Bombay HC’s larger bench to clear ‘total confusion’ on arrest procedure issues, need for communicating grounds in writing

It said that there was a ‘total confusion’ and ‘lack of clarity’ in the minds of the investigating agency on the issue, as arrested accused are approaching various courts seeking release on bail citing that grounds of arrest were not conveyed to them in writing and other arrest procedures were not complied with.

A division bench of Justices Sarang V Kotwal and Shriram M Modak passed a verdict on a clutch of petitions seeking release of the accused persons alleging violation of provisions of Section 50 of the Code of Criminal Procedure seeking release due to ‘illegal arrest.’

“There is a lack of clarity even in respect of the forums, which can grant such a relief. In some cases, this has given rise to unhealthy practices of choosing a forum for the same relief. The same issues, simultaneously, are being contested before the different forums and, therefore, there is a serious possibility of conflict of decisions by different courts across the state,” the court noted.

The bench said there is a “serious possibility” of conflict of decisions by different courts across the state.
“In some of the cases, due to lack of awareness on the part of the investigating agencies, the accused are claiming benefits even in the most serious or heinous crimes like, rape, murder along with offences under the POCSO Act, MCOC Act and NDPS Act,” said the bench.

Therefore, Justice Kotwal said, there was a “need to strike a balance between the rights of the victims and those of accused” and the issues framed by it required ‘serious consideration’ by a larger bench.

The court also referred to an issue of whether the grounds of arrest be furnished to an individual at the time of arrest or any time before considering the first remand application filed by the probing agency.

The other issues include whether the court will have discretion, depending on the gravity of the offence or circumstances in which the accused is arrested. The larger bench will also decide before which forum the arrested person can raise his/her grievance and seek release for non-compliance by the probing agency.

Another issue referred is whether in all cases, the notice of appearance under Section 41A of the Code of Criminal Procedure is required to be issued by the investigating officer before arrest and if the same was required when the offence was punishable for upto seven years of imprisonment.

The court opined that apart from the issues related to communication of grounds of arrest, “some clear and definite guidelines are required to the magistrates and investigating agencies to follow procedures of giving remand reports to the arrested person sufficiently in advance.”

The court asked its registry to place the matter before the Chief Justice to constitute a larger bench at earliest as the issue involved a large number of arrested persons.