The Crime Times - Issue 3 - Volume 1

Article by Vijay Pal Dalmia, Advocate, Supreme Court of India and Delhi High Court, Partner & Head of Intellectual Property Laws Division, Vaish Associates Advocates, India

Dear Readers,

Expecting someone to remember pages of oral explanations is unrealistic. By requiring written grounds, the Court has ensured that individuals can consult their lawyers, prepare their defense, and exercise their right to bail meaningfully. It’s a small procedural shift, but one that makes a world of difference to personal liberty.

Equally striking are the rulings on PMLA summons and warrants. The message is simple: appearing in court voluntarily is not custody, and non-bailable warrants cannot be issued mechanically. These decisions protect against overreach and reinforce that coercive measures must be the last resort, not the first reflex.

On another front, the courts have clarified that investigative tools like voice samples are about identification, not self-incrimination. It’s a reminder that technology and constitutional rights can coexist so long as the boundaries are respected.

Taken together, these judgments are reshaping the contours of criminal law enforcement in India. They don’t weaken the fight against money laundering or crime; instead, they strengthen it by ensuring that investigations stand on solid constitutional ground.

As we reflect on these developments, one thing becomes clear: the rule of law thrives when power is exercised with precision, not presumption. And in that balance between enforcement and liberty lies the true resilience of our justice system.

We trust you will find this issue both insightful and valuable. We welcome your feedback and suggestions to help us make this publication even better.

With Regards,

Vijay Pal Dalmia Editor-in-Chief

Mobile: +91 9810081079

Email: vpdalmia@vaishlaw.com

COMMUNICATION AND FURNISHING WRITTEN GROUNDS OF ARREST

The landmark judgment in Pankaj Bansal v. Union of India (2023INSC866) by the Supreme Court of India firmly establishes that the communication of grounds of arrest to an arrested person is not merely a procedural formality but a substantive constitutional and statutory safeguard that must be meaningfully discharged. The Court held that henceforth, written grounds of arrest must be furnished to the arrested person as a matter of course and without exception.

Article 22(1) of the Constitution provides the foundational protection against arbitrary arrest and detention. It states:

"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 Supreme Court emphasized that this constitutional provision guarantees a fundamental right to every arrested person. The mode of conveying information of the grounds of arrest must necessarily be meaningful so as to serve the intended purpose.

Reference may also be made to Section 50 Cr.P.C. (now Section 47 BNSS), which provides that every police officer or other person arresting any person without a warrant shall forthwith communicate to him the full particulars of the offence or other grounds for such arrest, as well as Section 50A Cr.P.C. (now Section 48 BNSS), which imposes an obligation on the arresting officer to inform a nominated person about the arrest and mandates that such information must be recorded in a register maintained at the police station.

Section 19(1) of the Prevention of Money Laundering Act, 2002 provides:

"If the Director, Deputy Director, Assistant Director or any other officer authorised in this behalf by the Central Government by general or special order, 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 has been guilty of an offence punishable under this Act, he may arrest such person and shall, as soon as may be, inform him of the grounds for such arrest."

The Court noted that Section 19(1) contains two critical components: (i) the requirement of recording in writing the reason to believe that the person is guilty of an offence, and (ii) the obligation to inform the arrested person of the grounds of arrest as soon as may be.

The Supreme Court articulated the higher purpose that the communication of grounds of arrest serves, and held:

"This being the fundamental right guaranteed to the arrested person, the mode of conveying information of the grounds of arrest must necessarily be meaningful so as to serve the intended purpose. It may be noted that Section

45 of the Act of 2002 enables the person arrested under Section 19 thereof to seek release on bail but it postulates that unless the twin conditions prescribed thereunder are satisfied, such a person would not be entitled to grant of bail. It is only if the arrested person has knowledge of these facts that he/she would be in a position to plead and prove before the Special Court that there are grounds to believe that he/she is not guilty of such offence, so as to avail the relief of bail."

