HC refers key arrest procedure issues to larger bench

MUMBAI: A larger bench of the Bombay High Court will soon decide whether the grounds of arrest must be communicated to an accused in writing and whether a prior notice is mandatory before an arrest is made. The decision follows concerns over procedural ambiguities that have allowed accused persons in serious crimes to secure bail.

A division bench of Justices Sarang Kotwal and S M Modak, hearing multiple petitions on the issue, referred the matter to a larger bench, citing “total confusion” in procedural aspects of arrest. “As legal issues were argued and debated before us, it became increasingly clear that there is a lack of clarity, particularly in the minds of investigating agencies,” the court observed on Friday.

Legal provisions under scrutiny

Under Section 50 of the Code of Criminal Procedure (CrPC), police must inform a person of the grounds of arrest at the time of detention. Section 41A allows police to issue a notice requiring an accused to appear for questioning and prohibits arrest unless deemed necessary. However, the application of these provisions has led to conflicting interpretations, prompting the need for a definitive ruling.

The issue gained significance as arrests in the cases under review were made before the Bharatiya Nagarik Suraksha Sanhita (BNSS) replaced the CrPC. The larger bench will determine the cut-off date until which these provisions remained mandatory and examine whether non-compliance renders an arrest illegal.

Impact on heinous crime cases

The court noted that accused persons in serious crimes—such as rape, murder, and offences under the Protection of Children from Sexual Offences Act (POCSO), Maharashtra Control of Organised Crime Act (MCOCA), and the Narcotic Drugs and Psychotropic Substances Act (NDPS)—have leveraged procedural lapses to obtain bail. “Due to lack of awareness among investigating agencies, accused persons are claiming benefit even in the most serious offences,” the HC stated.

Highlighting the need to balance the rights of the accused with those of victims and society, the bench observed, “In heinous crimes, the victim and society also suffer. If an accused is released solely because the grounds of arrest were not furnished in writing, it would cause serious prejudice to the victims.”

BOX: Key questions before the larger bench

-The larger bench will address several critical questions, including:

-Does Section 50 of the CrPC mandate that the grounds of arrest be provided in writing?

-If so, should they be furnished at the time of arrest or before the first remand application is filed?

-Can a court waive this requirement based on the gravity of the offence?

-Is a notice under Section 41A mandatory before arrest in all cases or only in specific instances?

-Should magistrates and investigating agencies provide the remand note (which outlines reasons for seeking police custody) to the accused or defence lawyers in advance?

The division bench emphasised the need for “clear and definite” guidelines to ensure uniformity across courts and law enforcement agencies. The Chief Justice of the Bombay High Court will now constitute a larger bench to adjudicate these matters.