IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH

283 CRWP No.2396 of 2025 (O&M)

Date of decision: 11.03.2025 Gurkaran Singh Dhaliwal ....Petitioner Versus State of Punjab and another ....Respondents CORAM: HON'BLE MR. JUSTICE HARPREET SINGH BRAR Present: Mr. R.S. Rai, Senior Advocate (through Video Conferencing), Mr. Vinod Ghai, Senior Advocate Mr. Amit Jhanji, Senior Advocate with Mr. Gautam Dutt, Advocate, Mr. Harlove Singh Randhawa, Advocate, Mr. Shiv Kumar Sharma, Advocate, Mr. Satinder Pal Singh, Advocate, Mr. Jashan Bains, Advocate, Mr. Arjun S. Rai, Advocate, Mr. Gursher Singh, Advocate, Mr. G.S. Dhillon, Advocate, Mr. Arnav Ghai, Advocate, Mr. Dhruv Trehan, Advocate and Mr. Shashank Shekhar Sharma, Advocate for the petitioner.

Mr. Subhash Godara, Addl. A.G., Punjab and Mr. Deeepender Singh, Addl. A.G., Punjab.

HARPREET SINGH BRAR J. (Oral)

1. The present criminal writ petition has been filed under Article 226 of the Constitution of India read with Section 528 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (hereinafter ‘BNSS’) seeking the following reliefs:

(i) issuance of a writ in the nature of Habeas Corpus, for release of detenu – Pushpinder Pal Singh Dhaliwal, father of the petitioner.

(ii) declaration of the arrest of the detenu – Pushpinder Pal Singh Dhaliwal, father of the petiti oner, as illegal.

FACTUAL MATRIX

2. Briefly, the facts, as per pleadings, are that in a social media post (Annexure P-1), one Sunanda Sharma, a professional artist, had leveled false allegations against the detenu qua criminal breach of trust, cheating, criminal misappropriation of property, wrongful restraint, defamation, intimidation and harassment. Consequently, on 08.03.2025, at about 7:30 PM, the detenu, a music producer, was picked up from his house in Mohali in a police car. Neither was an FIR registered against the detenu nor an arrest memo or a notice under Section 41-A, Code of Criminal Procedure, 1973 (hereinafter ‘Cr.P.C.’) were served on him. The detenu is currently being detained at Police Station Mataur, S.A.S.

Nagar.

CONTENTIONS

3. Learned senior counsel for the petitioner, inter alia, contends that pursuant to the appointment of the Warrant Officer by this Court, he reached the concerned Police Station at 12:40 AM on 09.03.2025. At that time, no arrest memo had been prepared or issued in compliance with the mandatory provisions of Section 50 of Cr.P.C (now Section 47 of BNSS, 2023). Admittedly, FIR No.39 dated 08.03.2025, registered under Sections 406, 420, 465, 467, 468, 341, 500, and 506 of the Indian Penal Code (hereinafter ‘IPC’), was lodged only after the order passed by this Court. As per the order dated 08.03.2025, it was directed that in the event the alleged detenu was found in the illegal custody of respondent No.2, he should be released forthwith. However, it was only at 02:26 AM on 09.03.2025 that a copy of the FIR along with the arrest memo was handed over to the Warrant Officer. It is vehemently argued that the FIR was registered merely as an afterthought to justify the illegal detention. Further, there is no mention in the FIR of any DDR entry, thereby rendering the entire process contrary to the order of this Court.

4. Moreover, the proceedings also stand vitiated as no notice under Section 35(3) of BNSS was issued, which has been held to be mandatory by the Hon’ble Supreme Court in Arnesh Kumar v. State of Bihar, (2014) 8 SCC 273, and Satender Kumar Antil v. CBI, (2022) 10 SCC 51.Additionally, the grounds of arrest were not supplied to the father of the petitioner, demonstrating an attempt by the jurisdictional police authorities to overreach the process of law. Even the Warrant Officer was not provided with the relevant DDRs. Learned senior counsel also placed reliance upon the judgment rendered by the Hon’ble Supreme Court in Vihaan Kumar vs. State of Haryana and another 2025 SCC OnLine SC 269, wherein it has been categorically held that not communicating the grounds of arrest nullifies the entire proceedin