# Mohd. Haroon v. State of U.P. & Ors

- **Citation:** (2025) 12 ILRA 1266
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2025-12-15
- **Case number:** Application U/S 528 BNSS No. 1627 of 2025
- **Bench:** Pramod Kumar Srivastava
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/mohd-haroon-v-state-of-u-p-ors-52807
- **Pages:** 17

## Text

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1266 INDIAN LAW REPORTS ALLAHABAD SERIES
meticulously or determine the likelihood of
conviction at this stage.

32. The First Information report and
the material in support of the allegations,
do constitute a prima facie case against the
Applicant for issuance of summons in view
of the facts, circumstances and reasons
stated herein above.

33. Insofar as the argument of
learned
counsel
for
Applicant
that
impugned summoning order has been
issued without application of mind is
concerned, as the learned counsel for
Applicant has advanced argument on the
merits of case and this Court hereinabove
has found sufficient material so that the
summoning order can be issued coupled
with the fact that at the time of final
hearing
of
the
present
application,
learned counsel for Applicant pressed
that the merits of the case may be gone
into by this Court as such no useful
purpose would be served if the matter is
remanded to the court concerned for
decision afresh (on the ground that the
summoning order is issued without
application of mind) in view of the
findings recorded hereinabove.

34. In view of the facts, circumstances
and reasons hereinabove mentioned, the
present application under Section 482 of
the Code of Criminal Procedure, 1973 lacks
merits and is hereby dismissed.
----------
(2025) 12 ILRA 1266
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 15.12.2025

BEFORE

THE HON'BLE PRAMOD KUMAR
SRIVASTAVA, J.
Application U/S 528 BNSS No. 1627 of 2025

Mohd. Haroon ...Applicant
Versus
State of U.P. & Ors. ...Opposite Parties

ISSUE FOR CONSIDERATION
Whether the arrest and subsequent judicial
remand of applicant were illegal due to noncommunication of grounds of arrest, thereby
violating Article 22(1) of the Constitution and
Section 47 BNSS, and whether such alleged
defect vitiates the custody.

HEADNOTES
Criminal
Law
-
Code
of
Criminal
Procedure, 1973 - Section 50, - Bharatiya
Nagarik Suraksha Sanhita, 2023 - Section
47, 58, 480, - Constitution of India -
Article 21, 22(1), 226- Application U/section
528 BNSS - challenging the arrest and remand -
in a criminal proceeding initiated by the ATS -
offence of attempt to wage war against Govt. of
India - allegation of acting as an agent of
enemy
country,
preparing
fake
insurance
documents,
and
communicating
security
information to Pakistan - arrest made on
21.05.2025, produced before Magistrate within
24
hours
-
investigation
completed
and
chargesheet filed - trial court has taken
cognizance - plea of applicant that, arrest
illegal, grounds not communicated and remand
was mechanical - court finds that, recovery
Memo signed by petitioner contained detailed
factual basis and penal provisions, satisfying
Article 22(1) and Section 47 BNSS, - arrest
within statutory period under Section 58 BNSS, -
remand order validly passed with judicial
application of mind - held - defect in Arrest
Memo is a curable irregularity, not fatal and the
custody was lawful - consequently, the petition
was dismissed as devoid of merit, and the
petitioner was directed to pursue regular bail
under Section 480 BNSS before the competent
court.(Para - 22, 23, 24, 26, 31, 32, 33, 35, 36)
Application Dismissed. (E-11)

CASE LAW CITED
Prabir Purkayastha v. State (NCT of Delhi) 2024
vol. 8 SCC 254, - Pankaj Bansal v. Union of
India (2024 vol. 7 SCC 576), - Vihaan Kumar v.
State of Haryana (2025 vol. 5 SCC 799), -
12 All. Mohd. Haroon Vs. State of U.P. & Ors.
1267
Ashish Kakkar v. State (UT of Chandigarh)
(2025 SCC Online SC 1318), - Anwar Dhebar v.
State of U.P. (2025 SCC Online All 3278), - State
of Karnataka v. Sri Darshan (SC) (citation not
given).

LIST OF ACTS
Code of Criminal Procedure, 1973 - Bharatiya
Nagarik Suraksha Sanhita, 2023 - Constitution
of India.

