Newsclick’s Founder Steps Out Of Tihar After SC Says Arrest Invalid

Underlining that any person arrested for any 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”, the Supreme Court on May 15 declared as “invalid” the arrest and subsequent remand of NewsClick web portal founder-editor Prabir Purkayastha under the Unlawful Activities (Prevention) Act and ordered his immediate release.

Arrested on October 3 last year after the Delhi Police Special Cell conducted searches across Delhi-NCR and Mumbai on the premises of journalists, technicians and contributors associated with the news portal, Purkayastha walked out of Tihar Jail hours after the Supreme Court order.

The FIR against Purkayastha included allegations of attempts to show Kashmir and Arunachal Pradesh as “not parts of India”; discrediting the government’s fight against Covid-19; funding the farmers’ agitation and “putting up a spirited defence of legal cases” against Chinese telecom companies.

The bench of Justices B R Gavai and Sandeep Mehta quashed and set aside Purkayastha’s arrest, the remand order of October 4, 2023 and the Delhi High Court order of October 13, 2023 that upheld the arrest.

Directing that he be released on furnishing bail bonds to the satisfaction of the trial court, the bench made it “abundantly clear that none of the observations made” in its order “shall be treated as a comment on the merits of the case”.

It noted that neither Purkayastha nor his counsel had been informed about the grounds of arrest until his liberty was deprived. Expanding the scope of its October 3, 2023, ruling in the Pankaj Bansal vs Union of India case wherein it said that the Enforcement Directorate (ED) should furnish the grounds of arrest under the Prevention of Money Laundering Act (PMLA) in writing to an accused at the time of arrest, the bench said this should apply to arrest for all offences.

Rejecting the opposition to this, it said, “We find that the provision regarding the communication of the grounds of arrest to a person arrested contained in Section 43B (1) of the UAPA is verbatim the same as that in Section 19(1) of the PMLA.”

It said “upon a careful perusal of the statutory provisions… we find that there is no significant difference in the language employed in Section 19(1) of the PMLA and Section 43B(1) of the UAPA which can persuade us to take a view that the interpretation of the phrase ‘inform him of the grounds for such arrest’ made by this Court in the case of Pankaj Bansal… should not be applied to an accused arrested under the provisions of the UAPA”. The bench said “both the provisions find their source in the constitutional safeguard provided under Article 22(1) of the Constitution of India. Hence, applying the golden rules of interpretation, the provisions which lay down a very important constitutional safeguard to a person arrested on charges of committing an offence either under the PMLA or under the UAPA, have to be uniformly construed and applied”.

Article 22 (1) of the Constitution says “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”. The bench said, “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 (ranking equally and without preference) to a person arrested in a case registered under the provisions of the UAPA…

Resultantly, 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(s) 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”.

It said “the purpose of informing to the arrested person the grounds of arrest is salutary and sacrosanct inasmuch as, this information would be the only effective means for the arrested person to consult his Advocate; oppose the police custody remand and to seek bail. Any other interpretation would be tantamount to diluting the sanctity of the fundamental right guaranteed under Article 22(1) of the Constitution of India”.

It said, “the Right to Life and Personal Liberty is the most sacrosanct fundamental right guaranteed under Articles 20, 21 and 22 of the Constitution” and “any attempt to violate such fundamental right… would have to be dealt with strictly”.

It noted that the grounds of arrest were not communicated to Purkayastha or his lawyer before he was detained. “The copy of the FIR was provided to Shri Arshdeep Khurana, learned Advocate representing the accused, for the first time on 5th October, 2023 and hence, till the time of being deprived of liberty, no communication had been made to the appellant regarding the grounds on which he had been arrested… Thus, by the time the Advocate engaged by the accused appellant had been informed, the order of remand had already been passed. Unquestionably, till that time, the grounds of arrest had not been conveyed to the appellant in writing,” it said.

The bench said the arrest memo only contains the reasons for arrest but not the grounds of arrest. It said “there is a significant difference in the phrase ‘reasons for arrest’ and ‘grounds of arrest’. The ‘reasons for arrest’ as indicated in the arrest memo are purely formal parameters, viz., to prevent the accused person from committing any further offence; for proper investigation of the offence; to prevent the accused person from causing the evidence of the offence to disappear or tampering with such evidence in any manner; to prevent the arrested person for making inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to the Investigating Officer”.

“These reasons would commonly apply to any person arrested on charge of a crime whereas the ‘grounds of arrest’ would be required to contain all such details in hand of the Investigating Officer which necessitated the arrest of the accused. Simultaneously, the grounds of arrest informed in writing must convey to the arrested accused all basic facts on which he was being arrested so as 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.

Source: Agencies