Orissa High Court: Ex-MLA Bikram Panda's arrest illegal, bail granted for non-supply of written grounds

In a significant ruling, the Orissa High Court granted bail to former MLA Bikram Panda, holding that his arrest was illegal due to the police's failure to communicate written grounds of arrest as mandated under Article 22(1) of the Constitution read with Sections 47, 48, and 62 of the Bharatiya Nagarik Suraksha Sanhita, 2023. Justice Aditya Kumar Mohapatra also clarified that the constitutional right to be informed of grounds of arrest is not prospective and must be complied with regardless of when the arrest occurred.

The Arrest and the Allegations

Bikram Panda, a former member of the Odisha Legislative Assembly, was arrested on October 22, 2025, in connection with the murder of advocate Pitabash Panda, a sitting member of the Odisha State Bar Council. The prosecution alleged that Panda was the prime conspirator in a contract killing executed by hired assassins from Bihar. He had been in judicial custody since his arrest and was denied bail by both the trial court and the sessions court, prompting him to move the High Court.

The Core Legal Question: Was the Arrest Constitutional?

Panda's senior counsel, Mr. Ashok Kumar Parija and Mr. Subir Palit, argued that the arrest memo contained only a vague entry—“In the strength of above noted case”—in the column reserved for grounds of arrest. They contended that no written grounds were ever supplied to Panda or his family, violating the mandatory safeguards under Article 22(1) and the BNSS. They relied on the Supreme Court’s decisions in Vihaan Kumar v. State of Haryana and Mihir Rajesh Shah v. State of Maharashtra , which hold that grounds of arrest must be communicated in writing to make the right meaningful.

The prosecution, represented by Additional Government Advocate Mr. Partha Sarathi Nayak, countered that the grounds were orally communicated in Odia and that Panda refused to sign the arrest memo. It was argued that the petitioner could not take advantage of his own refusal and that the arrest was lawful. The State also contended that the requirement of written grounds, as clarified in Mihir Rajesh Shah , applies prospectively only.

Court Rejects Prospective Application Argument

Justice Mohapatra conducted a thorough analysis of Article 22(1) and the corresponding BNSS provisions. He observed that the requirement to inform the arrestee of the grounds of arrest is a fundamental right, not a mere procedural formality. The court specifically disagreed with the coordinate bench’s view in Akash Kori @ Kasua v. State of Odisha that the Mihir Rajesh Shah ruling on written grounds operates only prospectively.

“The intention of the Hon'ble Supreme Court, while making the observation in para-68 of Mihir Rajesh Shah , was clearly to make it mandatory on the part of the Arresting Officers/Agencies to follow the conclusion drawn in para-66 thereof, while arresting a person henceforth. Thus, the observation in para-68 does not curtail or take away the fundamental right of an arrestee to be communicated with the grounds of arrest as has been guaranteed under the constitution as well as under the statute.”

The court emphasized that the constitutional mandate existed even before the Supreme Court’s clarification, and non-compliance renders the arrest illegal.

Failure to Prove Compliance

Scrutinizing the arrest memo and case diary, the court found no contemporaneous document recording the specific grounds of arrest. The memo’s entry “In the strength of above noted case” was held to be wholly inadequate. The court noted that the prosecution did not produce any independent record to show that written grounds were prepared and communicated. The claim that the father of the petitioner was informed telephonically was also rejected as insufficient compliance with Article 22(1).

Key Observations

Justice Mohapatra quoted extensively from Vihaan Kumar and Mihir Rajesh Shah , underscoring the following principles:

  • The requirement of informing a person arrested of grounds of arrest is mandatory.
  • The grounds must be communicated in writing in a language the arrestee understands.
  • Non-compliance vitiates the arrest and subsequent remand.
  • When violation is alleged, the burden lies on the arresting agency to prove compliance.
  • Filing of a charge sheet does not validate a breach of constitutional mandate.

The Verdict and Directions

The court declared that the arrest of Bikram Panda was vitiated due to non-compliance with Article 22(1) and ordered his release on bail. However, it clarified that this finding does not affect the merits of the charge sheet or the pending trial. The release was made subject to conditions, including that Panda shall not threaten or influence the victim’s family or prosecution witnesses.

In a notable direction, the court ordered the Registry to send a copy of the judgment to the Additional Chief Secretary, Home Department, and the Director General of Police, Odisha, with a directive to circulate the Supreme Court guidelines on arrest to all police stations in the state. The court lamented the continued failure of police administration to comply with mandatory arrest procedures despite clear judicial pronouncements.

Implications

The ruling reinforces that the constitutional right to be informed of grounds of arrest is absolute and not subject to prospective application of judicial clarifications. It serves as a stern reminder to investigating agencies that procedural shortcuts in arrests will not be tolerated, and that any violation of fundamental rights will result in the arrested person being set free, even in serious cases involving murder and conspiracy.