LIST OF KEYWORDS
Judicial Remand - Substantial Compliance -
Procedural Irregularity - Recovery Memo -
Arrest Memo - National Security - Waging War -
Bail Application - Extraordinary Jurisdiction.

CASE ARISING FROM
Case Crime No. 06/2025 - Police Station - ATS,
Lucknow.

APPEARANCE OF PARTIES
Counsel for Appellant: - Sri Azizullah Khan,
Mohammad Alishah Faruqi, Obaidullah,
Counsel for Respondent: - Sri Shiv Nath Tilhari,
AGA-1.

(Delivered by Hon'ble Pramod Kumar
Srivastava, J.)

1. Heard the learned counsel for the
applicant and Shri Shiv Nath Tilhari,
learned AGA-1 for the State-ATS.

2. This application has been filed
under Section 528 of the Bharatiya Nagarik
Suraksha Sanhita, 2023 (though it is
wrongly transcribed in the memo of
petition as BNS), with the prayer that this
Hon'ble Court may graciously be pleased to
issue a suitable Writ, Order, or Direction,
including a Writ in the nature of certiorari,
quashing the judicial remand order dated
22.05.2025 and subsequent remand orders
of different dates, passed in connection
with Case Crime No. 06/2025, Police
Station-ATS, Lucknow. The petitioner
further seeks a declaration that his arrest is
illegal and ab initio void for being in
blatant
violation
of
the
mandatory
provisions
of
Article
22(1)
of
the
Constitution of India and Section 50 of the
Cr.P.C. / Section 47 of the BNSS.

3. The brief facts of the case are that
the petitioner, Mohd. Haroon, was arrested
in connection with the aforesaid crime.
Learned AGA stated that the petitioner has
made an attempt to wage war against the
Government of India. The prosecution case
is that Mohd. Haroon is an agent of an
enemy country who, at the behest of
Mujammil Husain (posted in Pakistan High
Commission at Delhi), was involved in
preparing fake insurance documents to
secure visas for individuals, for which he
earned a commission. The petitioner had
commercial transactions with Dev Raj,
Surendra, and Atul Chaudhary, from whom
he used to buy scrap material and shared
the profits with Mujammil. The petitioner
was in communication with Mujammil
Hussain
and
is
alleged
to
have
communicated security information to him,
which was then sent to Pakistan.

4. Learned counsel for the petitioner
submits that the petitioner's arrest was
made disregarding the pious provisions of
the Constitution and that his personal
liberty has been curtailed without any valid
judicial verdict or remand order. He
submits that he was not communicated the
grounds of arrest, as held by the Hon'ble
Apex
Court
in
cases
like
Prabir
Purkayastha and Vihaan Kumar. He argues
that the arrest memo is vague and nonspecific, which prevented the accused from
availing
a
remedy
to
protect
his
fundamental rights, thereby rendering the
arrest
illegal,
arbitrary,
and
unconstitutional. He stresses that the
communication of grounds of arrest must
be in specific and clear terms and is not a
1268 INDIAN LAW REPORTS ALLAHABAD SERIES
mere formality, and oral disclosure does
not
constitute
compliance.
He
also
contends that the arrest was carried out in a
mechanical way without the application of
mind by the police and that the learned
Duty Magistrate also passed the remand
order dated 22.05.2025 in a mechanical
manner, making the remand sheet and
subsequent orders illegal.

5. Learned counsel for the appellant
relied on the following judgments:

Prabir Purkayastha vs. State of
(NCT of Delhi); (2024) 8 SCC 254,
Vihaan Kumar vs. State of Haryana &
Another (2025) 5 SCC 799, Ashish
Kakkar v. State (UT of Chandigarh),
2025 SCC OnLine SC 1318 & Anwar
Dhebar v. State of U.P., 2025 SCC
OnLine All 3278.

6. The Learned counsel for the
respondent submits that the petitioner was
called for inquiry by the Police Station-
ATS, Lucknow. During the inquiry, he
stated all the facts. Upon being satisfied
that the petitioner had actively participated
in activities against the Indian Government,
amounting to waging war and endangering
the sovereignty, unity and integrity of
India, the petitioner was arrested. At the
time of arrest, the grounds of arrest were
communicated to him. A detailed Fard
Memo of Recovery was prepared on the
spot, explained to the petitioner, and a copy
thereof was provided to the accused. Thus,
all statutory and constitutional provisions
were complied with, and consequently,
there is no violation of any provision of
law. He submits that the Duty Magistrate
perused the relevant documents and, upon
being satisfied that a prima facie case had
been made out, remanded the petitioner in
custody. He next submits that a thorough
investigation has been conducted, and upon
its conclusion, a charge sheet under
appropriate sections was filed against the
petitioner. The Learned Trial Court has
taken cognizance of the offence. Therefore,
the petition is misconceived and liable to be
dismissed.

