The Supreme Court today reserved orders on a plea filed by the prime accused in Worli Hit-and-Run case seeking his release. The plea raised inter-alia the issue as to whether furnishing grounds of arrest to the accused, in writing, is mandatory in all cases, including those arising out of the Indian Penal Code/Bharatiya Nyaya Sanhita.

A bench of Justices BR Gavai and AG Masih came upon the issue pursuant to a challenge brought by Mihir Shah (the prime accused) to a Bombay High Court order, which denied his release on the ground of illegal arrest.

After hearing Senior Advocate Dr AM Singhvi (for Mihir Shah), the counsel appearing for State of Maharashtra, and Advocate Shri Singh (Amicus Curiae), the Supreme Court today reserved verdict.

Notably, Justice Gavai expressed that the bench was inclined to issue notice in the case only to settle the legal position.

"The question that we are called upon to answer is as to whether in each and every case, even arising out of IPC, would it be necessary to furnish grounds of arrest to accused either before arrest or forthwith after arrest? Another question we are required to consider is, in exceptional cases, on account of exigencies, if it is not possible to furnish grounds of arrest either before or immediately after arrest, whether even in such cases the arrest is vitiated on account of non-compliance with Section 50 CrPC?" the Court observed in its order.

Senior Advocate Vikram Chaudhri (alongwith Advocate Dhvani Shah) and Advocate Karl P Rustomkhan (alongwith Advocate Vaibhav Jagtap) represented petitioners in two other cases listed before the Court, wherein similar issue was involved and a reference made by the High Court in view of conflicting decisions. As the issue was similar to Mihir Shah's case, the Court said that its decision would cover the two cases as well. However, considering their peculiar facts, the fact that chargesheet had been filed in both the cases and that the accused had spent about 10 months in custody, bail was granted, subject to terms and conditions.

During the hearing, Singhvi, on behalf of Mihir Shah, submitted that hard cases should not lead to "bad law". He contended that even till date, when the petitioner has undergone about 10 months in custody, no grounds of arrest have been furnished. Citing judicial precedents on the law point, the senior counsel further urged that in cases of hot pursuit, it would be understandable if grounds are supplied to the accused a few hours after he is apprehended; however, it cannot be the case that in heinous offenses (like murder), grounds are not supplied at all.

Per contra, counsel appearing for Maharashtra submitted that the grounds of arrest and legal rights were (orally) explained to the petitioner, in presence of panchas. Whether they were required to be furnished in writing, the Court would lay down, she said. The counsel also took the Court through the panch witness' statement.

Hearing her, Justice Gavai posed, "Ordinarily, even after arrest, why should the grounds not be communicated in 24 hrs? In exceptional circumstances, nobody is disputing there can be an exception...". To this, the counsel replied by saying that all that could have been done in the case was done. She highlighted the exigencies of the case by informing that the accused was absconding after the incident and came to be apprehended by police officials of a station other than the Worli police station. "Arrest memo mentions the father's name and that information had been communicated to him over phone. Reasons and grounds were both communicated", she asserted.

The Amicus, on the other hand, took the Court through a note filed by him tracing the legal provisions and judicial precedents on the issue (including Vihaan Kumar v. State of Haryana). He submitted that an accused's right to be informed about the grounds of arrest flows from Article 22 of the Constitution, which provides that the grounds must be informed as soon as may be. Likewise, he said, Section 50 CrPC also requires that the grounds must be supplied to the accused. However, there is no statutory or Constitutional mandate that the grounds have to be supplied in writing.

The Amicus urged that there has been consistent judicial interpretation of accused's rights in the above regard, with only one caveat that if the accused claims he was not communicated the grounds, burden shall be on the police officers to prove otherwise.

