Balancing procedural fairness: A study of arrest procedures under CrPC/BNSS and PMLA

The foundation of criminal justice rests on ensuring procedural fairness when arresting individuals and protecting the rights of accused.

This article delves into the contrasting legal obligations for notifying an accused person of the reasons for their arrest under three pivotal provisions - Section 50 of the Code of Criminal Procedure, 1973 (CrPC), Section 47 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) and Section 19 of the Prevention of Money Laundering Act, 2002 (PMLA).

The High Court of Delhi and the Supreme Court of India have recently delivered significant judgments interpreting these provisions, which this article examines in detail.

As per Section 50 CrPC and the identically worded Section 47 BNSS, any police officer arresting someone without a warrant is duty-bound to "forthwith communicate to him full particulars of the offence for which he is arrested or other grounds for such arrest." The BNSS replaced the CrPC for offences committed after July 1, 2024, but retains the same procedural safeguard. The term "forthwith" clearly reflects the legislative intent of ensuring the grounds of arrest are swiftly conveyed to the arrestee. This empowers the arrested individual to instantly understand why they have been taken into custody, consult a lawyer and exercise their right to seek bail or challenge their remand.

The Delhi High Court's recent judgment dated February 4, 2025 in Marfing Tamang v. State firmly underscored the significance of "forthwith" in Section 50 CrPC. It was held that the accused must be provided the grounds of arrest concurrently with the issuance of the arrest memo, promptly upon arrest. The Court observed that deferring the communication of arrest grounds would not only weaken the plain meaning of "forthwith" but also undermine the fundamental right of an arrestee under Article 22(1) of the Constitution to know the reasons for their arrest.

The High Court further elaborated that before taking someone into custody, the investigating officer must have considered the factors necessitating the arrest. Hence, there can be no justification for postponing the written communication of those grounds to the arrestee along with the arrest memo. This also promotes transparency and accountability by creating a contemporaneous record.

The Marfing Tamang judgment criticised the practice of first arresting the accused, subsequently filing the remand application, producing them in court and only then providing the grounds of arrest. The Court opined this deprives the accused of sufficient opportunity to arrange legal representation and oppose their remand. The term "forthwith" in CrPC/BNSS denotes immediately upon arrest and not sometime within the maximum 24 hours before being brought to court.

The High Court also explained the difference between the "grounds of arrest" stipulated under Section 50 CrPC/Section 47 BNSS and the "reasons for arrest" mentioned in the arrest memo. Grounds of arrest are more comprehensive and specific to the case, referring to the evidence against the accused. In contrast, reasons for arrest often involve routine recitals of the legal basis for the arrest. Failure to promptly provide the grounds of arrest renders the arrest itself unlawful, the Court held.

Section 19 PMLA provides that an authorised officer may arrest a person guilty of a money laundering offence and "shall, as soon as may be, inform him of the grounds for such arrest."

Analysing this provision, the Supreme Court of India in its judgment in Ram Kishor Arora v. Directorate of Enforcement interpreted "as soon as may be" to mean "as early as possible without avoidable delay" or "within reasonably requisite or feasible time". Since accused must be brought before the court within 24 hours of arrest, the apex court held that apprising them of the arrest grounds within that time frame before production would satisfy both Section 19 PMLA and Article 22(1).

The Supreme Court noted that the phrasing in Section 19 PMLA is less rigorous than the "forthwith" requirement in Section 50 CrPC/Section 47 BNSS. "As soon as may be" allows a reasonable post-arrest duration to inform the arrestee, striking a balance between the need for alacrity and practical considerations, provided the grounds are furnished within 24 hours prior to court production. Verbally conveying the grounds would suffice initially, but they must be provided in writing within the 24-hour window, the Court said.

The linguistic variation between Section 50 CrPC/Section 47 BNSS ("forthwith") and Section 19 PMLA ("as soon as may be") carries material import. The former is more imperative than the latter.

Given PMLA's rigorous bail conditions and presumption of culpability, perhaps the statute affords some flexibility in supplying grounds compared to ordinary CrPC/BNSS arrests. The CrPC/BNSS envision instantaneous communication of grounds upon arrest, whereas the PMLA allows conveying grounds without undue delay before court production.

Nevertheless, the fundamental right under Article 22(1) to be informed of the grounds of one's arrest remains inviolable in both scenarios. The Delhi High Court stressed that procedural safeguards in criminal law flow from constitutional rights and warrant strict interpretation. Any dilution can gravely jeopardise personal liberty.

Thus, the CrPC/BNSS and PMLA provisions must be harmoniously construed with each other and the Constitution to uphold procedural fairness. The common thread is that an arrestee must be apprised of the grounds of their arrest in writing at the earliest - forthwith in CrPC/BNSS arrests, and no later than 24 hours before production in PMLA cases. Unreasonable delay vitiates the arrest.

The pronouncements of the Delhi High Court and the Supreme Court have shed vital light on the procedural safeguards in CrPC/BNSS and PMLA arrests. Investigating agencies can no longer adopt a blasé approach in communicating arrest grounds to an accused. The Constitution guarantees the right to prompt intimation of these grounds to enable the arrestee to mount an effective legal defense. "Forthwith" under CrPC means immediately upon arrest without delay, while "as soon as may be" under PMLA denotes without undue delay but within 24 hours before court production.

Procedural fairness is integral to preserving faith in the rule of law and the criminal justice system. Arbitrarily infringing personal liberty strikes at the heart of constitutional freedoms. Mandatory procedural safeguards are not mere dispensable formalities but inalienable rights of an accused that courts must zealously protect.  As eloquently stated by the eminent jurist Justice VR Krishna Iyer,

"Procedural safeguards are the indispensable essence of liberty."

The practical ramifications of these landmark judgments are far-reaching. Investigating officers can no longer treat communicating arrest grounds as a hollow ritual. The Delhi High Court in Marfing Tamang reiterated the suggestions in Pranav Kuckreja v. State NCT of Delhi to incorporate arrest grounds in the arrest memo itself to ensure automatic compliance. Non-adherence to the CrPC/BNSS/PMLA mandate of prompt supply of grounds will invalidate the arrest. Courts must remain vigilant in upholding these safeguards.

The jurisprudence on procedural fairness in arrests will continue to evolve as courts interpret these salutary provisions in diverse factual matrices. The overarching constitutional philosophy of shielding personal liberty from arbitrary arrest must guide this discourse. The accused already confronts the might of the State in the criminal process. Procedural safeguards level the playing field and prevent a descent into lawlessness in law enforcement. Prompt communication of arrest grounds is an indispensable first step in this direction.

Gaurav Arora, Ujjwal Malhotra and Dhruv Wadhwa are Partners at AWM Legal.