7. I have considered the submissions
of learned counsel for the parties and
perused the material available on record.

8. The crux of the petition is that the
non-compliance
with
the
mandatory
provisions contained under Article 22(1) of
the Constitution of India and Section 50 of
the Code of Criminal Procedure, 1973
(Cr.P.C.) (corresponding to Section 47 of
the Bharatiya Nagarik Suraksha Sanhita,
2023
(BNSS))-which
safeguard
the
fundamental right of a person to be
informed of the grounds of arrest "as soon
as may be," and the corresponding statutory
duty
of
the
arresting
officer
to
communicate the same-asserting that this
non-disclosure, coupled with allegations of
pre-arrest detention and a seemingly
cursory remand order, has rendered his
continued detention in judicial custody
perverse and illegal, leading to a direct
infringement of Article 21 (Protection of
Life and Personal Liberty) and making the
initial detention and subsequent remand
orders unsustainable in law; consequently,
this petition requires the examination of the
interplay between Article 21 and Article
22(1) of the Constitution, compelling the
Court to carefully scrutinize the entire
record, including the written submissions
tendered by both parties, the factual matrix
documented in the FIR and the recovery
memo, and the crucial judicial orders
passed, to determine the maintainability
and merits of the petition in the light of the
settled constitutional jurisprudence.
12 All. Mohd. Haroon Vs. State of U.P. & Ors.
1269

9. This petition requires examination
of the interplay between Article 21
(Protection of Life and Personal Liberty)
and Article 22(1) (Right to be informed of
Grounds of Arrest) of the Constitution.

10. I find that Article 22(1) serves as a
mandatory safeguard, a condition precedent
for the exercise of the power of arrest. The
Courts have consistently held that noncompliance with the duty to inform the
person of the grounds of arrest, as soon as
may be, would be an infringement of the
due process clause under Article 21. The
relevant provision of Article 21, Article
22(1) are extracted here-in-below:-

"21. Protection of life and
personal liberty. -No person shall be
deprived of his life or personal liberty
except according to procedure established
by law.

22. Protection against arrest and
detention in certain cases. - (1) No person
who is arrested shall be detained in custody
without being informed, as soon as may be,
of the grounds for such arrest nor shall he
be denied the right to consult, and to be
defended by, a legal practitioner of his
choice."

11. This Court has also considered the
constitutional provisions and the statutory
mandates: Article 21 (Protection of Life
and Personal Liberty) and Article 22(1)
(Right to be informed of Grounds of
Arrest) of the Constitution of India, read
with Section 47 of the Bharatiya Nagarik
Suraksha Sanhita, 2023 (BNSS) (Duty to
inform grounds of arrest) and Section 58
BNSS (Maximum detention of 24 hours).
The violation of any of these four
provisions-Article
21,
Article
22(1),
Section 47, and Section 58-has been
interpreted
to
have
significant
repercussions on the legality of the
detention, potentially transforming a legal
arrest into illegal confinement; however,
based on the record, I find that the mandate
under Section 58 BNSS was fully complied
with, as the petitioner's arrest was recorded
on 21.05.2025 at about 18:50 hours and he
was produced before the Duty Magistrate
on the following date, 22.05.2025, which
was "within the statutory 24-hour period,"
thereby rejecting the allegation of illegal
detention
beyond
24
hours
as
"unsubstantiated
by
the
record";
furthermore, while the petitioner argued a
violation of Section 47 BNSS due to
missing grounds in the arrest memo, I have
found that the constitutional and statutory
requirements were "substantially adhered
to" by providing the petitioner with the
detailed, simultaneously prepared, and
signed Recovery Memo, which contained
the factual basis for the arrest. The relevant
provision of Section 47 and 58 of BNSS
are extracted here-in-below:-

"47. (1) Every police officer or
other person arresting any person without
warrant shall forthwith communicate to
him full particulars of the offence for which
he is arrested or other grounds for such
arrest.

