By Adv. R. S. Agrawal : 

 

AFTER perusing the contents of the criminal writ petition VickyBharat v. the State of Maharashtra and another along with few dozen similar petitions, the Bombay High Court division bench at Mumbai, consisting of Justice Sarang Kotwal and Justice S. M. Modak, has formed an opinion that issue relates to interpretation of section 50 of the Code of Criminal Procedure, 1973 (Cr.P.C.).In some of the petitions , the interpretation of sections 41 and 41A of Cr.P.C. is also necessary. The common contention in all these petitions is the alleged violation of these provisions rendering the petitioners’ continued detention in custody as illegal detention. The petitioners are seeking their release on this ground .

 

The facts pertaining to these petitions individually are obviously different and, therefore, before considering the fact in each of these petitions separately, the Court thought it fit to consider the interpretation of these provisions. Subject to such interpretation, an individual petition from this group can be decided separately. To afford an opportunity to the counsel appearing for both the sides, the Court has listed all these cases together. Advocate General Birendra Saraf put forth the perspective on the issue on behalf of the State of Maharashtra. Mrs Aruna Pai and Ms Nitee Punde appeared on behalf of the respective investigating agencies. After hearing both the sides, extensively, the HC has been of the opinion that these issues require serious consideration by a Larger Bench. There are two main contingencies in which the issues can be referred to a Larger Bench.

 

The first contingency is- if there is a difference of opinion of the Coordinate Benches of equal strength, then the matters, for that issue can be referred to a Larger Bench. Similarly, when a Bench is of the opinion that the issues can be more advantageously decided by a Larger Bench; in that case also the issues can be referred for consideration to a Larger Bench. Rule 8 of Chapter I of the Bombay High Court Appellate Side Rules, 1960 provides for Reference to two or more Judges- “If it shall appear to any Judge, either on the application of a party or otherwise, that an appeal or matter can be more advantageously heard by a Bench of two or more Judges, he may report to that effect to the Chief Justice, who shall make such order thereon as he shall think fit.” In fact, the Supreme Court, in the judgments of Arnesh Kumar and Satendra Kumar Antil (2014) 8 SCC 273 have repeatedly held that the provisions of sections 41 and 41A are required to be complied when the police officer wants to arrest a person. That also means even for offences which are punishable for more than seven years, the police officers do not have to arrest the accused when his arrest is not necessary.

 

In that case, the police officer has to issue a notice to such person under section 41A of Cr.P.C. asking him to appear before him. Section 41A(3) further provides that if such person complies with the notice then he shall not be arrested unless the reasons to be recorded that the police officer is of the opinion that he ought to be arrested. Again in this situation the police officer is given an option to arrest such person, but he has to record his reasons for such an arrest. Therefore, in the Court’s opinion, it is not the requirement of law where the police officers want, to arrest a person, they have to give notice under section 41A of Cr.P.C. to the accused. In fact, when the arrest of a person is not required, only then the notice is required to be issued. The accused person, on receiving such a notice , can easily destroy the evidence , abscond or leave the country.

 

This may affect the cases where the offences are punishable by up to seven years’ punishment in case of cheating or misappropriation of huge amounts where in many persons are cheated. Based on the discussion in the judgement, the HC division bench has formulated these important questions for consideration by a Larger Bench : (1) Whether the ratio of the decisions in the cases –Pankaj Bansal v. Union of India (2023)SCC On Line SC 1244, Ram Kishor Arora V. E.D. (2023) SCC OnLine 1682, Prabir Purkayastha v. State (NCT of Delhi)(2024)SCC OnLine 934 are applicable to section 50 of the Cr.P.C., 1973 and involving the offences under the other statutes than Prevention of Money Laundering Act, 2002 and Unlawful Activities (Prevention) Act, 1967? (2) Whether section 50 of the Cr.P.C. mandates the furnishing of grounds of arrest in wring to the accused? (3) If it is held that communication of grounds of arrest in writing is necessary under section 50 of Cr.P.C. , then (i) Whether it has to be furnished at the time of arrest any time before consideration of the first remand application? (ii) whether the Court has discretion to consider such necessity depending on the gravity of offence or circumstances in which the accused is arrested. (iii) Whether in the given case, the Court can consider the prejudice caused to the accused for not furnishing the grounds of arrest in writing?(iv) Before which forum the arrested person can raise his grievance for his release on this ground? (v) For implementation of this mandate , what should be the cut-off date? 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, can he be arrested again after following due procedure after his release? 6. Whether the notice under section 41A is required to be given before arrest in all cases and in particular, in the cases where the offence is punishable up to seven years, when the arrest of an accused is necessary?

 

The HC has stated that besides answers to these questions, 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 remand report sufficiently in advance to the arrested accused before his first remand application is considered by the appropriate Court. The HC has directed the Registry to place this order at the earliest before the Chief Justice for consideration for placing it before a Larger Bench consisting of three or more Judges, as the issue raised in these petitions is in respect of alleged illegal detention of large number of arrested accused. This Order has been pronounced on January 31,2025.