Bbharatiya Nagarik Suraksha Sanhita, 2023
Section 35 (Sec. 41 of CrPC)—Procedure to be followed for arresting a person without warrant—Explained.
[Para 7 & 8]
Constitution of India, 1950
Article 22(1)—Mandate of article—Requirement of informing a person arrested of grounds of arrest is a mandatory requirement of Article 22(1) of the Constitution of India. [Hon’ble Justice Abhay S. Oka]
[Para 21(a)]
Article 22(1)—Communication of ground of arrest—Mode and method—Information of the grounds of arrest must be provided to the arrested person in such a manner that sufficient knowledge of the basic facts constituting the grounds is imparted and communicated to the arrested person effectively in the language which he understands—Mode and method of communication must be such that the object of the constitutional safeguard is achieved. [Hon’ble Justice Abhay S. Oka]
[Para 21(b)]
Article 22(1)—Compliance with requirements—Burden to prove—When arrested accused alleges non-compliance with the requirements of Article 22(1), the burden will always be on the Investigating Officer/Agency to prove compliance with the requirements of Article 22(1) of the Constitution of India. [Hon’ble Justice Abhay S. Oka]
[Para 21(c)]
Article 22(1)—Non-compliance with requirements—Effect of—Non-compliance with Article 22(1) of the Constitution will be a violation of the fundamental rights of the accused guaranteed by the said Article—Moreover, it will amount to a violation of the right to personal liberty guaranteed by Article 21 of the Constitution—Non-compliance with the requirements of Article 22(1) vitiates the arrest of the accused—Hence, further orders passed by a criminal court of remand are also vitiated—Needless to add that it will not vitiate the investigation, charge sheet and trial—But, at the same time, filing of charge-sheet will not validate a breach of constitutional mandate under Article 22(1) of the Constitution. [Hon’ble Justice Abhay S. Oka]
[Para 21(d)]
Article 22(1)—Compliance with requirements—Duty of Magistrate—When an arrested person is produced before a Judicial Magistrate for remand, it is the duty of the Magistrate to ascertain whether compliance with Article 22(1) and other mandatory safeguards has been made. [Hon’ble Justice Abhay S. Oka]
[Para 21(e)]
Article 22(1)—Violation of article—Power of the court to grant bail—When a violation of Article 22(1) is established, it is the duty of the court to forthwith order the release of the accused—That will be a ground to grant bail even if statutory restrictions on the grant of bail exist—Statutory restrictions do not affect the power of the court to grant bail when the violation of Articles 21 and 22 of the Constitution is established. [Hon’ble Justice Abhay S. Oka]
[Para 21(f)]
Articles 21 & 22(1)—Requirement of communication of grounds of arrest to the person arrested—Shocking treatment given to the appellant by the police—Arrest of appellant was rendered illegal on account of failure to communicate the grounds of arrest to the appellant as mandated by Article 22(1) of the Constitution of India—Appellant was taken to a hospital while he was handcuffed and he was chained to the hospital bed—This itself is a violation of the fundamental right of the appellant under Article 21 of the Constitution of India—Right to live with dignity is a part of the rights guaranteed under Article 21—State Government directed to issue necessary directions to ensure that such illegalities are never committed. [Hon’ble Justice Abhay S. Oka]
[Paras 28 & 29]
Article 22(1) and Section 50A of CrPC (Now Sec. 47 of BNSS)—Requirement of communicating the grounds of arrest in writing is not only to the arrested person, but also to the friends, relatives or such other person as may be disclosed or nominated by the arrested person, so as to make the mandate of Article 22(1) of the Constitution meaningful and effective failing which, such arrest may be rendered illegal. [Hon’ble Justice Nongmeikapam Kotiswar Singh]
[Para 3]