutor where a court is satisfied that the reasonable grounds of believing that he's not guilty of any offense that is 45 PMLA 43D5 of UAPA. Again twin conditions there the condition is that the court is of the opinion that there are reasonable grounds of believing that the accusition against such person is primma facy true section 37 of NDPS act again sim not guilty is the test and I guess I actually I didn't know 2126 companies act says with respect to section 447 companies act which deals with uh the this thing uh 447 dealing with fraud it says that to again unless Unless the court is not convinced that the person is not guilty then you can't get bail. Now all of us know with this test no trial court is able can can give bail. All of us we all criticize trial courts for not giving bail etc. But if they have to apply this test fully all of us know anybody who practices criminal law knows at the stage of bail for the trial judge to come to a conclusion that he is not guilty of an offense. We are asking for the moon. I don't think any trial court will be able to uh effectively give bail with this condition. Why I'm saying that I'm not.

[00:44:24]So which is why the Supreme Court fortunately expanded that definition uh even with these twin conditions in Najib. All of us all of you know Najib is the first time that the Supreme Court said even when these conditions are there these these restrict the these these herculean barriers have to be crossed even then article 21 cannot be taken away. long incarceration etc versus these twin conditions they need to be harmonized even naji supreme court doesn't say that oh if you are in jail for 6 years then ignore these twin conditions court supreme court will not say that because the statute is there till the time this is there in the statute be courts are bound to give effect to whether we may as lawyers can say we don't agree with it etc but as a court they there's no question of personal agreeing or not agreeing with the provision if it's there it is there but which is when the supreme court has interpreted of Because trial court can't do it. Supreme Court said constitutional courts high court supreme court can use the aid of article 21 and other provisions and harmonize this twin conditions with the statutory restrictions raised uh uh mentions mentioned in these situations. Now these judgments Najib is the first judgment.

[00:45:43]There are I won't bore you with uh reading judgments etc. Now after that Javeed Gulam Shik Jalaluin Khan these are in the context of UAPA Manisha Arvin Kal Prekash in which are in the context of PMLA these are the two most commonly used twin conditions. Now now Prem Prakashar Supreme Court goes to the extent of saying the twin conditions of section 45 of PMLA do not rewrite the principle that bail is the rule and jail is the exception. So what the court says is yes there there are twin conditions.

[00:46:15]Now it it's it's it's interesting in Najib the accused was in jail for more than 5 years in Javeed Gulam Nabi 4 years Jalaluduin Khan 2 years Manish Shishoda 18 months Prem Prakash 2 years Arvin Kajial 5 months now these judgments what has the court done now I don't think even after all these judgments the law is that you know Supreme Court has not said that you look at even with twin condition you say okay 20 you are for 6 years okay you grant pain forget twin conditions that's not what Najib says Najib says you harmonize the two. So while harmonizing it the per if Najib had not said what it did, how would any court examine with the twin conditions, how would the court have examined even sorry even considered period of detention as a ground to grant bail in UAP or PMLA could not have. So that is thanks to Najib and subsequent judgments following Najib that that Supreme Court has held that you can you can look at these twin conditions and article 21 and harmonize it. Now the latest judgment is that Gulf Omar Khaled judgment as it is known commonly. Now in that judgment also the judgment may have denied bail to Omar Khaled and somebody else one more person Shaji Leam I think but it granted bail to Gulfisha and many others in the same judgment how is it that it was grant if you read that judgment that judgment it only says this the judgment after analyzing material etc judgment says it is not automatic that when there are twin conditions like this it is not automatic that if you are in jail for 5 years you get bailed no that is not the is the event you examine the material primacy and see whether there is any vehement and voluminous uh credible material against the accused and then you harmonize the incarcination versus the uh the the material against which is why the court did precisely that and looked at the material against others. I'm not on the correctness or whatever that is not for me to say I'm I'm saying what the court did. The court examined the material against Gulfisha and others many others and said that in this case I can harmonize and the period of under incarcination gone by these people versus the material against them I'm willing to give bail applying najib etc article 21 I'm giving them bail but for Umar Kali then sharam imam I'm examining the material and I find that I'm not able to harmonize the period of incarcination by itself will not justify me giving bail now But my point is this even that judgment even the bail has been denied to some people even that judgment says that you can use principles of article 21 in cases where there are twin conditions like in PMLA and UAP. Now after that it is only application in each case. Now you can't you can't have a law saying that what do you like I said in some cases 2 years some cases four years some cases 18 months even in these judgments where they have used najib and granted bail you can't have a mathematical formula saying that in case you are in jail for x number of years you you know that courts can't say that which is why najib left it to the constitutional courts saying that you please harmonize this twin conditions versus this uh uh material can say accuse and then come to a conclusion apply your constitutional principles. Now the quotes which the the why I'm uh getting into this is wherever these what happens now twin conditions the problem if these twin conditions we all find if suppose our system you know with the we all know what in the trial court the backlog etc and it's humanly impossible for anybody to discuss these matters in a time with the existing infrastructure whatever so twin conditions are well and good but you find increasingly see judges find increasingly that twin conditions are there is impossible for to grant bail if you apply win conditions strictly at the same time it's impossible to conduct a trial within reasonable time. Though though accuser languishing in jails for years together normally a normal IPC offense issue doesn't arise because after some time you under trial you get bail at least in most states you get bail right in Kerala where I come from nobody's under trial for that long except maybe in murder cases and all that some but not not like a period with conscience but increasingly you find so that is when the courts have done judicial innovation and according to me even this 221 interpretation pankage bans even the interpretation najib these of all judicial innovation done by this honorable court to give the accused the or to what how do I put it not I'm I'm not saying pro accuse I'm saying concern for liberty now ultimately you're convicted is a different issue but as an under trial somebody being in jail for 8 years 10 years and this twin condition trial court impossible granting bail which is why the Supreme Court has is in every possible opportunity expanded attempted to expand the definition of expanded the scope of liberty and interpreted article 221. Now one additional ground there are cases now after that I'm not you know there are many cases where in UAPA in PMLA using pankage bansel prab etc accused have been released on bail saying you have not given the grounds of writing now see that what is the prejudice that is cost investigation nothing all it says is you give grounds of writing after that you want to arrest him again give him the grounds and arrest him so the accused has a right now like we get a judgment when you fire an SLP we get an order what do you do look at the order look at the reasoning and then challenge it same way an accused at the inception when he's arrested he gets this order from the police he looks at it he goes to his lawyer lawyer is able to advise him as to okay you can challenge his arrest or you don't have to you can't challenge the arrest informed decision can be taken at the first instance where your liberty is being curtailed now this is the long and the short of this development of the law I think I'm happy to answer any uh questions that you have there anything else you Yeah.

