While declaring the remand Order of Newsclick founder Prabir Purkayastha illegal, the Supreme Court has held that the provisions on the ground of arrest either under the Prevention of Money Laundering Act or the Unlawful Activities (Prevention) Act have the same constitutional source, i.e., Article 22(1) and must thus be uniformly construed.
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TODAY, a Supreme Court Bench of Justices B.R. Gavai and Sandeep Mehta held that the arrest of Newsclick founder-editor Prabir Purkayastha is "invalid in the eyes of the law". Therefore, the court has "quashed" and "set aside" the arrest and remand Order which kept him in police custody.
A first information report (FIR no. 224/2023) was lodged against Purkayastha along with the head of human resource of Newsclick, Amit Chakraborty, on August 17, 2023 by Delhi police. This was pursuant to extensive raids carried out by the police on the office premises of Newsclick and several of its employees and regular contributors.
Under the FIR, charges under Sections 13 (punishment for unlawful activities), 16 (punishment for terrorist act), 17 (punishment for raising funds for terrorist act), 18 (punishment for conspiracy) and 22C (punishment for offences by companies, societies or trusts) of the Unlawful Activities (Prevention) Act, 1967 (UAPA) and Section 153A (promoting enmity between different groups on grounds of religion, race, place of birth, residence) read with Section 120B (punishment for criminal conspiracy) of the Indian Penal Code were levelled against them for purportedly carrying "Chinese propaganda" on the Newclick website.
The investigation was ostensibly triggered by a New York Times piece published on August 5, which alleged that Newsclick received funding from American billionaire Neville Roy Singham and "sprinkled its coverage with Chinese government talking points."
“A first information report was lodged against Purkayastha along with the head of human resource of Newsclick, Amit Chakraborty, on August 17, 2023 by Delhi police.
Singham was alleged to be connected with the Chinese government.
Numerous documents and digital devices belonging to Newsclick, Purkayastha and other employees and contributors were seized during the search and seizure. Thereafter, Purkayastha and Chakraborty were arrested on October 3, 2023. Chakraborty subsequently turned approver in the case.
A remand Order was passed against Purkayastha on October 4, 2023 by a special judge at the Patiala House court for seven days of police custody.
The Order was challenged by Purkayastha before the Delhi High Court on the grounds that the arrest was illegal and a gross violation of his fundamental rights under Articles 21 (protection of life and personal liberty) and 22(1) & (5) (right to be informed of grounds of arrest and right to be represented by a legal practitioner) of the Constitution.
The petition prayed for Purkayastha's immediate released from custody.
However, on October 13, 2023, a single judge of the Delhi High Court dismissed the petition.
Thereafter, Purkayastha challenged the dismissal before the Supreme Court.
During the hearing at the Supreme Court, the counsel for Purkayastha, senior advocate Kapil Sibal, informed the court that FIR no. 224/2023 is nothing but identical to the earlier FIR no. 116/2020.
FIR no. 116 was registered under Sections 3 and 4 of the Prevention of Money Laundering Act, 2002 (PMLA) on alleged violation of the foreign direct investment regulations and other laws. A copy of FIR No. 116 was not given to the appellant. In this FIR, the Delhi High Court had granted protection against arrest.
In the present case, a copy of FIR no. 224 was not given to him initially before it was sought through the Delhi High Court. Through an Order dated October 5, 2023, a copy of the FIR was finally provided to Purkayastha.
Sibal claimed that the FIR was registered purely on "conjectures and surmises" without any substances. The contents of the FIR were provided at a much later stage to the appellant and it discloses a purely fictional story without any fundamental facts or materials warranting registration of the FIR.
“The investigation was ostensibly triggered by a New York Times piece published on August 5, which alleged that Newsclick received funding from American billionaire Neville Roy Singham and "sprinkled its coverage with Chinese government talking points."