(2) Where a police officer arrests
without warrant any person other than a
person accused of a non-bailable offence,
he shall inform the person arrested that he
is entitled to be released on bail and that he
may arrange for sureties on his behalf.

58. No police officer shall detain
in custody a person arrested without
warrant for a longer period than under all
the circumstances of the case is reasonable,
and such period shall not, in the absence of
1270 INDIAN LAW REPORTS ALLAHABAD SERIES
a special order of a Magistrate under
section 187, exceed twenty-four hours
exclusive of the time necessary for the
journey from the place of arrest to the
Magistrate's
Court,
whether
having
jurisdiction or not.."

12. The Supreme Court in the case of
Pankaj Bansal Vs. Union of India
(Supra) has held that the constitutional
right to be informed of the grounds of
arrest, enshrined in Article 22(1), must be
communicated to the arrested person
advisably
in
writing.
The
relevant
paragraphs 38, 42, 43 and 45 are extracted
here-in-below:-

"38. In this regard, I 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 may be noted that
Section 45 PMLA enables the person
arrested under Section 19 thereof to seek
release on bail but it postulates that unless
the twin conditions prescribed thereunder
are satisfied, such a person would not be
entitled to grant of bail. The twin
conditions set out in the provision are that,
firstly, the court must be satisfied, after
giving an opportunity to the Public
Prosecutor to oppose the application for
release, that there are reasonable grounds
to believe that the arrested person is not
guilty of the offence and, secondly, that he
is not likely to commit any offence while on
bail. To meet this requirement, it would be
essential for the arrested person to be
aware of the grounds on which the
authorised officer arrested him/her under
Section 19 and the basis for the officer's
"reason to believe" that he/she is guilty of
an offence punishable under the 2002 Act.
It is only if the arrested person has
knowledge of these facts that he/she would
be in a position to plead and prove before
the Special Court that there are grounds to
believe that he/she is not guilty of such
offence, so as to avail the relief of bail.
Therefore, communication of the grounds
of arrest, as mandated by Article 22(1) of
the Constitution and Section 19 PMLA, is
meant to serve this higher purpose and
must be given due importance.

42. 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. 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. In the
case on hand, that is the situation insofar
as Basant Bansal is concerned. Though ED
claims that witnesses were present and
certified that the grounds of arrest were
read out and explained to him in Hindi,
that is neither here nor there as he did not
sign the document. Non-compliance in this
regard would entail release of the arrested
person straightaway, as held in V. Senthil
Balaji [V. Senthil Balaji v. State, (2024) 3
SCC 51 : (2024) 2 SCC (Cri) 1] . Such a
precarious situation is easily avoided and
the consequence thereof can be obviated
12 All. Mohd. Haroon Vs. State of U.P. & Ors.
1271
very simply by furnishing the written
grounds of arrest, as recorded by the
authorised officer in terms of Section 19(1)
PMLA, to the arrested person under due
acknowledgment, instead of leaving it to
the debatable ipse dixit of the authorised
officer.

43. 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 to seek release on
bail, if he/she so chooses. In this regard,
the grounds of arrest in V. Senthil Balaji
[V. Senthil Balaji v. State, (2024) 3 SCC 51
: (2024) 2 SCC (Cri) 1] are placed on
record and I find that the same run into as
many as six pages. The grounds of arrest
recorded in the case on hand in relation to
Pankaj Bansal and Basant Bansal have not
been produced before this Court, but it was
contended that they were produced at the
time of remand. However, as already noted
earlier, this did not serve the intended
purpose. Further, in the event their
grounds of arrest were equally voluminous,
it would be well-nigh impossible for either
Pankaj Bansal or Basant Bansal to record
and remember all that they had read or
heard being read out for future recall so as
to avail legal remedies. More so, as a
person who has just been arrested would
not be in a calm and collected frame of
mind and may be utterly incapable of
remembering the contents of the grounds of
arrest read by or read out to him/her. 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) PMLA.

