The Supreme Court of India has recently taken important strides towards protecting personal liberty and curbing indiscriminate exercise of power by the Directorate of Enforcement (“ED”). In a fresh judgment in Pankaj Bansal v. Union of India[1], the Supreme Court has criticised disparate procedures being used by various officers of the ED across the country while arresting a person accused of committing an offence under the Prevention of Money Laundering Act, 2002 (“PMLA”), mandating that the provision of written grounds of arrest be provided to the arrested person as a matter of course and without exception.
Given the ED’s wide-ranging and often unbridled exercise of power, this is a welcome move. It reiterates the principle of rule of law as enshrined in the Constitution of India. This article analyses the view taken by the Supreme Court in the Pankaj Bansal case and the impact that it may have on the rights of persons, subject to the severe action of arrest.
Background
The Pankaj Bansal case arose out of a challenge to the Orders of the Punjab and Haryana High Court[2], inter alia rejecting the prayer of the appellants to quash/ set aside their arrest orders. The ED arrested the appellants based on an ECIR dated June 13, 2023 (“ECIR”), registered basis FIR dated April 17, 2023 (“FIR”). The appellants were also being investigated under another FIR borne out of similar facts. As noted by the Supreme Court, the ED had merely read out to the appellants the grounds of arrest in the presence of witnesses and admittedly failed to provide them with a written copy of such reasons.
The Supreme Court recorded that subsequent to such arrest, the appellants were produced before the Sessions Judge, who, while passing the remand order had failed to record a finding that he had perused the grounds of arrest to ascertain that the ED had ‘reasons to believe’ that the appellants were guilty of offence under the PMLA. The High Court of Punjab & Haryana had also failed to appreciate non-compliance with Section 19 of the PMLA and had erroneously dismissed the challenge, presuming that the appellants had challenged the constitutional validity of the provisions of the PMLA, which was no more res integra.
Relevant Considerations
Considering the above, the Supreme Court was seized with the question whether the arrest of the appellants under Section 19 of the PMLA and subsequent orders passed by the Sessions Judge remanding the appellants for custodial interrogation were valid. At the outset, the Supreme Court was of the view that the Sessions Judge had completely failed in discharging his duty, which was to consider whether the ED had complied with the mandate of Section 19 of PMLA. Further, the Supreme Court also observed that the appellants had only sought reading down or reading into the provisions of Section 19 of the PMLA and were not challenging its constitutional validity.
In this context, the Supreme Court analysed the scheme of Section 19 of the PMLA, which requires (a) ED officers to record their reasons in writing for their belief regarding the commission of the offence of money laundering, (b) such grounds of arrest along with the material in its possession to be forwarded to the Adjudicating Authority in a sealed envelope, and (c) ED officers to ‘inform’ the arrestee of the grounds for such arrest without any delay.
The severity associated with the act of arrest of a person is evident from the high compliance threshold imposed on the ED before they take such coercive steps. In this regard, the Supreme Court clarified that mere failure of the appellants to respond to questions put to them would not be sufficient for the Investigating Officer to opine that they were liable to be arrested. In fact, the Supreme Court has observed that expecting a confession during custodial interrogation and deeming anything short thereof as non-cooperation is antithetical to the right against self-incrimination as protected under Article 20(3) of the Constitution.[3]
The Supreme Court took further note of two High Court judgments in Moin Akhtar Qureshi v. Union of India[4] and Chhagan Chandrakant Bhujbal v. Union of India[5], where the respective High Courts had taken the view that there is no statutory requirement of the grounds of arrest to be communicated in writing. While overruling the above judgments, the Supreme Court has observed that henceforth an arrestee must necessarily be provided written reasons for their arrest. On this, it has been observed that unless an arrestee has knowledge of the facts leading to the arrest, they would not be able to surmount the twin conditions of bail prescribed under Section 45 of PMLA, one of which is exhibiting existence of reasonable grounds to believe that the arrestee is not guilty of such offence.
Accordingly, it has now been held that ‘informing’ of the grounds of arrest in writing is meant to serve a higher purpose. Specifically, in the context of Pankaj Bansal’s arrest, the Supreme Court observed that orally communicating the grounds of arrest may lead to contradictory facts being averred, boiling down to the word of the arrestee against the word of the officer. This was especially noted in the context of the fact that at times the grounds of arrest are detailed and voluminous, and hence, it would be impossible for the arrestee to record and remember all that they had read or heard for future recall to avail legal remedies.
