Why is the Delhi High Court least persuasive on denying written arrest grounds to NewsClick accused?

The accused have a strong case following the recent Supreme Court judgment, which mandates ensuring Constitutional guarantee under Article 22(1).

Journalists from various organisations hold a candle light march as a protest against the FIR on Newsclick journalists outside Mumbai Press Club. | Photo Credit: EMMANUAL YOGINI

Article 22(1) of the Constitution dictates that no person who is arrested can be detained in custody without being promptly informed of the grounds for their arrest. This provision’s significance recently came to light in two distinct cases. The first instance was highlighted by the Supreme Court in Pankaj Bansal v Union of India on October 3. The second occurred during the proceedings of Prabir Purkayastha vs. State (NCT of Delhi) in which a Single Judge of the Delhi High Court dismissed the accused’s challenge to their remand on October 13. Regrettably, the Delhi High Court chose to distinguish its interpretation from the Supreme Court’s verdict, delivered only ten days earlier.

The Supreme Court bench comprising Justices A.S. Bopanna and Sanjay Kumar, emphasised that Article 22(1) of the Constitution, being a fundamental right guaranteed to the arrested person, requires that the conveyance of the grounds of arrest be meaningful and purposeful.

Section 45 of the Prevention of Money Laundering Act, 2002, (PMLA) permits a person arrested under Section 19 to seek release on bail. However, this is subject to the fulfilment of two conditions: first, the Court must be satisfied, after allowing the public prosecutor to oppose the release application, that there are reasonable grounds to believe the arrested person is not guilty of the offence; and second, that they are not likely to commit any offence while on bail.

To meet these requirements, the arrested person must be informed of the grounds on which they were arrested under Section 19 and the basis for the officer’s ‘reason to believe’ that they are guilty of an offence under the PMLA. Only with this knowledge can the arrested person plead and prove before the Special Court that there are grounds to believe they are not guilty of the offence, thus enabling them to seek bail.

Consequently, the Supreme Court, in its judgment authored by Justice Sanjay Kumar on October 3, affirmed that the communication of the grounds of arrest, as mandated by Article 22(1) of the Constitution and Section 19 of the PMLA, serves a higher purpose and must be accorded due importance.

In the case before the Supreme Court, the Enforcement Directorate (ED) claimed that witnesses were present and certified that the grounds of arrest were read out and explained to the accused in Hindi. However, the Court found it inconclusive as the accused did not sign the document. Failure to comply with this requirement would result in the immediate release of the arrested person, the Court noted.

This precarious situation can be easily avoided by providing the written grounds of arrest, as recorded by the authorised officer in accordance with Section 19(1) of the PMLA, to the arrested person with proper acknowledgment, instead of leaving it to the debatable ipse dixit of the authorised officer, the Supreme Court held on October 3.

The Supreme Court also clarified that conveying information about the grounds of arrest not only serves to inform the arrested person but also enables them to seek legal counsel and subsequently present their case for bail under Section 45.

Moreover, considering the potential volume of information on the grounds of arrest, it would be nearly impossible for the accused to remember all the details they heard or read for future legal proceedings.

The Court recognised the ED’s frequent claim of the sensitive nature of the investigation as a reason for not disclosing the grounds of arrest. In response, the Supreme Court, in Paragraph 34 of its October 3 judgement, asserted that there should typically be no risk of sensitive material being divulged, which could compromise the integrity of the investigation. If any such sensitive information is included in the grounds of arrest, the authorised officer can redact such portions and provide the edited copy to the arrested person, safeguarding the investigation’s sanctity.

In essence, the Supreme Court ruled that the arrests and subsequent detention of the appellants in the case before them could not be upheld.

The NewsClick scenario

Shortly after the Supreme Court’s judgement on October 3, the Editor-in-Chief of NewsClick, Prabir Purkayastha, and its human resources head, Amit Chakravarty, were arrested. This raised questions about whether the Supreme Court’s ruling in Pankaj Bansal applied to the NewsClick case. Both Purkayastha and Chakraborty challenged their police remand, arguing that they were not provided with the written grounds of arrest, as mandated by the Supreme Court’s October 3 judgement. The grounds of arrest were orally conveyed, and a written memo of arrest was furnished within 24 hours, as claimed by the prosecution.

Justice Tushar Rao Gedela of the Delhi High Court, however, disagreed with the counsel for Purkayastha and Chakravarty, stating that the Supreme Court’s October 3 verdict did not apply to their case. He found no procedural infirmity or violation of the provisions of Section 43B of the UAPA or Article 22(1) of the Constitution. Justice Gedela also held that the rationale laid down by the Supreme Court in Pankaj Bansal was not applicable to the facts and law in this case, deeming the challenge regarding the non-furnishing of grounds of arrest as untenable.

A man carries a placard during a protest against the arrest of NewsClick’s founder and editor-in-chief Prabir Purkayastha and Amit Chakravarty, the firm’s human resources head, under a stringent anti-terror law on October 5 in Bengaluru. | Photo Credit: Abhishek Chinnappa

Justice Gedela noted that the offences alleged in the NewsClickcase fall under the Unlawful Activities (Prevention) Act, 1967, directly impacting the stability, integrity, and sovereignty of the country and bearing significant national security implications. However, he did not clearly distinguish between the NewsClickcase and the Pankaj Bansal case, despite referencing arguments for and against applying the Supreme Court’s ruling to the NewsClickcase.

Furthermore, Justice Gedela reproduced Solicitor General Tushar Mehta’s submission that the email exchanges between the petitioner and other entities indicated an attempt to portray Jammu and Kashmir and Arunachal Pradesh as “disputed territories”. The Solicitor General also claimed that the email communication used the term “Northern Border of India”, which he asserted was generally used as Chinese propaganda.

Justice Gedela’s conclusion that the allegations against the accused were serious based on these two superficial claims from the prosecution appeared legally vulnerable.

V. Venkatesan is an independent legal journalist based in New Delhi. Formerly Senior Associate Editor with Frontline, he has been reporting and commenting on legal issues for news portals.