45. On the above analysis, to give
true
meaning
and
purpose
to
the
constitutional and the statutory mandate of
Section 19(1) PMLA of informing the
arrested person of the grounds of arrest, I
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.
The decisions of the Delhi High Court in
Moin
Akhtar
Qureshi
[Moin
Akhtar
Qureshi v. Union of India, 2017 SCC
OnLine Del 12108] and the Bombay High
Court in Chhagan Chandrakant Bhujbal
[Chhagan Chandrakant Bhujbal v. Union
of India, 2016 SCC OnLine Bom 9938 :
(2017) 1 AIR Bom R (Cri) 929] , which
hold to the contrary, do not lay down the
correct law. In the case on hand, the
admitted position is that ED's investigating
officer merely read out or permitted
reading of the grounds of arrest of the
appellants and left it at that, which is also
disputed by the appellants. As this form of
communication is not found to be adequate
to fulfil compliance with the mandate of
Article 22(1) of the Constitution and
Section 19(1) PMLA, I have no hesitation
in holding that their arrest was not in
keeping with the provisions of Section
19(1) PMLA. Further, as already noted
supra, the clandestine conduct of ED in
proceeding against the appellants, by
recording the second ECIR immediately
after they secured interim protection in
relation to the first ECIR, does not
commend acceptance as it reeks of
1272 INDIAN LAW REPORTS ALLAHABAD SERIES
arbitrary exercise of power. In effect, the
arrest
of
the
appellants
and,
in
consequence, their remand to the custody
of ED and, thereafter, to judicial custody,
cannot be sustained."

13.
This
mandate
was
further
reinforced
and
applied
in
Prabir
Purkayastha Vs. State of (NCT of Delhi)
(Supra), where the Supreme Court held
that the failure to communicate the grounds
of arrest in writing is an infringement of a
fundamental right so severe that it vitiates
the entire process of arrest and remand. The
relevant paragraphs 19, 28, 29, 37 and 48
are extracted here in below:-

"19. Resultantly, there is no
doubt in the mind of the court that any
person
arrested
for
allegation
of
commission
of
offences
under
the
provisions of UAPA or for that matter any
other offence(s) 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. The purpose of informing to the
arrested person the grounds of arrest is
salutary and sacrosanct inasmuch as this
information would be the only effective
means for the arrested person to consult his
advocate; oppose the police custody
remand and to seek bail. Any other
interpretation would tantamount to diluting
the sanctity of the fundamental right
guaranteed under Article 22(1) of the
Constitution of India.

28. The language used in Article
22(1) and Article 22(5) of the Constitution
of India regarding the communication of
the grounds is exactly the identical. Neither
of the constitutional provisions require that
the "grounds" of "arrest" or "detention", as
the case may be, must be communicated in
writing.
Thus,
interpretation
to
this
important facet of the fundamental right as
made by the Constitution Bench while
examining the scope of Article 22(5) of the
Constitution of India would ipso facto
apply to Article 22(1) of the Constitution of
India insofar as the requirement to
communicate the grounds of arrest is
concerned.

29. Hence, I 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.

37. The interpretation given by
the learned Single Judge that the grounds
of arrest were conveyed to the accused in
writing
vide
the
arrest
memo
is
unacceptable on the face of the record
because the arrest memo does not indicate
the grounds of arrest being incorporated in
the said document. Column 9 of the arrest
memo (Annexure P-7) which is being
reproduced hereinbelow simply sets out the
"reasons for arrest" which are formal in
nature and can be generally attributed to
any person arrested on accusation of an
offence whereas the "grounds of arrest"
would be personal in nature and specific to
the person arrested.

"9. Reason for arrest
12 All. Mohd. Haroon Vs. State of U.P. & Ors.
1273

(a) Prevent the accused person
from committing any further offence.

(b) For proper investigation of
the offence.

(c) To prevent the accused person
from causing the evidence of the offence to
disappear or tampering with such evidence
in any manner.

(d) To prevent such person from
making any inducement, threat or promise
to any person acquainted with the facts of
the case so as to dissuade him from
disclosing such facts to the court or to the
police officer.

(e) As unless such person is
arrested, his presence in the court
whenever required cannot be ensured."

