Drishti Bhatia
Shushrut Devadiga
The Supreme Court of India, in the case of Pankaj Bansal v. Union of India, passed a pertinent judgment regarding the safeguards available against an arrest made by the Enforcement Directorate (“ED”) under the Prevention of Money Laundering Act, 2002 (“PMLA”).
Inter alia, the Supreme Court ordered the ED to provide the arrested person with “written grounds of arrest” while exercising its powers under S. 19 of the Act. This safeguard had been missing in the language of the section and in cases that have upheld its constitutionality (see here). Resultantly, the practice of providing written grounds by the ED was noted to be inconsistent and erratic wherein the grounds of arrest were provided in writing to the accused in some parts of the country, while in other parts of the country, it was merely read out to them orally or the accused was only allowed to read it in the presence of the officials. However, this practice made it practically impossible for the accused to effectively remember the grounds of his arrest, especially when such grounds are voluminous. This would prejudice his ability to meaningfully and adequately prepare for his defence during his bail application as well as further trial as has been noted by Sr. Advocate Abhishek Manu Singhvi.
This judgment has clarified the law and essentially brought about transparency and accountability in the exercise of powers by the ED, especially at a time when it is endowed with sweeping powers relating to arrest, search and seizure and there have been allegations about the political weaponisation of the ED. This is evident from recent data, which showed that of the 121 raids, investigations, questionings and arrests procedures initiated by the ED against political persons since 2014, 115 were against members of the opposition. Compare this to data from 2004-2014, where merely 14 out of the 26 persons probed by the agency were from the opposition. Infact, ED’s arbitrary exercise of power was also noted by a Special PMLA Court Bench, which, while granting bail to a Prominent Shiv Sena Member. The Court noted that the ED had not made the arrest in accordance with S. 19 of the PMLA, 2002 and it also stated that “his arrest is nothing but a witch-hunt and annihilation of valuable rights.” In light of ED’s conduct, an express judicial mandate regulating the ED’s exercise of power was a need of the hour,
This post advocates the validity of the Supreme Court’s decision on the grounds that (i) it aligns with Article 22 of the Indian Constitution which makes it mandatory for a person to be informed about the grounds of his arrest and (ii) similar mandates have existed in India’s Criminal Jurisprudence and there are no reasonable grounds to exempt the ED from such mandate.
Deconstructing Section 19 of the PMLA and the safeguard of “informing the grounds of arrest” to the accused
S. 19 of the PMLA provides the power of arrest to the ED, which it may exercise upon the fulfilment of certain conditions. S. 19(1) stipulates that an if officer “has on the basis of material in his possession, reason to believe (the reason for such belief to be recorded in writing” that any person is guilty of an offence under the PMLA, “he may arrest such person and shall, as soon as may be, inform him of the grounds for such arrest.” S. 19(2) further requires the arresting officer to forward the order of arrest and the material in his possession to the Adjudicating Authority and S. 19(3) mandates the production of the arrested person before the Magistrate within 24 hours of his arrest.
While S. 19 mandates that the accused be informed of the grounds of his arrest, it remains silent on the precise mode of conveying such grounds. On this very rationale, the Bombay High Court in Chhagan Chandrakant Bhujbal v. Union of India held that, considering the lack of statutory mandate to provide the written grounds of arrest to the accused, oral communication of such grounds would be sufficient and in compliance with S. 19 of the Act. Furthermore, it was held that there was no statutory requirement to inform such grounds immediately upon the individual’s arrest.
Moreover, the Delhi High Court in Moin Akhtar Quereshi v. Union of India differentiated between the phrase ‘inform the grounds of arrest’ used in Article 22(1) and ‘communicate the grounds of detention’ used in Article 22(5). It concluded that the former does not cast an obligation to provide the grounds of arrest in writing. The Court based its decision on the rationale that S. 19 of the PMLA and Art. 22(1) provided a safeguard of production of the arrestee before a Magistrate within 24 hours who would ensure the validity of the arrest. An equivalent safeguard is not available in preventive detention. Article 22(5) only grants the right to detainees to present their against their detentions at a later stage. Therefore, it becomes imperative to communicate the grounds of arrest in writing so that he can make an effective representation.
