"Violation of Fundamental Rights Cannot Be Brushed Aside: Karnataka High Court Quashes Remand Order, Frees Arrestee Over 'Non-Communication of Grounds of Arrest' Under Articles 21 and 22(1)"
Safiya Malik
The High Court of Karnataka Single Bench of Justice Hemant Chandangoudar allowed a writ petition challenging the remand order passed against the petitioner under Sections 302 and 201 of the IPC. The Court quashed the impugned remand order and directed the immediate release of the petitioner from custody, subject to conditions. It held that non-communication of grounds of arrest in writing violated the petitioner's fundamental rights under Articles 21 and 22(1) of the Constitution. The Court further directed that applications for bail by similarly situated persons prejudiced due to non-service of grounds of arrest must be considered in accordance with the principles set out in the judgment.
The petitioner, aged about 20 years, was arrested on 17 February 2023 in connection with Crime No. 35 of 2023 registered at Arsikere Police Station, Hassan District, under Sections 302 and 201 of the IPC. He was produced before the jurisdictional Magistrate on the same day and remanded to judicial custody. The petitioner challenged his arrest and subsequent remand, contending that the grounds of arrest were not communicated to him in writing at the time of arrest.
The petitioner argued that non-communication of grounds of arrest constituted a violation of the constitutional right under Article 22(1) and the right to protection of life and personal liberty under Article 21. It was submitted that the arrest memo dated 17 February 2023 did not contain any meaningful grounds warranting the arrest. In support of his case, the petitioner relied on judgments including Pankaj Bansal v. Union of India, Prabir Purkayastha v. State (NCT) of Delhi, and Vihaan Kumar v. State of Haryana, asserting that the service of written grounds of arrest was mandatory.
It was further contended that procedural laws protecting fundamental rights could have retrospective application, and that the petitioner’s arrest, effected before the pronouncement of Pankaj Bansal’s decision, was nonetheless subject to constitutional mandates prevailing at the time of the arrest.
In response, the Additional Special Public Prosecutor submitted that the petitioner had been served with an arrest memo and intimation of arrest as prescribed under Sections 50 and 50-A of CrPC. It was argued that the obligation to provide written grounds of arrest became mandatory only after the Supreme Court’s judgment in Pankaj Bansal, decided on 3 October 2023. Since the petitioner’s arrest took place before that date, it was contended that the petition was not maintainable.
The State further argued that retrospective application of the principle should be limited to non-habitual offenders and should not extend to all cases, as it would cause serious disruptions in the administration of criminal justice.
The petitioner countered by asserting that the right to be informed of the grounds of arrest is a fundamental constitutional guarantee under Article 22(1), effective since 26 January 1950, and was merely reasserted by the recent judgments without creating a new obligation.
After hearing the parties and examining the material on record, including the arrest memo at Annexures E and F, the Court noted that the grounds of arrest were not communicated to the petitioner, and thus a fundamental violation of his constitutional rights had occurred.
The Court recorded that "a bare perusal of the arrest memo reveals that the arrestee-petitioner was not disclosed with any worthwhile particulars, much less the satisfaction of the requirement of communication in writing, of the grounds of arrest, as postulated in subsequent judgments pronounced since the date of the impugned arrest."
It was stated that "although non-service of grounds of arrest is construed to be a mere procedural aberration, the same is now, more recently, interpreted to be a material irregularity, which cannot be made good at a later stage by filing of the chargesheet."
The Court observed that "any violation of procedural fairness, more particularly, the entrenched Fundamental Rights, vitiates the arrest, thereby rendering continued incarceration of the petitioner to be in contravention of Articles 13(2), 21, and 22(1) of the Constitution."
Justice Chandangoudar further recorded that "grave and compelling circumstances necessitating the arrest of a person must precede the commission of arrest, and that the latter must be followed by communication of the said grounds, so as to afford the arrestee a representation to lay a challenge to the arrest."
The Court stated that "when a violation of Article 22(1) is established, it is the duty of the court to forthwith order the release of the accused."
The Court noted that "the argument against retrospective application of the principle enunciated in Prabir Purkayastha does not hold good, particularly in light of the rule of beneficial construction that favours protection of liberty."
It was recorded that "the requirement to communicate the grounds of arrest in writing cannot be diluted under any circumstance and applies irrespective of the date of arrest."
Finally, the Court observed that "this Court, as a Court of equity and justice under Articles 226 and 227 of the Constitution, must interfere to rectify manifest injustice where a violation of constitutional guarantees is evident."
The Court directed, "The instant petition is allowed."
It ordered that "the impugned order of remand dated 17.02.2023 passed by the Senior Civil Judge and JMFC, Arsikere, in Crime No. 35/2023 registered at Arsikere Police Station, Hassan District, for offences punishable under Section 302 and 201 IPC is hereby quashed and set aside."
The Court instructed that "the respondent is hereby directed to release the petitioner from custody forthwith, subject to the following conditions: the petitioner shall execute a personal bond for a sum of Rs.1,00,000/- with one surety for a like sum; shall not threaten or tamper with prosecution witnesses; shall appear before the Investigating Officer when required; shall not involve in similar offences; and shall not leave the territorial limits without prior permission."
It was further directed that "the concerned Jail Authorities shall release the petitioner immediately upon receipt of a copy of this order if he is not required in any other cases."
The judgment mandated that "the Registry shall communicate this order to the Jail Authorities concerned forthwith without any delay through e-mail and telephonic communication."
Finally, it was ordered that "Trial Courts shall consider applications for bail made by those prejudiced due to non-service of grounds of arrest in accordance with the observations made in this judgment."
Advocates Representing the Parties
For the Petitioner: Sri Pratheep K.C., Advocate
For the Respondents: Sri B.N. Jagadeesha, Additional Special Public Prosecutor with Sri Rahul Rai K., High Court Government Pleader
Case Title: Hemanth Datta @ Hemantha @ Baby v. State of Karnataka and Another
Neutral Citation: 2025:KHC:16018
Case Number: Writ Petition No. 9302 of 2025
Bench: Justice Hemant Chandangoudar
[Read/Download order]