The Court thus recognized that communicating grounds of arrest is intrinsically linked to the arrested person's ability to exercise the right to bail, which itself is a facet of personal liberty guaranteed under Article 21.

The Court examined Rule 6 of the Prevention of Money Laundering (The Forms and the Manner of Forwarding a Copy of Order of Arrest) Rules, 2005, which prescribes Form III as the format for the Arrest Order. This format explicitly mentions that the arrested person "has been informed of the grounds for such arrest." The Court found it incongruous that while this written format is followed uniformly across the country, the manner of informing arrestees varies. In some parts, written grounds are furnished, while in others, grounds are merely read out.

The Supreme Court articulated two primary reasons why written grounds of arrest should be furnished as a matter of course and without exception:

Evidentiary Certainty and Avoiding Disputes

The Court observed:

"Firstly, in the event such grounds of arrest are orally read out to the arrested person or read by such person with nothing further and this fact is disputed in a given case, it may boil down to the word of the arrested person against the word of the authorized officer as to whether or not there is due and proper compliance in this regard. Non-compliance in this regard would entail the release of the arrested person straightaway, as held in V. Senthil Balaji. Such a precarious situation is easily avoided, and the consequence thereof can be obviated very simply by furnishing the written grounds of arrest, as recorded by the authorized officer in terms of Section 19(1) PMLA, to the arrested person under due acknowledgement, instead of leaving it to the debatable ipse dixit of the authorized officer."

This reasoning recognises the practical reality that disputes about compliance can easily arise when grounds are merely communicated orally or permitted to be read.

Enabling Effective Exercise of Right to Seek Bail

The Court's second and more fundamental reason related to the constitutional objective underlying the communication of grounds:

"The second reason as to why this would be the proper course to adopt is the constitutional objective underlying such information being given to the arrested person. Conveyance of this information is not only to apprise the arrested person of why he/she is being arrested but also to enable such person to seek legal counsel and thereafter, present a case before the court under Section 45 to seek release on bail, if he/ she so chooses. In this regard, the grounds of arrest in V. Senthil Balaji (2024 INSC 739) are placed on record and we find that the same run into as many as six pages... it would be well-nigh impossible for either Pankaj Bansal or Basant Bansal to record and remember all that they had read or heard being read out for future recall so as to avail legal remedies. More so, as a person who has just been arrested would not be in a calm and collected frame of mind and may be utterly incapable of remembering the contents of the grounds of arrest read by or read out to him/her."

Based on the above analysis, the Supreme Court held:

"On the above analysis, to give true meaning and purpose to the constitutional and the statutory mandate of Section 19(1) of the Act of 2002 of informing the arrested person of the grounds of arrest, we hold that it would be necessary, henceforth, that a copy of such written grounds of arrest is furnished to the arrested person as a matter of course and without exception."

The Court explicitly overruled two High Court decisions that had held to the contrary. It declared that the decisions of the Delhi High Court in Moin Akhtar Qureshi v. Union of India (https://indiankanoon.org/doc/190585689/) and the Bombay High Court in Chhagan Chandrakant Bhujbal v. Union of India (https://indiankanoon.org/doc/138917199/) , which held that there was no requirement to furnish written grounds, "do not lay down the correct law".

Prabir Purkayastha v. State (NCT of Delhi)

The principles laid down in Pankaj Bansal were reiterated and reinforced by the Supreme Court in Prabir Purkayastha v. State (NCT of Delhi) (2024 INSC 414) . The Court held:

"The language used in Article 22(1) and Article 22(5) of the Constitution of India regarding the communication of the grounds is exactly the identical. Neither of the constitutional provisions require that the 'grounds' of 'arrest' or 'detention', as the case may be, must be communicated in writing. Thus, interpretation to this important facet of the fundamental right as made by the Constitution Bench while examining the scope of Article 22(5) of the Constitution of India would ipso facto apply to Article 22(1) of the Constitution of India insofar as the requirement to communicate the grounds of arrest is concerned. Hence, we have no hesitation in reiterating that the requirement to communicate the grounds of arrest or the grounds of detention in writing to a person arrested in connection with an offence or a person placed under preventive detention as provided under Articles 22(1) and 22(5) of the Constitution of India is sacrosanct and cannot be breached under any situation. Non-compliance of this constitutional requirement and statutory mandate would lead to the custody or the detention being rendered illegal, as the case may be."

