Back
CALCUTTA HIGH COURT
Bivas Pattanayak, J.
In the matter of: Joyatu Mondal – Petitioner
CRM (DB) 1012 of 2025
Decided on 8.5.2025
For the Petitioner:Mr. Anirban Tarafdar Mr. Souma Bhattacharya, Mr. Atanu Bhattacharya, Ms. Rupsa Ganguli, Mr. Sayak Kumar, Ms. Anju Barik, Mr. Debjit Mukherjee, Advocates
For the State:Mr. Debasish Roy, Ld. P.P., Mr. Arindam Sen, Ms. Pushpita Saha, Advocates
For the De-facto Complainant:Mr. Manabendranath Banerjee, Ms. Tapasi Das, Advocates
IMPORTANT POINT
Arrest of a person must be carried out only after observing all legal formalities and directions passed by Apex Court.
Headnote:
Criminal Procedure Code, 1973 – Section 41[Section 35 of BNSS, 2023] – Arrest – Legality of – It is submitted that grounds of arrest has not been communicated to petitioner who is said to be a juvenile – Arrest memo clearly shows that dictum of Apex Court in D.K. Basu [AIR 1997 SC 610] of making arrest in presence of at least one witness has not been followed by Investigating Officer – There is a clear infraction of direction passed by Apex Court in D.K. Basu – Investigating officer has primarily failed to satisfy his action of non-observation of direction of Apex Court – Petitioner to be released from custody forthwith after observing all legal formalities – Liberty granted to petitioner to file appropriate application before Trial Court for determination of juvenility of petitioner in accordance with law at appropriate stage. (Paras 3, 7, 8 and 12)
Result: Bail Application allowed.
JUDGMENT
The Investigating Officer is present in Court. He files his explanation in compliance to the order dated 8th May, 2025, which is taken on record.
2. Learned Advocate for the petitioner submits that the petitioner at the time of incident was a juvenile. The grounds of arrest has not been communicated to the petitioner in compliance to the decision of the Hon’ble Supreme Court passed in Prabir Purukayastha -versus- State (N.C.T. of Delhi), reported in (2024) 8 SCC 254. Relying on the decision of the Hon’ble Supreme Court passed in D.K. Basu -versus- State of West Bengal, reported in AIR 1997 SC 610, he submits that at the time of arrest of the arrestee the police officer has to prepare the memo of arrest and such memo shall be attested by at least one witness who may be either a member of the family of the arrestee or a respectable person of the locality from where the arrest is made and it shall also be countersigned by the arrestee and shall contain the time and date of arrest. Though the arrest memo has the counter signature of the arrestee but it does not have the signature of any member of the family of the arrestee or any respectable person of the locality which is an infraction of the proposition as laid down by the Hon’ble Apex Court.
3. The learned Public Prosecutor submits that as far as the issue relating to informing the grounds of arrest is concerned, the same was directed in respect of proceedings initiated by the Enforcement Directorate where the attachment of properties of the accused were involved. He informs the Court that the question whether in all cases the grounds of arrest are to be informed is under consideration before the Hon’ble Supreme Court in Mihir Rajesh Shah -versus- The State of Maharashtra & Anr [Special Leave to Appeal (Crl) No. 17132/2024], the decision of which is reserved by the Hon’ble Supreme Court. However, he candidly submits that as the arrest memo clearly shows that the dictum of Hon’ble Apex Court in D.K. Basu (supra) of making arrest in presence of at least one witness has not been followed by the Investigating Officer, rule has to be issued against him and at the same time direction be issued to the appropriate authority to initiate a disciplinary proceedings against the said officer. He also indicates that the accused in the present case be released since the arrest is per se illegal. The grant of bail to the accused would not be the correct recourse as the detention appears to be illegal.
4. So far as the issue regarding the intimating/informing the grounds of arrest to the accused at the time of arrest is concerned, since the aspect has been reserved by the Hon’ble Supreme Court as has been informed by the learned Public Prosecutor in Mihir Rajesh Shah (supra), this Court recuse from making any observation in this regard.
5. Upon perusal of the memo of arrest, it is found that the Column No.10 “signature of the witness (either a number of family) or a respectable person of the locality” is kept blank. Needless to mention that in the forwarding report dated 10th August, 2024, the Investigating Officer while producing the accused has stated before the learned Trial Court that the accused has been arrested after observing all legal formalities.
6. It would be profitable to reproduce the relevant Paragraph of the decision of Hon’ble Supreme Court in D.K. Basu (supra) as hereunder:-
“36(2). That the police officer carrying out the arrest of the arrestee shall prepare a memo of arrest at the time of arrest and such memo shall be attested by at least one witness, who may be either a member of the family of the arrestee or a respectable person of the locality from where the arrest is made. It shall also be countersigned by the arrestee and shall contain the time and date of arrest.”
7. From the aforesaid materials, it is found that there is a clear infraction of the direction passed by the Hon’ble Apex Court in D.K. Basu (supra). The investigating officer has primarily failed to
