The Rights of the Accused under the BNSS 2023

📖 Pankaj Bansal v. Union of India, (2023) 7 SCC 362

Facts: Persons arrested under a special statute were told orally of the grounds of their arrest, the grounds not being furnished to them in writing, and it was contended that this satisfied the statutory requirement that a person be informed of the grounds as soon as may be.

Held: The Supreme Court held that a person arrested must be informed of the grounds of his arrest, and that in order to give true meaning and purpose to that requirement the grounds must be furnished to him in writing. The Court held that the purpose of the right is to enable the person to consult a legal practitioner, to oppose the remand sought against him, and to apply for bail — none of which he can do effectively unless he knows, with precision, what is alleged. It held that an oral communication leaves him unable to prove what he was told and his lawyer unable to answer it, and creates a dispute of fact where none need arise. The Court drew the distinction between the reasons for arrest — general considerations such as the risk of absconding or of tampering, common to every arrest — and the grounds of arrest, which are the specific facts personal to the arrested person on which the officer acted; and held that it is the latter which must be communicated.

Ratio: A person arrested must be furnished with the grounds of his arrest in writing. Grounds are the specific facts personal to him on which the officer acted, as distinct from the general reasons common to every arrest.

📖 Prabir Purkayastha v. State (NCT of Delhi), (2024) 8 SCC 254

Facts: A person was arrested and remanded without the grounds of arrest being furnished to him in writing, and it was contended that the requirement laid down in relation to one special statute did not extend to arrests under others or under the general criminal law.

Held: The Supreme Court held that the requirement to furnish the grounds of arrest in writing is not confined to any particular statute but flows from Article 22(1) of the Constitution, and therefore applies to every arrest. The Court held that the grounds must be supplied to the arrested person as a written communication, and that it is not enough that they appear in the case diary or in an application to the Magistrate to which he has no access. On consequence, the Court held that where the grounds were not so furnished, the arrest is invalid, and the remand order which follows it is vitiated — the person being entitled to be released, without prejudice to the power of the investigating agency to proceed afresh in accordance with law. It emphasised that a requirement founded in Part III cannot be treated as a formality whose breach is cured by the subsequent conduct of the proceedings.

Ratio: The requirement to furnish grounds of arrest in writing flows from Article 22(1) and applies to every arrest. Where it is not complied with, the arrest is invalid and the remand vitiated, entitling the person to release.

⚠ Grounds are not reasons

Reasons for arrest are the general considerations which justify taking a person into custody — that he may abscond, that he may tamper with evidence, that his custodial interrogation is required. They are common to every arrest and tell the person almost nothing.

Grounds of arrest are the specific facts personal to him on which the officer acted — what he is said to have done, when, and on what material. They are his alone.

It is the grounds which must be communicated, and communicated in writing, because the purpose is to enable him to consult a lawyer, oppose the remand and apply for bail — none of which can be done against a general formula.

And the consequence of failure is not merely a reprimand: the arrest is invalid and the remand vitiated, the person being entitled to release — though the agency remains free to proceed afresh in accordance with law.

The position stated shortly

1. The rights of the accused are the conditions on which the State is permitted to prosecute, not concessions to him.

2. On arrest: the safeguards in section 35 and the notice of appearance for offences under seven years; the grounds of arrest and the right to bail under section 47; intimation to a nominated person; medical examination; and production within twenty-four hours.

3. During investigation: no statement to the police to be signed; no police confession admissible; a statement before a Magistrate on the prescribed safeguards; remand only on the Magistrate’s satisfaction; and default bail on the expiry of sixty or ninety days.

4. At the trial: the documents within fourteen days; the right to be defended and legal aid at State expense; evidence in his presence; the opportunity to personally explain under section 351; and the right to be a competent witness on his own written request.

5. Throughout: Article 20(3); the bar on a second trial under section 337; the prohibition on inducement under section 354; the presumption of innocence; and the right to a speedy trial.

6. The grounds of arrest is the right on which the others depend: a man who does not know why he was arrested cannot instruct a lawyer, oppose remand, or apply for bail.

7. The grounds must be furnished in writing, an oral communication leaving him unable to prove what he was told: Pankaj Bansal.

8. Grounds are not reasons. Reasons are the general considerations common to every arrest; grounds are the specific facts personal to him.

9. The requirement flows from Article 22(1) and applies to every arrest, not merely to arrests under a particular statute: Prabir Purkayastha.

10. Where it is not complied with, the arrest is invalid and the remand vitiated, entitling the person to release — without prejudice to the agency proceeding afresh in accordance with law.