All accused in custody can question lawfulness of arrest for non-service of reasons in writing even if they were arrested before May 15, 2024: Karnataka High Court

The Hindu

25-04-2025

In a judgment with far-reaching consequences on legality of arrest and benefitting a large number of accused persons in judicial custody, the High Court of Karnataka has declared that all the accused, except habitual offenders, are entitled to claim legality of their arrest due to non-service of grounds/reasons of arrest in writing to them by the police, even if they were arrested before May 15, 2024.
The High Court said the benefit of law laid down by the apex court in Prabir Purkayastha's case would be available to accused persons retrospectively, as it related to rights guaranteed under the Constitution.
The apex court, in the judgment in Prabir Purkayastha vs. State (NCT) of Delhi delivered on May 15, 2024, declared that non-service of grounds/reasons in writing to a person arrested under the Unlawful Activities (Prevention) Act vitiates the process of arrest as it infringes upon the right of accused person to be informed about the grounds of arrest under Article 22(1) (an arrested person shall be informed of the grounds of arrest and allowed to consult a lawyer of his or her choice) of the Constitution.
Justice Hemant Chandangoudar passed the order while ordering the release of 20-year-old Hemanth Datta of Arsikere in Hassan district, who was arrested on February 17, 2023, on the charge of murder. The petitioner, who is in judicial custody on rejection of his bail pleas, filed the petition in March 2025 contending that his arrest itself was illegal as no grounds of arrest were served to him by the police.
The precedent
Citing the judgement in Purkayastha's case, the High Court said that '... the argument against retrospective application of the principle of procedural justice enunciated in the case of Prabir Purkayastha does not hold good, more so, when the rule of beneficial construction goes beyond the realm of procedural law, and prescribes mitigation or modification of penalty in light of post facto change in substantive law.'
Stating that the legal ratio enunciated in Purkayastha's case has merely expounded the pre-existing constitutional guarantee enshrined in Article 22(1) of the Constitution, which has been in effect since January 26, 1950, Mr. Justice Chandangoudar said that any violation of the right to be afforded an opportunity to make an effective representation against the arrest or an order of remand in relation to any offence, shall constitute a contravention of the constitutional guarantee under Article 22(1) of the Constitution and the statutory safeguard under Section 50 of the Criminal Procedure Code, even if the arrest is made prior to the pronouncement of the judgment in Prabir Purkayastha's case.
Trial courts to consider
Meanwhile, the High Court directed that all the trial courts in the State should consider applications for bail made by those in remand and prejudiced on account of non-service of grounds of arrest, even if the accused persons in custody were arrested prior to May 15, 2024.
However, the High Court made it clear that the retrospective benefit of non-service of grounds of arrest in writing would not be available to those arrested under the provisions of the Prevention of Money Laundering Act, as the apex court has already clarified this aspect.