As per Sibal, the denial of the copy of FIR until his arrest and remand is a complete violation of Articles 20 (protection in respect of conviction for offences), 21 and 22 of the Constitution.
Sibal also argued that the grounds of arrest were not communicated to the appellant either orally or in writing. This is a gross violation of Article 22(1) of the Constitution and Section 50 (person arrested to be informed of grounds of arrest and of right to bail) of the Code of Criminal Procedure, 1973 (CrPC).
Sibal relied heavily on Pankaj Bansal versus Union of India and Others (2023). In this judgment, interpreting Section 19(1) of the Prevention of Money Laundering Act, 2002, the Supreme Court had held that if the grounds of arrest are not furnished to the accused person at the time of his arrest and before remanding him to police custody, the continued custody of the accused is rendered grossly illegal and nullity in the eyes of law. This is because it is hit by the mandate of Article 22(1) of the Constitution.
The court had observed: "In this regard, we may note that Article 22(1) of the Constitution provides, inter alia, that no person who is arrested shall be detained in custody without being informed, as soon as may be, of the grounds for such arrest. This being the fundamental right guaranteed to the arrested person, the mode of conveying information of the grounds of arrest must necessarily be meaningful so as to serve the intended purpose."
It had further held: "That being so, there is no valid reason as to why a copy of such written grounds of arrest should not be furnished to the arrested person as a matter of course and without exception.
Also read: Newsclick case: Delhi High Court questions remand Order for not mentioning grounds of arrest
"There are two primary reasons as to why this would be the advisable course of action to be followed as a matter of principle. Firstly, in the event such grounds of arrest are orally read out to the arrested person or read by such person with nothing further and this fact is disputed in a given case, it may boil down to the word of the arrested person against the word of the authorised officer as to whether or not there is due and proper compliance in this regard.
"The second reason as to why this would be the proper course to adopt is the constitutional objective underlying such information being given to the arrested person, conveyance of this information is not only to apprise the arrested person of why he/she is being arrested but also to enable such person to seek legal counsel and, thereafter, present a case before the court under Section 45 [of the PMLA] to seek release on bail, if he/she so chooses."
"The very purpose of this constitutional and statutory protection would be rendered nugatory by permitting the authorities concerned to merely read out or permit reading of the grounds of arrest, irrespective of their length and detail, and claim due compliance with the constitutional requirement under Article 22(1) and the statutory mandate under Section 19(1) of the Act of 2002," the court had averred.
The court had particularly noted that the grounds of arrest recorded by the authorised officer in terms of Section 19(1) of the PMLA would be "personal to a person who is arrested". Therefore, there is no risk that the sanctity and integrity of investigation would be compromised.
“Numerous documents and digital devices belonging to Newsclick, Purkayastha and other employees and contributors were seized during the search and seizure.
On the basis of the above analysis, the court in Pankaj Bansal had held: "To give true meaning and purpose to the constitutional and the statutory mandate of Section 19(1) of the Act of 2002 of informing the arrested person of the grounds of arrest, we hold that it would be necessary, henceforth, that a copy of such written grounds of arrest is furnished to the arrested person as a matter of course and without exception."
Arguing that Section 19 of the PMLA is pari materia to Section 43B(1) (procedure of arrest, seizure, etc) of the UAPA, Sibal challenged the October 4 remand Order, contending that the investigating officer kept the appellant confined overnight without conveying the grounds of arrest to him.
Sibal also alleged that in order to clandestinely procure police custody of the appellant, the investigating officer presented the appellant at the residence of the remand judge before 6 a.m. on October 4, 2023 by informing a remand advocate Umakant Kataria.
Sibal alleged that Kataria had never been engaged by the appellant to plead his cause. It was exactly at 6 a.m. that the judge remanded Purkayastha to police custody.
Sibal told the court that the counsel for the appellant, Arshdeep Khurana, was made aware of the remand Order by a WhatsApp message at 7:07 a.m on October 4, 2023. He also stated that the Order was subsequently modified to insert lines that the appellant's counsel was heard on the application for remand.
