New Delhi: The arrest of NewsClick founder and editor-in-chief Prabir Purkayastha was a blatant attempt to circumvent the due process of law, depriving him of the opportunity to avail his lawyer’s services to oppose police custody remand, defend himself and seek bail, the Supreme Court said Wednesday.
This and more procedural lapses by the Delhi Police pushed the Supreme Court to declare Purkayastha’s arrest as illegal.
A bench of Justices B.R. Gavai and Sandeep Mehta said the police should have communicated to Purkayastha the grounds of his arrest, which, it added, was his constitutional right under Article 22 (1).
The arrest, the bench said, was made in a “clandestine manner”.
Arrested 3 October last year under the anti-terror law – the Unlawful Activities (Prevention) Act (UAPA) – Purkayastha was remanded in police custody a day later.
He legally challenged his arrest and subsequent police remand contending that he was not informed as to why the Delhi Police’s Special Cell took him into custody. Moreover, he was not given an opportunity to reach his lawyer during the remand hearing.
After the Delhi High Court rejected his plea 13 October, the senior journalist then moved the apex court against the UAPA case.
“The accused having engaged an advocate to defend himself, there was no rhyme or reason as to why, information about the proposed remand application was not sent in advance to the advocate engaged by the appellant,” the judges observed in the order, overturning the HC decision.
Significantly, the judgement made it mandatory for prosecuting agencies, investigating UAPA cases, to provide grounds of arrest to the accused before making the arrests.
The judges framed this principle on the basis of a 2023 judgement in the Pankaj Bansal vs Union of India case which held that those arrested under the anti-money laundering law, the Prevention of Money Laundering Act (PMLA), should be told in advance about the grounds of their arrest. This communication, it added, must be in writing.
Justices Gavai and Mehta dismissed the police’s contention that the ratio decidendi (reason for deciding) laid down in the Pankaj Bansal judgement cannot be applied to Purkayastha’s case as the present case is a UAPA matter.
The bench said the provision regarding communication of the grounds of arrest contained in section 43B(1) of the UAPA – which was interpreted in the Pankaj Bansal judgement – is verbatim as that of section 19(1) of the PMLA. Hence, the aspect of informing the arrested person in writing “has to be applied pari passu (equal footing)” in UAPA cases, it added.
The judges emphasised upon the safeguard enumerated in Article 22(1) of the Constitution to hold that a person arrested for any offence has a “fundamental and a statutory right to be informed” in writing about the grounds of arrest.
A copy of such written grounds has to be furnished as a matter of course and without exception at the earliest, the bench asserted. The purpose for furnishing this information is to enable the arrested person to consult advocate, oppose police custody remand and seek bail.
It is “salutary and sacrosanct,” because it is the only effective means to maintain the sanctity of the fundamental right guaranteed under Article 22(1), the bench said.
Attempts made in the past to “dilute” or “encroach” upon Article 22(1) have been frowned upon by the top court.
Taking into account the judgements delivered in connection with this facet of constitutional right, the bench “strictly” evaluated the procedure that was followed to arrest Purukayastha.
On a detailed analysis of the issues at hand, the court said : “…there is no hesitation in the mind of the Court to reach to a conclusion that the copy of the remand application in the purported exercise of communication of the grounds of arrest in writing was not provided to the accused appellant or his counsel before passing of the order of remand dated 4th October, 2023 which vitiates the arrest and subsequent remand of the appellant.”
Ordering Purkayastha’s release, the top court said though it would have preferred to release him without furnishing bonds or security, he was directed to do so given the police chargesheet filed against him.
This means that Purkayastha will continue to face trial in the funding case and can possibly be arrested by the police upon their exercising powers as per the due procedure of law.
The Special Cell lodged the UAPA FIR against Purkayastha on 17 August last year. The anti-terror law was in addition to various sections drawn from IPC. He was arrested on the evening of 3 October and was sent to police custody for seven days on 4 October at 6am in the morning.
According to the FIR, a large amount of funds to NewsClick allegedly came from China to “disrupt the sovereignty of India” and cause disaffection against the country. It also alleged Purkayastha conspired with a group — People’s Alliance for Democracy and Secularism (PADS) — to sabotage the electoral process during the 2019 Lok Sabha polls.
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Points raised by accused
Purkayastha argued that the remand order was manipulated as it recorded the presence of his lawyer during the hearing of the police application, whereas there was none. The lawyer’s appearance was noted after the judge spoke to his lawyer over the phone, he added.
Appearing for the NewsClick founder, senior advocate Kapil Sibal pointed to multiple violations of the law made in his arrest.
Sibal said the FIR under the UAPA was similar in content to the one that accused him of non-compliance of FDI regulations, apart from other laws. By treating this FIR as a predicate offence, the Enforcement Directorate (ED) registered a case against him under PMLA, he added.