While the above assessment greatly advances the need for a standardised approach, the Supreme Court has also perhaps allowed for a degree of discretion by stating that the ED may provide redacted grounds of arrest. The Supreme Court has made such concession in the backdrop of an apprehension that presenting written grounds of arrest may in some cases result in divulging sensitive information, thereby compromising the sanctity and integrity of the investigation.
The above approach appears to create a balance between the rights of an arrestee under Article 22 of the Constitution and the integrity of the investigation. Though it remains to be seen whether such leeway may potentially be abused by the ED, a form of protection against indiscriminate redaction may already exist, given that the ED has to provide unredacted grounds of arrest and material gathered in support thereof to the adjudicating authority in a sealed envelope in terms of Section 19(1) of PMLA.
Interplay with the Code of Criminal Procedure, 1973 (“CrPC”)
Similar to the mandate under Section 19(3) of the PMLA, Section 50 of the CrPC stipulates that every police officer arresting any person without a warrant shall forthwith communicate to him full particulars of the offence for which he is being arrested or other grounds for such arrest.
In this regard, the Bombay High Court has held that communication referred to in Section 50 of the CrPC need not be, in every case, in writing and that the obligation to “forthwith communicate to him full particulars of the offence for which he is arrested” can be said to be discharged if it is done with all reasonable dispatch and without avoidable delay.[6] The Delhi High Court has placed reliance on the aforesaid judgment of the Bombay High Court in Moin Akhtar Qureshi’s case (supra) to hold that the grounds of arrest is required to be informed to the arrestee and that the same may be done by allowing the arrestee to read the same.
As stated above, the decision in Moin Akhtar Qureshi’s case (supra) has been overruled by the Supreme Court in Pankaj Bansal’s case. Basis this judgment, it may be argued that not only ED, even police authorities taking actions under the CrPC would be required to provide grounds of arrest in writing to avoid any doubts related to compliance with Section 50 of CrPC and to enable the arrestee to avail appropriate legal defence. Accordingly, the judgment of the Bombay High Court in Sunil Chainani’s case may require reconsideration.
Conclusion
The Pankaj Bansal judgment is a step in the right direction as it seeks to weed out arbitrary practices adopted by ED in exercise of its power to arrest. The judgment further strikes a balance between the rights of an arrestee against overzealous exercise of power of arrest by the ED and preserving the sanctity of an investigation by permitting the ED to redact sensitive portions of grounds of arrest. The views of the Supreme Court will potentially assist in harmonising the approach of law enforcement agencies under different statutes that provide for arrest of persons, while upholding the idea of protecting personal liberty.
Interestingly, the Union of India has recently made a submission in the Newsclick case before the Supreme Court that it will soon file a review petition against the Pankaj Bansal judgment, on the retrospective applicability of the same and whether an arrest made without written grounds would be void. In the said Newsclick case, the arrest of the accused was made on October 3, 2023, whereas the Pankaj Bansal judgment was pronounced on October 4, 2023, with the Union of India arguing that the Pankaj Bansal judgment would not apply to the Newsclick arrests. It will be interesting to see the approach that the Supreme Court takes as the grounds of arrest were admittedly not provided in writing in the Newsclick case.[7]
For further information, please contact:
Aviral Sahai, Partner, Cyril Amarchand Mangaldas
aviral.sahai@cyrilshroff.com
[1] Pankaj Bansal v. Union of India, Criminal Appeal Nos. 3051-3052 of 2023, judgment dated October 3, 2023.
[2] Orders dated July 20, 2023, and July 26, 2023 of the High Court were under challenge before the Supreme Court.
[3] Santosh s/o Dwarkadas Fafat v. State of Maharashtra, (2017) 9 SCC 714
[4] Moin Akhtar Qureshi v. Union of India, 2017 SCC OnLine Del 12108.
[5] Chhagan Chandrakant Bhujbal v. Union of India, 2017 (1) AIR Bom R (Cri) 929.
[6] Sunil Chainani v. Inspector of Police, C.B. Control, Bombay, (1987) SCC OnLine Bom 424
[7] Centre To File Review Against Supreme Court’s Judgment Directing ED To Inform Grounds Of Arrest In Writing (livelaw.in)