The Pankaj Bansal judgment was pronounced a day before a remand Order was issued against Purkayastha. As per Sibal, the law laid down in Pankaj Bansal is fully applicable to the present case.
S.V. Raju, Additional Solicitor General of India, representing the National Capital Territory of Delhi, vehemently and fervently opposed this argument made by Sibal. Raju contended that the reasoning employed in Pankaj Bansal cannot come to the rescue of the appellant as the language employed in Section 19 of the PMLA is different from Sections 43A (power of arrest, search, etc) and 43B of the UAPA.
As per Raju, Pankaj Bansal judgment was not applicable because it was uploaded on the website for the Supreme Court in the late hours of October 4 and by then, the remand Order against Purkayastha had already been issued.
Sibal told the court that the judgment in Pankaj Bansal would be applied in the present case despite the Supreme Court in Ram Kishor Arora versus Directorate of Enforcement (2023) interpreting that the Pankaj Bansal judgment would have a prospective effect.
In Ram Kishor, the issue was related to Section 19 of PMLA and it was contended that Pankaj Bansal must be given retrospective effect. However, the court clarified that the judgment will only have a prospective effect.
Raju opposed the timeline of the remand Order as presented by Sibal. As per Raju, the accused was remanded to the police custody after 7 a.m.
Further, Raju told the court that there is nothing in Article 22(1) and 22(5) of the Constitution which mandates that the grounds of arrest or detention should be conveyed in writing to the accused person.
He stated that the right under Article 22(1) of the Constitution to consult and be defended by a legal practitioner was complied with in letter and spirit because a relative of the appellant was informed before producing the appellant before the remand judge. The relative had informed Khurana about the remand.
“The court had particularly noted that the grounds of arrest recorded by the authorised officer in terms of Section 19(1) of the PMLA would be "personal to a person who is arrested".
Raju, elaborating this point, stated that Khurana had send written objections against the prayer for police remand over WhatsApp through the head constable and the remand judge had taken note of the said objections. Therefore, it cannot be said that the remand Order was obtained illegally.
Also read: In a strongly-worded judgment, SC comes down heavily on "arbitrary exercise of power" by ED
Lastly, he argued that since the investigation has been completed and the chargesheet filed, illegality, if any, stands cured; and the presumption regarding the correctness of acts performed in the discharge of judicial functions must be upheld.
The court first dealt with whether there is a significant difference between Section 19 of the PMLA and Section 43B of the UAPA.
It has held that there is "no significant difference in the language employed" in both section for the court to take a view that the interpretation of the phrase 'inform him of the grounds for such arrest' made in Pankaj Bansal would not be extended to an accused person under the UAPA.
The court has rejected the argument of Raju that there are differences in the provisions under the PMLA and the UAPA and stated that the provisions which lay down a very important constitutional safeguard to a person arrested on charges of committing an offence under the PMLA or the UAPA have to be uniformly construed and applied.
In this regard, the court has said: "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. As a matter of fact, both the provisions find their source in the constitutional safeguard provided under Article 22(1) of the Constitution of India."
Further, the court has pointed out that there is no doubt that the criminal jurisprudence is clear that any person arrested under the UAPA or for any other offence has a "fundamental and a statutory right to be informed about the grounds of arrest in writing and a copy of such written grounds of arrest have to be furnished to the arrested person as a matter of course and without exception at the earliest."
“Sibal alleged that Kataria had never been engaged by the appellant to plead his cause. It was exactly at 6 a.m. on October 4, 2023 that the judge remanded Purkayastha to police custody.
It has clarified that the purpose of informing the arrested person on the grounds of arrest is 'salutary' and 'sacrosanct' and would only be effective if the arrested person can consult his advocate, oppose the police custody and seek bail.
