New Delhi: The Supreme Court on Wednesday ordered the immediate release of NewsClick founder Prabir Purkayastha, while declaring that his arrest and subsequent remand was “invalid in the eyes of law”.
The apex court also remarked that his arrest and remand was done in a "clandestine manner and was nothing but a blatant attempt to circumvent the due process of law".
A bench comprising Justices B R Gavai and Sandeep Mehta said: “There is no hesitation in the mind of the court to reach to a conclusion that the copy of the remand application in the purported exercise of communication of the grounds of arrest in writing was not provided to the accused appellant or his counsel before passing of the order of remand dated 4th October 2023 which vitiates the arrest and subsequent remand of the appellant”.
Purkayastha was represented by senior advocate Kapil Sibal and advocates Arshdeep Khurana and Nitin Saluja. Sibal had referred to the observations made in the judgment of Pankaj Bansal (2023) and urged that since the grounds of arrest were not furnished to his client at the time of his arrest and before remanding him to police custody, his continued custody is rendered grossly illegal and a nullity in the eyes of law because the same is hit by the mandate of Article 22(1) of the Constitution.
In the Bansal judgment, the apex court had made it mandatory for the Enforcement Directorate to disclose the grounds of arrest in writing to the accused in Prevention of Money Laundering Act
"We have no hesitation in reiterating that the requirement to communicate the grounds of arrest or the grounds of detention in writing to a person arrested in connection with an offence or a person placed under preventive detention as provided under Articles 22(1) and 22(5) of the Constitution of India is sacrosanct and cannot be breached under any situation," said Justice Mehta, who authored the judgment on behalf of the bench.
Article 22(1) reads, 'Any person who is in custody has to be informed as to why he has been arrested', while Article 22(5) says any person is detained shall be informed of the grounds on which the order has been made. The bench stressed that non-compliance of this constitutional requirement and statutory mandate would lead to the custody or the detention being rendered illegal.
The apex court has also widened the scope of judgment in Pankaj Bansal’s case to the anti-terror law, the Unlawful Activities Prevention Act or any other offences. "We have no hesitation in holding that the interpretation of statutory mandate laid down by this court in the case of Pankaj Bansal on the aspect of informing the arrested person the grounds of arrest in writing has to be applied pari passu (equal footing) to a person arrested in a case registered under the provisions of the UAPA”, said the bench.
Justice Mehta said 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 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”.
Additional Solicitor General S V Raju had referred to the provisions contained in Articles 22(1) and 22(5) of the Constitution and urged that there is no such mandate in either of the provisions that the grounds of arrest or detention should be conveyed in writing to the accused or the detenue, as the case may be.
Raju argued that since the investigation has been completed and the charge sheet filed, "the illegality/irregularity, if any, in the arrest of the appellant and the grant of initial police custody remand stands cured and hence, the appellant cannot claim to be prejudiced by the same".
Rejecting Raju’s contention, the bench said the purpose of informing to the arrested person the grounds of arrest is salutary and sacrosanct as this would be the only effective means for the arrested person to consult his advocate, oppose the police custody remand and to seek bail. "Any attempt to violate such a fundamental right, guaranteed by Articles, 20, 21 and 22 of the Constitution of India, would have to be dealt with strictly," said Justice Mehta.
On the aspect of Purkayastha’s arrest and remand, the bench said: “This entire exercise was done in a clandestine manner and was nothing but a blatant attempt to circumvent the due process of law; to confine the accused to police custody without informing him the grounds on which he has been arrested; deprive the accused of the opportunity to avail the services of the legal practitioner of his choice, so as to oppose the prayer for police custody remand, seek bail and also to mislead the court”.
The bench also declined to accept the police's contention that Pankaj Bansal’s judgment, which was delivered on October 3, 2023, was uploaded on the website in the late evening, therefore it would not apply to the present case.
An FIR was lodged on August 17, 2023 but the copy was not provided to the accused appellant despite an application for it, till the police custody remand order was passed. Purkayastha was arrested on October 3, 2023 and he was presented before the remand judge at his residence sometime before 6:00 am on October 4, 2023.
The apex court observed that in the remand order, two lines were subsequently inserted to state a copy of the remand application has been sent through WhatsApp to the counsel of the accused.
The court said the grounds of arrest informed in writing must convey to the arrested accused all basic facts on which he was being arrested to provide him an opportunity of defending himself against custodial remand and to seek bail. “Thus, the ‘grounds of arrest’ would invariably be personal to the accused and cannot be equated with the ‘reasons of arrest’ which are general in nature”, it said.
The petitioner had moved the apex court assailing an order passed by the Delhi High Court on October 13, 2023, rejecting the writ petition filed against the arrest and remand.
“The arrest of the appellant followed by remand order dated 4th October 2023 and so also the impugned order passed by the High Court of Delhi dated 13th October 2023 are hereby declared to be invalid in the eyes of law and are quashed and set aside”, said Justice Mehta.
According to the FIR, huge funds to the news portal allegedly came from China to "disrupt the sovereignty of India" and cause disaffection against the country. It was also alleged that Purkayastha conspired with a group -- People's Alliance for Democracy and Secularism (PADS) -- to sabotage the electoral process during the 2019 Lok Sabha polls.
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