Thus, the Court concluded that the legislature deliberately used the term ‘informed’ instead of ‘communicated’ in Section 19 of the Act. As a result, the transmission of information regarding the grounds of arrest, whether orally or by reading, was deemed valid.
Deciphering the law regarding the procedure of arrest in light of recent Supreme Court decisions
The Supreme Court in Vijay Madanlal Choudhary v. Union of India upheld the constitutional validity of several provisions of the PMLA, including S. 19. The Court held that S. 19 contained inbuilt safeguards which ensured non-arbitrariness and accountability in the conduct of the authorised officers while making the arrest. The Court also created a distinction between an Enforcement Case Information Report (“ECIR”) and a First Information Report (“FIR”) and treated the ECIR as an internal document, and thus, not liable to be disclosed to the accused. The Court further went on to decide that if a person was ‘sufficiently informed’ of the grounds of his arrest, it would not violate Article 22 of the Constitution. Yet, the Supreme Court did not prescribe the manner in which such grounds are to be conveyed and thus, the ambiguity persisted.
Recently, the Supreme Court in V. Senthil Balaji v. Union of India, also upheld that non-compliance with the provisions of S. 19 would vitiate the arrest itself. It further held that the Magistrate is duty-bound to ensure conformity with S.19 when an application for the remand of the accused is made under S. 167 of the Cr.PC and that a remand resulting from an unlawful arrest would also fail. Still, the Court did not specify how the accused was to be informed of such grounds.
The lacunae formed around this vagueness regarding the procedure has been exploited by the ED to circumvent established constitutional norms by merely providing the grounds of arrest to the accused verbally. This is visible through the arguments of the ED in Ram Kishor Arora v. Directorate of Enforcement and Anr., wherein it submitted that the Senthil Balaji case merely required the information to be served, which could have been done orally.
Clarification provided by the Supreme Court in the Pankaj Bansal’s decision
The Supreme Court in Pankaj Bansal’s decision finally provided much-necessitated clarity on the mode of communication of the grounds of arrest to the accused. In principle, it has held that the communication of the grounds of arrest must be made to the arrestee in writing to ensure compliance with Article 22 of the Constitution. The arrested person has a constitutional and statutory right to be informed about the grounds of his arrest at the time of his arrest, and such right can only be fulfilled if the grounds are recorded in writing. The Court further noted that a written record of the grounds of arrest is necessary to also enable the person to know the basis of the officers’ ‘reasons to believe’ the guilt of the arrested person and thus, enable him to prepare an effective defence and seek legal counsel if he chooses to apply for bail. Lastly, the Court held that the decisions of the Delhi High Court and the Bombay High Court in Moin Akhtar Qureshi and Chhagan Chandrkant Bansal do not lay down the law correctly and are set aside.
Justification the Court’s mandate on grounds of compliance with Article 22 of the Constitution
One of the cardinal tenets relied upon by the Supreme Court was that of upholding the rights of an arrestee under Article 22 of the Constitution. The Court emphasized that adherence to Article 22 requires that the method of conveying the grounds of arrest should be meaningful; in line with the spirit of the law; and should serve the intended purpose of enabling effective representation during bail procedures and when seeking legal assistance. The PMLA, by way of S. 45 of the Act, places stringent conditions for granting bail. Without being furnished with written grounds for arrest, an accused will find it very difficult to get bail.
When an arrest is made by an investigative agency, it becomes imperative that each action undertaken by such agency, especially those which have the effect of curbing an individual’s personal liberty, is taken after observing utmost standards of transparency and fair play. If the grounds of arrest are informed orally/allowed to be read by the accused, the question of statutory and constitutional compliance may simply boil down to the word of the accused vis-a-vis with that of the arresting officer. If grounds of arrest are provided in writing, there is proof of such compliance, thus increasing transparency and accountability.