[00:52:27]>> Thank you very much. Thank you everyone.

[00:52:38]Thank you Raen. So nicely explained uh the timing and other thing what are the grounds etc. various judgments and uh the difference between several judgment.

[00:52:49]You made a lot of research very hard work seems to be a very very bright future and that's what our this thing we give a huge claps request I mean a will give word of thanks good afternoon everyone firstly I would like to thank sish sir for this opportunity Uh as we all know today's speaker is uh below senior advocate person sir. Uh I thank you for sparing this Friday afternoon for all of us from all everyone present here. Uh my sincere and heartfelt thanks to the esteemed speaker Basaner for enlightening exposure on the topic of RSU students. This session actually provided a clear and nuanced difference between the powers of arrest and necessity necessity of arrest whereby investigating authority is not having any right to arrest a person by claiming XY Z factors because they clearly violate articles 20 221 and 225 which comes under part three of the constitution which are fundamental rights given by the constitution of India. India to every person.

[00:54:15]The juristprudence of uh grounds of arrest started from pankage bans which was a matter dealing in UAPA. The same proposition was used in Ram Kishwar Aurora. Next which was followed in Prairkad whereby the court held that the grounds of arrest should be given in writing.

[00:54:40]Later the same proposition was followed in Vhan Kumar which was dealing in the offense of IPC which held that there is no harm in giving grounds of arrest in writing followed by KC ready the same matter was dealing in IPC as well. Now this clear articulation on grounds of arrest to be given to a person and his relatives was clearly given in Mihirkumar.

[00:55:17]>> Mihir Kumar. Next the clear now you clearly also articulated on the harmonizing of thin condition of bail is a rule. Jail is the uh exception by different cases which the proposition was laid down by Najim Arvin Krian Manodia like cases.

[00:55:42]Finally, I would like to thank you sir for by quoting uh the great Ramjet Malani's uh quote as you have also quoted on what a lawyer can have uh what should a criminal lawyer should be having his uh hold towards any person who comes towards him. A lawyer who refuses to defend a person himself is guilty of misconduct, professional misconduct. Thank you sir.

[00:56:14]Thank you. This the way we are giving an opportunity to youngsters regularly for CV reading or vote of time is the encouragement we are giving and other than seniors and all. Thank you very much. Now you can ask any question after this we'll have a cup of tea. Any questions please?

[00:56:33]Yeah.