Sanchayita Lahkar

The High Court of Delhi, Single Bench of Justice Anup Jairam Bhambhani, set aside the cancellation of bail in a case concerning alleged facilitation of fraudulent emigration by an Indian national. The judgment reinstated the bail of the petitioner, originally granted by the Additional Chief Metropolitan Magistrate (ACMM) and later cancelled by the Sessions Court.

The Court observed procedural irregularities in the service of notice under Section 41-A Cr.P.C. and non-compliance with the constitutional requirement of providing written grounds of arrest. As a result, it held that the petitioner was entitled to continue on bail as earlier granted.

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The petitioner, Vikas Chawla @ Vicky, sought quashing of the order dated 06.06.2024, whereby the learned Additional Sessions Judge, Patiala House Courts, cancelled the regular bail earlier granted by the ACMM on 28.03.2024. The case originates from FIR No. 200/2024 dated 13.03.2024 under Sections 420, 468, and 471 IPC, registered at P.S. I.G.I. Airport, New Delhi.

The prosecution alleged that the petitioner facilitated the emigration of an Afghan national to Spain using fraudulently procured Indian identification documents, including a passport, Aadhaar card, and PAN card, in return for financial consideration. Initially, the FIR named only one accused, Arjeet Singh.

Following summonses under Section 41-A Cr.P.C. on 16.03.2024 and 19.03.2024, the petitioner appeared before the investigating officer on 20.03.2024 and was arrested the same day. The police filed an application seeking police custody, while the petitioner sought bail. On 21.03.2024, the Magistrate declined the police custody and granted interim bail, later made absolute on 28.03.2024.

The State challenged both the 21.03.2024 and 28.03.2024 orders through a Criminal Revision Petition (No. 197/2024), which was allowed on 06.06.2024, cancelling the petitioner’s bail and authorising re-arrest.

The petitioner, through Senior Advocate Ms. Rebecca M. John, raised four principal contentions:

1. The revision petition filed before the Sessions Court was not maintainable as the impugned orders were interlocutory in nature and barred under Section 397(2) Cr.P.C.

2. The notice under Section 41-A Cr.P.C. was not served in compliance with the guidelines laid down in Amandeep Singh Johar v. State (NCT of Delhi) and Standing Order No. 109/2020.

3. The petitioner was not served with written grounds of arrest as mandated by Prabir Purkayastha v. State (NCT of Delhi).

4. The petitioner was not produced before the Magistrate within 24 hours of arrest, violating Section 57 Cr.P.C.

In response, the learned Additional Solicitor General Mr. Sanjay Jain contended that:

• The revision petition was maintainable since the order denying police custody was final in nature.

• Notice under Section 41-A was duly served using computer-generated copies.

• Grounds of arrest were effectively communicated through the remand application.

• The petitioner was arrested at 11:30 p.m. on 20.03.2024 and produced at 4:30 p.m. on 21.03.2024, within the 24-hour limit.

On the question of maintainability of the revision petition, the Court examined precedents, notably Usmanbhai Dawoodbhai Memon v. State of Gujarat, State v. N.M.T. Joy Immaculate, and Gautam Navlakha v. NIA. It recorded:

"An order granting police custody remand is therefore an interlocutory order; but an order declining police custody remand is not."

Citing the Division Bench decision of the Gujarat High Court in Kandhal Sarman Jadeja v. State of Gujarat, the Court concluded:

"An order refusing to grant police remand would be a final order and a revision under Section 397 read with Section 401 of the Code would be maintainable."

Hence, it held the revision maintainable.

Regarding the notice under Section 41-A Cr.P.C., the Court observed that the State could not produce a duly receipted carbon copy from a serialized booklet as required by Amandeep Singh Johar and Standing Order No. 109/2020. It held:

"The only inference therefore is that the notice under section 41-A Cr.P.C. was never served upon the petitioner as required."

The Court reiterated the principle from Nazir Ahmad v. King-Emperor:

"Where a power is given to do a certain thing in a certain way, the thing must be done in that way or not at all."

On the issue of grounds of arrest, the Court referred to the Supreme Court judgements in Pankaj Bansal v. Union of India and Prabir Purkayastha v. State (NCT of Delhi). It noted:

"The requirement of serving grounds of arrest in writing is attracted to every arrest made for any penal offence on or after 03.10.2023."

It further stated:

"Serving the grounds of arrest in writing to an arrestee just sometime before the remand hearing cannot possibly be due or adequate compliance."

Relying on Vihaan Kumar v. State of Haryana, the Court reiterated:

"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."

Since the remand application also lacked specific grounds of arrest, the Court concluded that the arrest was vitiated.

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On the question of whether the 24-hour rule under Section 57 Cr.P.C. was violated, the Court declined to state, noting insufficient material and stating:

"Contention No. 3 is accordingly left open, to be decided in an appropriate case."

The Court allowed the petition on two grounds:

1. "That the notice under section 41-A Cr.P.C. was not served upon the petitioner."

2. "That the grounds of arrest in writing were not served upon the petitioner as required in law."

It therefore ordered:

"Order dated 06.06.2024 passed by the learned Sessions Court is accordingly set-aside; and order dated 28.03.2024 made by the learned ACMM is restored."

The Court clarified:

"The bail shall of course be subject to the conditions imposed vide order dated 21.03.2024 by the learned Magistrate as read with order dated 28.03.2024 passed by the learned ACMM."

Advocates Representing the Parties:

For the Petitioner: Ms. Rebecca M. John, Senior Advocate with Mr. Vishal Gosain, Mr. Arun Khatri, Mr. Sahil Khurana, Mr. Pravir Singh and Ms. Anushka Barua.

For the Respondent: Mr. Sanjay Jain, ASG with Mr. Aman Usman, APP, Mr. Akhand Pratap Singh, Mr. Nishank Tripathi, Mr. Nishant Tripathi, Ms. Harshita Sukhija, Ms. Samriddhi and Ms. Palak Jain. Mr. Sanjeev Bhandari, ASC with Mr. Arjit Sharma, Mr. Nikunj Bindal and Ms. Charu Sharma.

Case Title: Vikas Chawla @ Vicky v. State NCT of Delhi

Neutral Citation: 2025: DHC:2040

Case Number: CRL.M.C. 4845/2024 & CRL.M.A. 18207/2024, CRL.M.A. 18283/2024

Bench: Justice Anup Jairam Bhambhani

[Read/Download order]