Drawing a distinction between general offenses vis-a-vis offenses under special laws (like the PMLA, UAPA and NDPS), he further underlined that when seeking bail under special laws, there is added burden on the accused to prima facie convince the bail Court that he did not commit the offense. Therefore, supply of grounds of arrest (and reasons to believe) is imperative in special laws, which structure cannot be adopted as it is when dealing with general offenses.

It was also argued that non-supply of grounds of arrest should not be fatal. The Amicus remarked that it would be absurd if police officials chasing an accused are required to first go to the police station and obtain grounds of arrest before making the arrest. Concurring, Justice Gavai said that it would be equally absurd if say a person is caught with 100 kgs of ganja, and still, before making arrest, the police officials are required to go back to the police station and furnish grounds of arrest.

At one point, the Amicus categorically stated that grounds of arrest must be supplied to the accused and there is no doubt about that. However, he added, by providing that grounds must be supplied "forthwith", the law casts an obligation that they shall be supplied "as soon as may be possible". For example, if an accused is being chased in a market place, the first priority is to catch him and make the arrest. Later, when he is taken back to the police station, he can be explained why he has been arrested and that would be sufficient compliance of the provisions.

Contemporaneously, the Amicus informed, a Court can also gather from the case diary whether grounds were communicated to the accused or not. In context of the term "forthwith", he also said that there is an upper limit in the sense that grounds must be supplied in the 24-hrs period after making of arrest, before the accused is placed before the remand Court. 

Hearing this, Justice Masih posed to the Amicus, "according to you, prior to the remand, the grounds should be communicated. Why not in writing at that stage?" On this, the Amicus said that there is no reason why grounds should not be supplied during the 24-hrs period. However, the legal position, as on date, merely suggests that grounds should be furnished during that time, without mandating so.

"Our only concern is, [if] somebody is caught red-handed shooting someone...whether still notice should be required to be given to him?", Justice Gavai pondered. On Singhvi's contention that the case at hand was a "hard case", the judge commented,

"This is not [just] hard, one of the most inhuman conducts...you drag the lady on motorbike for kms and you don't have even the courtesy to call someone and send her to hospital...(and then you say grounds were not given)...I'll give you an example. If I shoot you here in the presence of 10 persons, police are standing outside, still the police should wait? Go to the police station and get grounds of arrest? Such hard cases give an opportunity for us to develop law. Should we forget all ground realities? Somebody is caught red-handed shooting 10 people, or shooting in Supreme Court compound, then the police should wait for grounds of arrest? Our judgments being totally misused...".

Notably, during his submissions, Singhvi raised an apprehension of misuse in case it is held that grounds of arrest need not be mandatorily supplied in all kinds of cases. Reassuring him, Justice Gavai said, "We want to strike a balance. On one hand, we do not want machineries to misuse their powers. On the other hand, we also do not want the accused to take advantage of some observations and get out of Court by bypassing the remedy under Section 438 CrPC and taking recourse only to [our decisions]".

In terms of what the Amicus submitted, Justice Gavai also orally observed that in a given case, a Court can find out from the case diary whether grounds were communicated or not. If it is the contention of the accused that they were not communicated, then the burden would be on the police to show that they were communicated. "That is the structure that Vihaan has crystallized and that is the structure which appears to be the fairest, provided the police are put to task wherever they are unable to effectuate the grounds of arrest or demonstrate that grounds of arrest were not..." said the Amicus in response.

Speaking on the consequence of non-supply of grounds of arrest, the Amicus also submitted that the time when the accused raises a plea that he was not supplied grounds of arrest is a relevant consideration. This is because there are immediate consequences in terms of arrest being declared illegal. He also drew attention to an issue left open in Vihaan Kumar, that is - can an accused be re-arrested if he is set free (after arrest is vitiated) and subsequently the police furnishes grounds of arrest.

Ultimately, the Court reserved its orders in the case.

Case Title: MIHIR RAJESH SHAH Versus THE STATE OF MAHARASHTRA AND ANR., SLP(Crl) No. 17132/2024 (and connected case)