It is perhaps most refreshing, most reassuring and definitely so also most reinvigorating to note that in the fitness of things, the Supreme Court while striking the right chord in a most learned, laudable, landmark, logical and latest judgment titled Ashish Kakkar vs UT of Chandigarh in Criminal Appeal No. 1518/2025 [@ SLP (Crl.) No. 1662/2025] that was pronounced as recently as on March 25, 2025 in the exercise of its criminal appellate jurisdiction has set aside the arrest and remand for an appellant in wake of the most historic and most commendable judgment in Prabir Purkayastha vs State (2024) 8 SCC 254 which explicitly held that supplying grounds of arrest in writing as prescribed under Section 50 of the Code of Criminal Procedure requires mandatory compliance, lest the arrest and remand will stand vitiated in the eyes of the law.
To put it differently, the top court minced absolutely just no words whatsoever to clarify that an arrest memo simply does not meet the mandatory requirement of supplying or furnishing grounds of arrest to the accused as obligated under Section 47 of the Bharatiya Nagarik Suraksha Sanhita (BNSS) 2023 which replaced the Code of Criminal Procedure (CrPC) on July 1, 2024, thus setting aside the arrest and remand of the appellant. It was also made absolutely clear by the Apex Court that non-compliance with this obligatory Constitutional mandate under Article 22(1) of the Constitution vitiates the arrest. There is no reason that why police should not comply with what has been so explicitly laid down and directed by the Supreme Court in this leading case!
By the way, we need to note that this leading case originated from the arrest of Ashish Kakkar in December 2024 in connection with a First Information Report (FIR) that had been registered under Sections 318(4) (cheating), 319(2) (extortion), 336(3) (forgery for cheating), 339 (using forged documents), 352 (insult to modesty of a woman), and 61(2) (criminal conspiracy) of the Bharatiya Nyaya Sanhita, 2023 which substituted the Indian Penal Code (IPC) on July 1, 2024. It must be disclosed here for the benefit of my esteemed readers that the arrest of Ashish Kakkar was executed by the Chandigarh Police and was presented before a Magistrate and he was then remanded to police custody by the court for three days. Quite intriguingly, we must see as pointed out by the top court that the arrest memo provided to him contained only basic details such as his name, the place of arrest and a statement that he was arrested based on the statement of a co-accused.
Most damningly, it was very rightly pointed out by the top court that arrest memo lacked any specific ground of arrest such as the charges framed against him or the reasons necessitating his arrest. No denying or disputing it! It must be revealed here that Ashish Kakkar challenged his arrest by the police and remand by the Magistrate before the Punjab and Haryana High Court primarily on three grounds as his defence which are as follows:
- Non-compliance with Section 35 of the BNSS 2023 (formerly Section 41A of CrPC) which makes it obligatory to issue a notice of appearance before arrest in certain cases;
- Denial of the opportunity to be heard at the time of remand which makes the remand itself flawed; and
- Non-furnishing of the grounds of arrest which is in gross violation of Section 47 of the BNSS 2023 (formerly Section 50 of the CrPC) and Article 22(1) of the Constitution.
Most astoundingly, what followed was that the Punjab and Haryana High Court at Chandigarh in its order that was pronounced on January 30, 2025 just refused to entertain Ashish Kakkar’s plea. This left Ashish with no option but to go in appeal to the Supreme Court which he did then in his defence and was represented by senior advocate Siddharth Aggarwal! Very rightly so!
It is worth paying attention that the Bench of Apex Court comprising of Hon’ble Mr Justice MM Suresh and Hon’ble Mr Justice Rajesh Bindal who authored this most robust, rational and recent judgment was most unambiguous in holding that merely providing an arrest memo without substantive particulars does not satisfy the mandatory requirement under CrPC, thereby rendering the arrest and remand unlawful. Consequently, we see that the Apex Court deemed it fit to set aside the impugned judgment and ordered his immediate release unless he was required in any other case.
At the very outset, this brief, brilliant, bold and balanced judgment sets the ball rolling by first and foremost putting forth in the opening para that:
Leave granted.
To put things in perspective, the Bench envisages in the next para of this notable judgment that:
The appellant was arrested on 30.12.2024 in connection with FIR No. 33/2022 registered under Sections 384, 420, 468, 471, 509 and 120B of the Indian Penal Code, 1860 and remanded to police custody for a period of 3 days.
It is worth paying singular attention that the Bench then lays bare in the next para of this most noteworthy judgment that:
Vide the present appeal, the appellant has challenged both his arrest and the remand order dated 30.12.2024 on three grounds, namely, there is a clear non-compliance of the mandate under Section 41-A of the Code of Criminal Procedure, 1973 (hereinafter referred to as ‘the Code’); the appellant was not heard at the time of remand and the grounds of arrest as mandated under Section 50 of the Code have not been furnished to the appellant as against the mere arrest memo.
On a pragmatic note, the Bench then notes in the next para of this robust judgment that:
We are inclined to consider only the last issue raised by the appellant with respect to the non-furnishing of the grounds of arrest.
It would be instructive to note that the Bench then notes in the next para of this progressive judgment that:
Upon perusing annexure P-3, we can see that what has been provided to the appellant is only an arrest memo in the prescribed format, which is meant to be given to the appellant by way of an intimation. It has been filled up with the name of the appellant along with the place of arrest. Additionally, it has been written that he has been arrested based upon the statement of the co-accused.
It is also worth noting that the Bench then notes in the next para of this remarkable judgment that:
We are in agreement with the submission made by the learned senior counsel appearing for the appellant that the said arrest memo cannot be construed as grounds of arrest, as no other worthwhile particulars have been furnished to him.
Most significantly, most brilliantly and most remarkably, the Bench then encapsulates in the next para of this most pertinent judgment that:
This, being a clear non-compliance of the mandate under Section 50 of the Code which has been introduced to give effect to Article 22(1) of the Constitution of India, 1950 we are inclined to set aside the impugned judgment, particularly, in light of the judgment rendered by this Court reported as Prabir Purkayastha v. State (NCT of Delhi) - (2024) 8 SCC 254. It is very rightly pointed out in para 30 of Prabir Purkayastha’s judgment stating that –
30. Hence, 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. Non-compliance of this constitutional requirement and statutory mandate would lead to the custody or the detention being rendered illegal, as the case may be.
As a corollary, the Bench then hastens to add in the next para of this most enlightening judgment that:
In such view of the matter, the impugned judgment stands set aside and the arrest of the appellant followed by the consequential remand order are also set aside.
Adding more to it, the Bench then further directs in the next para of this forthright judgment that:
The appellant shall be set at liberty, until and unless he is required in any other case. The appeal stands allowed accordingly.
Finally, the Bench then draws the curtains of this enriching judgment by holding and directing in the final para that:
Pending application(s), if any, shall also stand disposed of.
No doubt, this most historic judgment by the Supreme Court will definitely act as a very strong bulwark against arbitrary arrest by police. It is in consonance with some leading judgments like Joginder Kumar vs State of UP (1994) and DK Basu vs State of West Bengal (1997) which underscores clearly the protection of legal rights and personal liberty during arrests. It will ensure that arrestees are fully informed of the reasons for their detention. There can be just no gainsaying that it is definitely the bounden duty of all the courts including the High Courts also to ensure that this most commendably judgment by the Apex Court is most strictly implemented in letter and spirit! No denying or disputing it!
Sanjeev Sirohi, Advocate,
s/o Col (Retd) BPS Sirohi, A 82, Defence Enclave,
Sardhana Road, Kankerkhera, Meerut - 250001, Uttar Pradesh