In this regard, the court has concluded: "Any other interpretation would be tantamount to diluting the sanctity of the fundamental right guaranteed under Article 22(1) of the Constitution of India."
It has held that since the right to be informed about the grounds of arrest flows from Article 22(1), any infringement of the right would vitiate the process of arrest and remand.
The argument presented by Raju, that illegality, if any, is cured because the chargesheet has been filed has not been accepted by the court.
In this regard, the court has held: "[The] mere fact [that] a chargesheet has been filed in the matter would not validate the illegality and the unconstitutionality committed at the time of arresting the accused and the grant of initial police custody of the accused."
Also read: Supreme Court holds written communication of grounds of arrest not necessary in PMLA cases
The court has also rejected the argument of Raju that in cases of preventive detention, Article 22 should not require that the grounds on which the Order of detention has been passed should be committed in writing.
Relying on Harikisan versus State of Maharashtra and Ors (1962), the court has held that it is mandatory to communicate the grounds of arrest or detention in writing to the accused as a constitutional mandate under Articles 22(1) &(5).
In Hariksan, the court had examined the constitutional scheme of Article 22(5). It had held: "[C]lause (5) of Article 22 requires that the grounds of detention should be made available to the detenue as soon as may be, and that the earliest opportunity of making a representation against the Order should also be afforded to him.
“As per Raju, Pankaj Bansal judgment was not applicable because it was uploaded on the website for the Supreme Court in the late hours of October 4 and by then, the remand Order against Purkayastha had already been issued.
"In order that the detenue should have that opportunity, it is not sufficient that he has been physically delivered the means of knowledge with which to make his representation. In order that the detenue should be in a position effectively to make his representation against the Order, he should have knowledge of the grounds of detention, which are in the nature of the charge against him setting out the kinds of prejudicial acts which the authorities attribute to him.
"Communication, in this context, must, therefore, mean imparting to the detenue sufficient knowledge of all the grounds on which the Order of detention is based."
It had further added: "In this case, the grounds are several, and are based on numerous speeches said to have been made by the appellant himself on different occasions and different dates.
"Naturally, therefore, any oral translation or explanation given by the police officer serving those on the detenue would not amount to communication, in this context, must mean bringing home to the detenue effective knowledge of the facts and circumstances on which the Order of detention is based."
In the present case, the court has also relied on Lallubhai Jogibhai Patel versus Union of India and Ors (1981), in which the court held that the grounds of detention must be communicated to the detenue in writing in a language which he understands. If the grounds are verbally explained, the constitutional mandate of Article 22(5) is violated.
On the arrest and remand, the court has found that the entire exercise was done in a 'clandestine' manner. It has said: "[It] was nothing but a blatant attempt to circumvent the due process of law; to confine the accused to police custody without informing him the grounds on which he has been arrested; deprive the accused of the opportunity to avail the service of the legal practitioner of his choice so as to oppose the prayer for police custody remand, seek bail and also to mislead the court."
“The Supreme Court has clarified that the purpose of informing the arrested person on the grounds of arrest is 'salutary' and 'sacrosanct' and would only be effective if the arrested person can consult his advocate, oppose the police custody and seek bail.
None of the claims on the timeline of arrest and remand made by Raju have been accepted by the court.
Instead, the court has accepted the argument of Sibal that the remand Order was subsequently edited to insert lines that the appellant's counsel was heard before the remand was granted.
It has held: "It is quite possible that the learned remand judge may have heard the learned counsel for the appellant after signing the remand Order and thus, these lines were inserted later without intending any harm or mal intention but the fact remains that the Order of remand had already been passed at 6:00 a.m. and hence, the subsequent opportunity of hearing, if any, provided to the counsel was nothing but an exercise in futility."
Particularly on the grounds of arrest, the court has found that the arrest memo contained the 'reasons for arrest' which are general as opposed to the 'grounds of arrest' which are personal and specific to a person.
Therefore, in the present case, the court has concluded: "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."
Click here to read the order.