On 28 November 2024, it appears that two different benches of single judges of the Karnataka High Court (Bengaluru Bench) passed judgments concerning the same petitioner—John D. Moses—who assailed his arrest by way of a writ petition [WP 22042 of 2024 decided on 28.11.2024] and his continued detention in a bail petition [Crl. Petition 9537 of 2024 decided on 28.11.2024]. John Moses did not have a good day in the High Court, alas, as he lost in both courtrooms.
The allegations against Moses were grave. Alleged to be the 'leader' of gang involved in land grabbing by making fake documents, the stringent Karnataka Control of Organised Crimes Act 2000 [KCOCA] had been invoked against him in July. Even as Moses was in jail after his earlier arrests, the police now moved to secure his custody in July 2024 in the KCOCA case. How the police effected this arrest became a focal point for both the litigations which Moses subsequently filed before the High Court.
Relying upon the recent judgments of the Supreme Court in Pankaj Bansal, Prabir Purkayastha, and also Arvind Kejriwal, Moses contended that the grounds of arrest had not been furnished to him. Failure to do so not only rendered his arrest illegal, but also vitiated his subsequent custodial detention. In both courts, the government contended that this requirement to furnish written grounds of arrest was not applicable to the case at hand, and in any case the facts suggested there had been sufficient compliance with the law as laid down by the Supreme Court.
This is where things become interesting. While Justice Shetty has held in the bail petition that furnishing of the written grounds of arrest was a requirement applicable to all cognizable cases (and found substantial compliance on the facts), Justice Nagaprasanna in the writ petition has held that the Supreme Court's judgment was not applicable to all cases.
The basis to restrict the applicability of the written grounds of arrest requirement appears twofold. Justice Nagaprasanna looks at precedent to hold that there are older Supreme Court judgments offering a different view, and secondly he argues from the point of what one may call administrative discomfort, to conclude that only serious crimes should have such serious rules.
With respect, the opinion's invocation of precedent is difficult to follow. Decisions on preventive detention are cited to conclude that "What would unmistakably emerge from the elucidation qua Article 22 by the Apex Court is that under the preventive detention laws of any kind, be it COFEPOSA, MISA or any other provision which permits prevention detention, grounds of such detention should be made known to the detenue. The Apex Court has thus interpreted Articles 22(1) and (2) of the Constitution of India to become applicable and restrictable to preventive detention cases." This is plainly incorrect, as it ignores Article 22(3) of the Constitution which states that Articles 22(1) and (2) do not apply to the preventive detention regime.
This unsustainable finding becomes the segue to the media-grabbing section of the opinion, which looks at the impracticality of what the Supreme Court has done by enforcing such a strict rule upon ordinary police stations, which would open a "pandora's box". Which is why the strict rules should be confined to strict cases. Why a KCOCA case is not strict enough, one can only wonder, but that is not the point.
Justice Nagaprasanna's opinion has echoed a concern that many courts have voiced since May 2024, when the Supreme Court broke new ground by mandating that written grounds of arrest be furnished to accused persons. Surely, though, the Supreme Court was not unaware that it was taking a step which would inconvenience law enforcement agencies. If anything, the period between Pankaj Bansal and Prabir Purkayastha shows that the Supreme Court clearly knew that it was taking such a step now. Recall that after Pankaj Bansal it was precisely this argument of inconvenience which led courts to prevaricate on the extent of its ruling in the months thereafter, and in fact led the Delhi High Court to dismiss Purkayastha's petition in the first place by holding that the rule applied only to PMLA cases but not UAPA ones.
That the Supreme Court did not wish confine its written grounds for arrest requirement to the UAPA, but all cases, was unequivocally expressed through Prabir Purkayastha where it had held that a person has a "fundamental and a statutory right to be informed about the grounds of arrest in writing" whether they are "arrested for allegation of commission of offences under the provisions of UAPA or for that matter any other offence(s). [Emphasis mine]". The paragraph is as clear a peroration as one can get. It is a different matter that some law enforcement agencies, and courts, may choose to close their ears in response to it.
The circumstances of the Moses petitions make it likely that the Supreme Court will be re-entering the fray sooner rather than later on this issue of grounds for arrest.* In a sense, the present situation after Prabir Purkayastha seems like the experience of the Supreme Court of the United States in the years of Chief Justice Warren when it cast constitutional criminal procedure remedies in stricter terms, prompting a flurry of outrage at the law enforcement level which was echoed by many state courts.
One hopes that the Indian Supreme Court remains firmly wedded to its view in Prabir Purkayastha, which is a nod to the adage that for fundamental rights on personal liberty to be meaningful, they should be inconveniencing the law enforcement agencies.
*A bench of the Delhi High Court had also recently held that the requirement applies to all cases, creating a dissension amidst High Courts as well.
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