Source: Kerala High Court 

Why in News? 

Recently, the Kerala High Court in the matter of Saheer E.P. v National Investigating Agency has held that it is mandatory for all the courts to furnish the grounds of arrest to the arrested person to make the arrest valid. 

What was the Background of the Saheer E.P. v National Investigating Agency Case?  

• In this case the petitioner was the 4th accused of Unlawful Activities (Prevention) Act (UAPA) case. 
• The petitioner ’s bail was dismissed by the Special court for harbouring the 2nd accused. 
• The 2nd accused was the active member of the Popular Front of India (PFI), he was also associated with the Indian Fraternity Forum (IFF). 
• 1st accused along with 2nd accused set up ISIS module in Kerala and recruited youths. 
• All these accuses along with 4th accused were engaged into various criminal activities to raise funds for their terrorist activities. 
• They were planning various terrorist activities to harm the integrity and national security of India. 
• The petitioner pleaded that he had no knowledge that 2nd accused is a terrorist and he added that he was just training the 2nd accused for stock trading.  
• The petitioner filed an appeal before the Kerala High Court because he was not furnished with the grounds of his arrest and therefore shall be granted bail by referring the precedent Prabir Purkayastha v. State (NCT of Delhi) (2024). 

What were the Court’s Observations? 

• The Kerala High Court observed that it cannot be proved that 4th accused was harbouring 2nd accused just because his name appeared in the newspaper. 
• It was also added by the court that as per the reading of Section 19 of UAPA, it is clearly given that harbouring can only be done if the accused has the knowledge that he is harbouring a terrorist. 
• It was inferred from these provisions that it cannot be said that the petitioner had no knowledge about 2nd accused as he has acquaintances with him and the same has not been disproved in the Trial Court. 
• The High Court also observed Section 43D (5) of UAPA if a bail application is opposed and if there are reasonable grounds to believe the accusation is prima facie true, the Special Court shall not grant bail. 
• However, this is not the case in constitutional courts while in the present case the accused was convicted recently and therefore there is no such infringement of his fundamental rights to approach the Constitutional Court. 
• The court therefore dismissed the petition that he was not informed with the grounds of his arrest as per the precedent Prabir Purkayastha v State (NCT of Delhi) (2024) while he was informed orally about the grounds of his arrest therefore the arrest was valid. 

What was Judgment in Prabir Purkayastha v. State (NCT of Delhi)? 

Brief Facts 

• In this case, the officers of the PS Special Cell, New Delhi carried out extensive raids at the residential and official premises of the appellant and the company, namely, M/s. PPK Newsclick Studio Pvt. Ltd.( company) of which the appellant is the Director in connection with FIR registered for the offences punishable under the sections of the Unlawful Activities (Prevention) Act, 1967 (UAPA) and the Indian Penal Code, 1860 (IPC). 
• The appellant was arrested in connection with the said FIR on 3rd October 2023 and the arrest memo was in a computerised format and does not contain any column regarding the grounds of arrest of the appellant. 
  • This very issue is primarily the bone of contention between the parties to the appeal. 
• The appellant was presented in the Court of Learned Additional Sessions Judge and the appellant was remanded to seven days police custody vide order dated 4th October 2023. 
• The appellant promptly questioned his arrest and the police custody remand granted by preferring criminal appeal in the High Court of Delhi which stands rejected by the learned Single Judge of the High Court of Delhi. 

Court's Analysis and Findings 

• The court found no significant difference in the language used in Section 19(1) of PMLA and Section 43B (1) of UAPA regarding informing the arrested person of the grounds for arrest. 
• The court stated that interpreting the phrase "inform him of the grounds for such arrest" made in the Pankaj Bansal case (which dealt with PMLA) should be applied to cases under UAPA too. 
• The court noted that the provisions regarding communication of grounds of arrest in both UAPA and PMLA find their source in the constitutional safeguard provided under Article 22(1) of the Constitution of India. 
• The court held that the interpretation laid down in the Pankaj Bansal case regarding informing the arrested person of the grounds of arrest in writing should be applied equally to persons arrested under UAPA. 
• The court rejected the argument that there are variations in the overall provisions of PMLA and UAPA that would impact the statutory mandate to inform grounds of arrest. 
• The court emphasized that both statutes have a common modified application of Section 167 of the Code of Criminal Procedure, 1973. 
• The court concluded that the interpretation of the statutory mandate laid down in the Pankaj Bansal case on informing the arrested person of the grounds of arrest in writing should be applied "pari passu" (on equal footing) to persons arrested under UAPA. 
• The court said that this principle shall be applicable progressively and not retrospectively.  

Conclusion and Order 

• The arrest and remand order are declared invalid and set aside. 
• The appellant was directed to be released on furnishing bail bonds to the trial court's satisfaction. 
• The appeal was allowed. 

Case Law 

• Pankaj Bansal v Union of India (2023): In this case it was held that the communication od grounds for arrest is mandatory even though it is not expressly given under the provisions under the Prevention of Money laundering Act (PMLA).