Article 22 postulates a duty upon the State to conduct a fair and impartial investigation against any person, and serving written grounds of arrest is, therefore, essential to comply with the constitutional mandate. Therefore, it can be observed that the Apex Court attempts to restrain the arbitrary exercise of power by the Investigative agency and ensure equity in the balance of powers between the accused and the agency.
Justification the Court’s decision on grounds of compliance with the general Criminal Justice System
Under general criminal law jurisprudence, an accused has a right to obtain a copy of an FIR lodged against him at the time of his arrest. This was upheld by the Apex Court in Youth Bar Association v. Union of India wherein, the Court also went on to order that the copies of an FIR shall be uploaded on the police/the official government website within 24 hours of it being lodged. The rationale behind it is that when the process of criminal law puts the liberty of an individual at stake, he must be furnished with all the necessary information that would enable him to effectively prepare his defence and thus, protect his liberty.
While the Vijay Madanlal Choudhary case has upheld the distinction between an ECIR and an FIR, such distinction should not act as a hindrance to fulfilling the fundamental principle of criminal law i.e. effectively communicating the grounds of arrest to the accused. While this aspect is currently under review, the current position of law as on date remains unchanged. Moreover, the Supreme Court in the present judgment has not mandated the accused to be furnished with a copy of the ECIR, but merely some documentation to provide the grounds of arrest in writing and thus, is still in alignment with the Madanlal Choudhary case.
Legal Safeguards Tested: Ram Kishore Arora departure from Pankaj Bansal
In Ram Kishore Arora v. Directorate of Enforcement, an attempt was made by the ED to bypass the Pankaj Bansal’s decision on the grounds that the signature of the arrestee was obtained after he was allowed to read the grounds of arrest provided. The ED argued that acknowledgment of the arrestee ensured compliance with Art. 22 and would then make the Pankaj Bansal decision inapplicable. The Court found merit in the ED’s argument and held that due compliance with S. 19 of the PMLA and Art. 22 of the Constitution could be gathered from the signature of the arrestee. The Court further ruled that the Pankaj Bansal decision could not be applied retrospectively and thus, would only be applicable to arrests made after the pronouncement of that decision.
It becomes imperative to note that the Supreme Court in the Pankaj Bansal decision had categorically held that the grounds of arrest must be provided to the arrestee in writing “without any exceptions”. The judgment left no scope for carving out any circumstance wherein allowing the accused to read the grounds of his arrest would mean sufficient compliance with the safeguards of Art. 22. Thus, if this practice of the ED is continued to be granted validation, it would result in a significant weakening of the Pankaj Bansal decision. This also goes against the well-established position that if the law requires something to be done in a particular manner, deviation from the same has no validity in the eye of law. Thus, it is opined the Ram Kishore Arora judgement has incorrectly interpreted the Pankaj Bansal judgement to carve out an exception which did not originally exist.
Concluding Remarks
The Apex Court’s decision in the Pankaj Bansal’s case, not only aligns with Article 22 of the Constitution but also reinforces the cardinal principles of transparency and fairness in the criminal legal framework. Even though this judgement is specific to the PMLA, it nonetheless carries broader implications for general criminal law jurisprudence by upholding individual rights and liberties and also ensuring investigative accountability. However, the Supreme Court in the Ram Kishore Arora judgement has muddied the waters. By accepting the statutory and constitutional validity of the procedure used by the ED, the Court has deviated from its prior unequivocal stance in Pankaj Bansal case. Therefore, further vigilance and legal scrutiny is required to ensure the continued efficacy of the Pankaj Bansal. The protection and balance brought forth by the judgement is pertinent, considering the broader political landscape, where questions have been raised about the apparent misuse of PMLA. This step to restrain the arbitrary exercise of power by the agency is required to rein in its abuses.
Drishti Bhatia and Shushrut Devadiga are fourth-year students at Kirit P. Mehta School of Law, Mumbai.
The opinions expressed in the Blog are personal to the authors. The University does not subscribe to the views expressed in the article/blog and does not take any responsibility for the same.
