In an extremely significant ruling which will have far reaching implications in safeguarding the fundamental rights of citizens and a great boost to freedom of speech and expression the Supreme Court on 15 May extended the procedure safeguards to arrests under the stringent provisions of the controversial Unlawful Activities ( Prevention ) Act ( UAPA) 1967 and ordered the release of News click founder editor Prabir Purkayasta arrested under the Act. The Supreme Court held that the arrest and remand of the editor under UAPA was ” invalid ” as grounds of arrest was not given to him or his counsel in writing before the arrest.
A bench comprising Justices B.R .Gavai and Sandeep Mehta ordered that Prabir Purkayasta be released subject to him furnishing surety and bail bond.The court gave the order pointing out that a copy of the remand application was not provided to Purkayasta thereby violating principles of natural justice.
” Copy of the remand application was not provided to the appellant . This vitiates the arrest of the appellant following Pankaj Bansal case ” the order said.
” Though we would have released him without surety , but since chargesheet has been filed , we release him with surety and bail bond , ” the order stated
During the hearings the judges had raised questions on how the remand hearing was conducted without informing Purkayast’s lawyer in advance and in effect, without an audience. The court had also observed that the remand order was passed before Purkayasta or his counsel were informed as to why he was arrested.
The Court had also grilled the counsel for Delhi Police as to why no advance notice was given to Purkayast’s lawyer about his remand.
Purkayasta was arrested on 3 October 2023 under UAPA following series of raids on the offices of Newsclick and journalists associated with the news organization. The arrest was made in the wake of allegations in an article in the New York Times which alleged that NewsClick was being paid huge sums to carry on Chinese propaganda. NewsClick Human Resources head Amit Chakraborty was also arrested in the case.
According to the First Information Report NewsClick allegedly received crores of rupees in foreign funds to ” disrupt the sovereignty , unity and security of India.” The charges against Purkayasta included that NewsClick tried to show Kashmir and Arunachal Pradesh as not parts of India , descrediting the the government’s fight against COVID 19 , funding the farmers agitation against the now withdrawn controversial farm laws and putting up a spirited defence of legal cases against Chinese telecom companies.
After their arrest both Purkayasta and Chakraboty moved the Delhi High Court challenging their arrest and remand under UAPA.They argued that the arrest and remand were illegal because they were not given the grounds for the arrests in writing in violation of Supreme Court order in the Pankaj Bansal case .
The Delhi High Court , however rejected the argument and held that the Pankaj Bansal judgment is not applicable to arrests made under the UAPA leading to the appeal in the Supreme Court.The Supreme Court quashed and set aside Purkayast’s arrest , the remand order of 4, October 2023 and the Delhi High Court order of 13 October 2023 that upheld the arrest.
Clarifying the scope of the Court’s ruling on 3 October 2023 in the Pankaj Bansal vs Union of India case where it said that the Enforcement Directorate ( ED ) should furnish the grounds of arrest under the Prevention of Money laundering Act ( PMLA) in writing to an accused at the time of arrest , the bench said this should ” APPLY IN ALL CASES OF ARREST”.
” We find that the provision regarding the communication of the grounds of arrest to a person arrested contained in in Section 43 B (1) of the UAPA is verbatim the same as that in Section 19 (1) of the PMLA .” the order pointed out.
” Upon careful perusal of the statutory provisions …we find that there is no significant difference in the language employed in Section 19(1) of the PMLA and Section 43’B(1) of the UAPA which can persuade us to take a view that the interpretation of the phrase ” inform him of the grounds for such arrest ” made by the court in the case of Pankaj Bansal …should not be applied to an accused arrested under the provisions of the UAPA.”
In this context the Supreme Court pointed out that Article 22 (1)of the Constitution says ” no person who is arrested shall be detained in custody without being informed , as soon as may be , of the grounds for such arrest nor shall he be denied the right to consult , and to be defended by a legal practitioner of his choice.”
The order further said that ” the purpose of informing to the arrested person the grounds of arrest is salutory and sacrosanct in as much as , this information would be the only effective means for the arrested person to consult his Advocate; oppose the police custody remand and to seek bail. Any other interpretation would be tantamount to diluting the sanctity of the fundamental right guaranteed under Article 22(1) of the Constitution of India.”
The commenting on the lapses in procedure followed by the Delhi Police in this case the Supreme Court said that the copy of the FIR was provided to Shri Akashdeep Khurana , learned Advocate representing the accused for the first time on 5 October 2023 and hence till the time of being deprived of liberty , no communication was made to the appellant regrading the grounds on which he had been arrested. Thus by the time the Advocate engaged by the accused appellant had been informed , the order of remand had already been passed. Unquestionably , till that time the grounds of arrest had not been conveyed to the appellant in writing ” the order said .
The Supreme Court further said that the arrest memo only contains the reasons for arrest but not the grounds of arrest . ” There is a significant difference between the phrases ‘ reasons for arrest ‘ and ‘ grounds of arrest ‘ The reasons for arrest are formal parameters .
” These reasons would commonly apply to any person arrested on charge of a crime whereas the ‘grounds of arrest’ would be required to contain all such details in hand of the Investigating Officer which necessitated the arrest of the accused. Simultaneously , the grounds of arrest informed in writing must convey to the arrested accused all basic facts …the ‘ grounds of arrest ‘ would invariably be personal to the accused and cannot be equated with the ‘ reasons of arrest ‘ which are general in nature ” the court said.
Ends…