48. It may be reiterated at the
cost of repetition that there is a significant
difference in the phrase "reasons for
arrest" and "grounds of arrest". The
"reasons for arrest" as indicated in the
arrest memo are purely formal parameters
viz. to prevent the accused person from
committing any further offence; for proper
investigation of the offence; to prevent the
accused person from causing the evidence
of the offence to disappear or tampering
with such evidence in any manner; to
prevent the arrested person for making
inducement, threat or promise to any
person acquainted with the facts of the case
so as to dissuade him from disclosing such
facts to the court or to the investigating
officer. These reasons would commonly
apply to any person arrested on charge of a
crime whereas the "grounds of arrest"
would be required to contain all such
details in hand of the investigating officer
which necessitated the arrest of the
accused. Simultaneously, the grounds of
arrest informed in writing must convey to
the arrested accused all basic facts on
which he was being arrested so as to
provide him an opportunity of defending
himself against custodial remand and to
seek bail. Thus, the "grounds of arrest"
would invariably be personal to the
accused and cannot be equated with the
"reasons of arrest" which are general in
nature."

14. In State of Karnataka Vs. Sri
Darshan (Supra), the Hon'ble Supreme
Court, following the settled legal principle
that substance prevails over form, held that
the judiciary should not elevate form over
substance, meaning thereby that a technical
or procedural infirmity, like an omission in
a document, cannot, by itself, be the sole
basis for declaring a detention illegal if the
accused was, in reality, fully aware of the
reasons for his arrest. The view in Sri
Darshan (Supra) allows a Court to
overlook the technical defect in the Arrest
Memo because a comprehensive, signed
recovery memo fulfilles the substantive
constitutional requirement. The relevant
paragraphs of Sri Darshan (Supra) are
extracted here-in-below:-

"20.1. Delay in furnishing the
grounds of arrest cannot, by itself,
constitute a valid ground for grant of bail.

20.1.1. The learned counsel for
the respondents - accused contended
that the arrest was illegal as the
grounds of arrest were not furnished
immediately
in
writing,
thereby
violating
Article
22
(1)
of
the
Constitution and Section 50 Cr.P.C
(now Section 47 of the Bharatiya
Nagarik
Suraksha
Sanhita).
This
submission, however, is devoid of merit.
1274 INDIAN LAW REPORTS ALLAHABAD SERIES

20.1.2. Article 22(1) of the
Constitution mandates 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, nor shall he
be denied the right to consult, and to be
defended by, a legal practitioner of his
choice". Similarly, Section 50 (1) Cr.P.C.
requires that "every police officer or other
person arresting any person without
warrant shall forthwith communicate to
him full particulars of the offence for which
he is arrested or other grounds for such
arrest.

20.1.3. The constitutional and
statutory framework thus mandates that the
arrested person must be informed of the
grounds of arrest - but neither provision
prescribes a specific form or insists upon
written communication in every case.
Judicial precedents have clarified that
substantial
compliance
with
these
requirements
is
sufficient,
unless
demonstrable prejudice is shown.

20.1.4. In Vihaan Kumar v. State
of Haryana22, it was reiterated that Article
22(1) is satisfied if the accused is made
aware of the arrest grounds in substance,
even if not conveyed in writing. Similarly,
in Kasireddy Upender Reddy v. State of
Andhra Pradesh23, it was observed that
when arrest is made pursuant a warrant,
reading out the warrant amounts to
sufficient compliance. Both these post-
Pankaj Bansal decisions clarify that
written, individualised grounds are not an
inflexible requirement in all circumstances.

20.1.5. While Section 50 Cr.P.C
is mandatory, the consistent judicial
approach has been to adopt a prejudiceoriented test when examining alleged
procedural lapses. The mere absence of
written grounds does not ipso facto render
the arrest illegal, unless it results in
demonstrable prejudice or denial of a fair
opportunity to defend.

20.1.6. The High Court, however,
relied heavily on the alleged procedural
lapse as a determinative factor while
overlooking the gravity of the offence under
Section 302 IPC and the existence of a
prima facie case. It noted, inter alia, that
there was no mention in the remand orders
about service of memo of grounds of arrest
(para 45); the arrest memos were allegedly
template-based and not personalised (para
50); and eyewitnesses had not stated that
they were present at the time of arrest or
had signed the memos (para 48). Relying
on Pankaj Bansal v. Union of India24 and
Prabir Purkayastha v. State (NCT of Delhi)
(supra), it concluded (paras 43, 49 - 50)
that from 03.10.2023 onwards, failure to
serve detailed, written, and individualised
grounds of arrest immediately after arrest
was a violation entitling the accused to
bail.