NewsClick has challenged the ED case before the Delhi High Court, which in June 2021 stayed the proceedings and granted Purkayastha protection from arrest.
The UAPA FIR, Sibal pointed out, was not given to his client until arrest and remand.
Citing the Pankaj Bansal judgement as well as Article 22(1), Sibal said Purukayastha was not informed, either orally or in writing, about the grounds of arrest. He pointed out that his client’s lawyer was informed officially about the arrest an hour after Purukayastha was remanded and that, too, over WhatsApp.
Additional Solicitor General (ASG) S.V. Raju opposed Purukayastha’s arguments and said the arresting officer could not be expected to ensure compliance of the Pankaj Bansal judgement as the FIR copy came into public domain hours after the arrest and remand were made.
Moreover, there were significant differences in the language employed in Section 19 of the PMLA and Section 43A and 43B of the UAPA and, thus, the law laid down in Pankaj Bansal(supra) cannot aid the accused, Raju, appearing for the police, said.
As for Article 22(1) argument, he said the provision does not mandate that the grounds of arrest or detention should be conveyed in writing to the accused.
He rejected the charge that Purukayastha’s lawyer was not informed about the arrest, saying the advocate transmitted a written objection against the plea for police custody over WhatsApp through a head constable. This, he said, was taken note by the remand judge in the order.
Golden rule applied
The main bone of contention that arose for the court’s consideration was whether the arrest memo served to Purukayastha contained the column regarding grounds of arrest.
In this regard, the top court held that the computerised form, which was presented as the arrest memo, indicated the formal ‘reasons’ for which the accused was being arrested.
“Reasons for arrest’ is different from ‘grounds of arrest,” it said. The “reasons for arrest” as indicated in the arrest memo are purely formal parameters such as to prevent the accused person from committing any further offence; for proper investigation of the offence; to prevent the accused from causing evidence to disappear or tampering in any manner amongst others, it added.
However, ‘grounds of arrest’ would invariably be personal to the accused and cannot be equated with the ‘reasons of arrest’ which are general in nature, the court said.
The bench compared Sections 19(1) of PMLA and 43B(1) of UAPA and applied the “golden rule of interpretation” — which allows modifying the meaning of a law to avoid absurd results — to borrow the law laid down in the Pankaj Bansal case.
“We find that the provision regarding the communication of the grounds of arrest to a person arrested contained in Section 43B(1) of the UAPA is verbatim the same as that in Section 19(1) of the PMLA,” it said, dismissing Delhi Police’s contention that there are variations between the two sections.
The requirement to communicate the grounds of arrest is the same in both the statutes, it said, adding the two find their source in the constitutional safeguard provided in Article 22(1) from where flowed the right to be informed.
Therefore, it said, any infringement of this right would vitiate the process of arrest and remand.
On the ASG’s contention that Article 22(1) and 22(5), which deals with preventive detention, don’t explicitly require that grounds of arrest should be made in writing, the court said several SC judgements have propounded that it is imperative and essential to provide an opportunity to the detainee to make an effective representation against his/her detention.
“It has been the consistent view of this Court that the grounds on which the liberty of a citizen is curtailed, must be communicated in writing so as to enable him to seek remedial measures against the deprivation of liberty,” the order said.
The judges further scrutinised the sequence of events and noted that the FIR against Purkayastha was never made public as it was not uploaded on the website by the investigating agency. Admittedly, the copy of the FIR was not provided despite an application having been made till he was sent to police custody, the bench said.
“…..hence, till the time of being deprived of liberty, no communication had been made to the appellant regarding the grounds on which he had been arrested,” it said.
Purkayastha was arrested on 3 October post 5 in the evening, it said, adding that the Delhi Police had a window till 5:44 pm on 4 October. But, he was produced before the remand judge early morning the next day.
Before doing this, the court said, the police did not inform his lawyer, who a day earlier visited the police station when Purkayastha was taken there. The advocate left his mobile number with the investigating officer and yet he was not told about the production before the remand judge, it observed.
Rather, the police summoned a remand advocate unknown to Purkayastha. This, the court said, was done “purportedly to provide legal assistance to the appellant as required under Article 22(1).”
“Apparently, this entire exercise was done in a clandestine manner,” it added.
When Purkayastha objected to the appearance of the remand counsel, it was only then that his lawyer was called up and his presence was noted in the remand order. However, as per the court records, by then the police custody order was passed.
The apex court further said though the remand order indicated the appearance of Purkayastha’s lawyer, the line was inserted subsequently, after it was dictated. This, it said, was clear as the line’s script was much finer as compared to the remaining part of the order.
(Edited by Tony Rai)