20.1.7. In the present case, the
arrest memos and remand records clearly
reflect that the respondents were aware of
the reasons for their arrest. They were
legally represented from the outset and
applied for bail shortly after arrest,
evidencing an immediate and informed
understanding of the accusations. No
material has been placed on record to
establish that any prejudice was caused
due to the alleged procedural lapse. In the
absence of demonstrable prejudice, such as
irregularity is, at best, a curable defect and
cannot, by itself, warrant release on bail.

As reiterated above, the High
Court treated it as a determinative factor
while overlooking the gravity of the charge
12 All. Mohd. Haroon Vs. State of U.P. & Ors.
1275
under Section 302 IPC and the existence of
a prima facie case. Its reliance on Pankaj
Bansal
and
Prabir
Purkayastha
is
misplaced, as those decisions turned on
materially different facts and statutory
contexts. The approach adopted here is
inconsistent with the settled principle that
procedural lapses in furnishing grounds of
arrest, absent prejudice, do not ipso facto
render custody illegal or entitle the
accused to bail."

15. I also considered it appropriate to
address the submission advanced on behalf
of the petitioner that the law laid down by
the Hon'ble Apex Court in the case of State
of Karnataka Vs. Sri Darshan (Supra)
was rendered in respect of an offence under
Section 302 IPC. The petitioner contended
that the present case is not of such a
heinous nature, and thus, the same rigorous
standard should not be applied. I do not
agree with the learned counsel for the
petitioner on this suppositions distinction.
The prosecution alleges that the petitioner,
Mohd. Haroon, acted as an "agent of an
enemy country," was involved in preparing
"fake insurance documents to secure visas,"
and "communicated security information"
which was then sent to Pakistan, thus
amounting to waging war and endangering
the sovereignty, unity and integrity of
India. While an offence under Section 302
IPC results in the death or loss of life of a
single person, the offences alleged herein,
which
directly
compromise
national
security and public trust, are of far greater
magnitude and strike at the sovereignty,
unity, and integrity of the nation. Such an
offence is a matter of paramount national
concern
due
to
its
widespread
and
potentially disastrous impact on state
security. Accordingly, the seriousness of
the offence under the BNSS provisions
herein
fully
warrant
the
rigorous
application of the principle that substance
prevails over form as laid down in Sri
Darshan (Supra).

16. The Supreme Court in the case of
Vihaan Kumar Vs. State of Haryana
(Supra) has held that the failure to
communicate the grounds of arrest to the
accused, as mandated under Article 22(1)
and Section 50 Cr.P.C. (or Section 47
BNSS),
is
an
infringement
of
a
fundamental right so severe that it vitiates
the arrest and subsequent custody. The
judgment holds that the illegality of an
arrest
flowing
from
a
constitutional
violation cannot be cured by a subsequent
judicial act, such as a remand order.
However, the said judgment explicitly
distinguishes cases where the accused was
not served with any document whatsoever
containing the grounds of arrest. The
relevant paragraphs 16, 19, 20, 23 and 26.6
are extracted here-in-below.

"16. This Court held that the
language used in Articles 22(1) and 22(5)
regarding communication of the grounds is
identical, and therefore, this Court held
that interpretation of Article 22(5) made by
the Constitution Bench in Harikisan v.
State of Maharashtra [Harikisan v. State of
Maharashtra, 1962 SCC OnLine SC 117] ,
shall ipso facto apply to Article 22(1) of the
Constitution of India insofar as the
requirement to communicate the ground of
arrest is concerned. I may also note here
that in para 21, in Prabir Purkayastha
[Prabir Purkayastha v. State (NCT of
Delhi), (2024) 8 SCC 254 : (2024) 3 SCC
(Cri) 573] , this Court also dealt with the
effect of violation of Article 22(1) by
holding that any infringement of this
fundamental right would vitiate the process
of arrest and remand. Para 21 reads thus :
(Prabir
Purkayastha
case
[Prabir
1276 INDIAN LAW REPORTS ALLAHABAD SERIES
Purkayastha v. State (NCT of Delhi),
(2024) 8 SCC 254 : (2024) 3 SCC (Cri)
573] , SCC p. 276)

"21. The right to be informed
about the grounds of arrest flows from
Article 22(1) of the Constitution of India
and any infringement of this fundamental
right would vitiate the process of arrest and
remand. Mere fact that a charge-sheet 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 remand to the accused."

 (emphasis supplied)

19. Thus, the requirement of
informing the person arrested of the
grounds of arrest is not a formality but a
mandatory
constitutional
requirement.
Article 22 is included in Part III of the
Constitution
under
the
heading
of
Fundamental Rights. Thus, it is the
fundamental right of every person arrested
and detained in custody to be informed of
the grounds of arrest as soon as possible. If
the grounds of arrest are not informed as
soon as may be after the arrest, it would
amount to a violation of the fundamental
right of the arrestee guaranteed under
Article 22(1). It will also amount to
depriving the arrestee of his liberty. The
reason is that, as provided in Article 21, no
person can be deprived of his liberty except
in
accordance
with
the
procedure
established
by
law.
The
procedure
established by law also includes what is
provided in Article 22(1). Therefore, when
a person is arrested without a warrant, and
the grounds of arrest are not informed to
him, as soon as may be, after the arrest, it
will
amount
to
a
violation
of his
fundamental right guaranteed under Article
21 as well. In a given case, if the mandate
of Article 22 is not followed while arresting
a person or after arresting a person, it will
also violate fundamental right to liberty
guaranteed under Article 21, and the arrest
will be rendered illegal. On the failure to
comply with the requirement of informing
grounds of arrest as soon as may be after
the arrest, the arrest is vitiated. Once the
arrest is held to be vitiated, the person
arrested cannot remain in custody even for
a second.

20. I have already referred to
what is held in paras 42 and 43 of the
decision in Pankaj Bansal [Pankaj Bansal
v. Union of India, (2024) 7 SCC 576 :
(2024) 3 SCC (Cri) 450] . This Court has
suggested that the proper and ideal course
of communicating the grounds of arrest is
to provide grounds of arrest in writing.
Obviously,
before
a
police
officer
communicates the grounds of arrest, the
grounds of arrest have to be formulated.
Therefore, there is no harm if the grounds
of arrest are communicated in writing.
Although there is no requirement to
communicate the grounds of arrest in
writing, what is stated in paras 42 and 43
of the decision in Pankaj Bansal [Pankaj
Bansal v. Union of India, (2024) 7 SCC
576 : (2024) 3 SCC (Cri) 450] are
suggestions that merit consideration. I are
aware that in every case, it may not be
practicable to implement what is suggested.
If the course, as suggested, is followed, the
controversy about the non-compliance will
not arise at all. The police have to balance
the rights of a person arrested with the
interests of the society. Therefore, the
police should always scrupulously comply
with the requirements of Article 22.

23. In the present case, the first
respondent relied upon an entry in the case
12 All. Mohd. Haroon Vs. State of U.P. & Ors.
1277
diary allegedly made at 6.10 p.m. on 10-62024, which records that the appellant was
arrested after informing him of the grounds
of arrest. For the reasons which will follow
hereafter, I are rejecting the argument
made by the first respondent. If the police
want to prove communication of the
grounds of arrest only based on a diary
entry, it is necessary to incorporate those
grounds of arrest in the diary entry or any
other document. The grounds of arrest must
exist before the same are informed.
Therefore, in a given case, even assuming
that the case of the police regarding
requirements of Article 22(1) of the
Constitution is to be accepted based on an
entry in the case diary, there must be a
contemporaneous record, which records
what the grounds of arrest were. When an
arrestee pleads before a court that grounds
of arrest were not communicated, the
burden to prove the compliance of Article
22(1) is on the police.

26.6. 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.
The
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."

17. In view of the above, this Court is
of the considered opinion that the factual
matrix of the present case is clearly
distinguishable
from
the
extreme
procedural violations found in Vihaan
Kumar (Supra) and Prabir Purkayastha
(Supra). In the present matter, the
Recovery
Memo,
prepared
contemporaneously and signed by the
Petitioner, explicitly detailed the facts of
the offence, including his involvement in
preparing fake insurance documents to
secure visas and the recovery of items
linked to the communication of security
information to an enemy agent, along with
listing the corresponding penal sections.
This document served as a direct, written,
and effective communication of the factual
and legal grounds of arrest, thereby
fulfilling the substantive constitutional
requirement of Article 22(1). Applying the
authoritative ratio of Sri Darshan (Supra)
to these established facts, the technical
omission of grounds in the separate Arrest
Memo is a curable irregularity, and not a
fatal constitutional defect.