Vihaan Kumar v. State of Haryana

The landmark decision in Vihaan Kumar v. State of Haryana (2025 INSC 162), delivered on February 7, 2025, further elaborated on the requirements of Article 22(1). Justice Abhay S. Oka, writing for the Bench, laid down comprehensive principles:

"Therefore, as far as Article 22(1) is concerned, compliance can be made by communicating sufficient knowledge of the basic facts constituting the grounds of arrest to the person arrested. The grounds should be effectively and fully communicated to the arrestee in the manner in which he will fully understand the same. Therefore, it follows that the grounds of arrest must be informed in a language which the arrestee understands. That is how, in the case of Pankaj Bansal, this Court held that the mode of conveying the grounds of arrest must necessarily be meaningful so as to serve the intended purpose."

The Court conclusively held that the requirement of informing grounds of arrest is "not a formality but a mandatory constitutional requirement".

Consequences of Non-Compliance

The Supreme Court in Vihaan Kumar articulated the severe consequences of failing to comply with Article 22(1):

"Non-compliance with Article 22(1) will be a violation of the fundamental rights of the accused guaranteed by the said Article. Moreover, it will amount to a violation of the right to personal liberty guaranteed by Article 21 of the Constitution. Therefore, non-compliance with the requirements of Article 22(1) vitiates the arrest of the accused. Hence, further orders passed by a criminal court of remand are also vitiated. Needless to add that it will not vitiate the investigation, charge sheet and trial. But, at the same time, filing of chargesheet will not validate a breach of constitutional mandate under Article 22(1)."

The Court further held that when a violation of Article 22(1) is established, "it is the duty of the court to forthwith order the release of the accused. That will be a ground to grant bail even if statutory restrictions on the grant of bail exist".

Additional Safeguard: Communication to Relatives

Justice Nongmeikapam Kotiswar Singh, in his concurring opinion in Vihaan Kumar, emphasised an additional dimension to the communication requirement under Section 50A of the CrPC:

"The purpose of inserting Section 50A of the CrPC, making it obligatory on the person making arrest to inform about the arrest to the friends, relatives or persons nominated by the arrested person, is to ensure that they would be able to take immediate and prompt actions to secure the release of the arrested person as permissible under the law. Hence, the requirement of communicating the grounds of arrest in writing is not only to the arrested person, but also to the friends, relatives or such other person as may be disclosed or nominated by the arrested person, so as to make the mandate of Article 22(1) of the Constitution meaningful and effective failing which, such arrest may be rendered illegal."

Pankaj Bansal v. Union of India recognizes several fundamental truths about the arrest process:

1. An arrested person is in a vulnerable psychological state and cannot be expected to remember voluminous grounds read out orally.
2. The ability to seek bail effectively depends on having written grounds available for reference and consultation with legal
3. Oral communication creates evidentiary disputes that can be easily avoided through written documentation.
4. The statutory scheme itself mandates a written recording of reasons for arrest, making written communication the logical corollary.

Reference may please also be made to the cases of Mohammed Ajmal Mohammad Amir Kasab @ Abu Mujahid v. State of Maharashtra, (2012) 8

S.C.R. 295 (Paras 484–488).

CAN PMLA BE INVOKED SOLELY BASED ON THE INVOCATION OF SECTION 120B (CRIMINAL CONSPIRACY) OF INDIAN PENAL CODE WHICH IS A SCHEDULED OFFENCE

Under Section 2(u) of the Prevention and Money Laundering Act, 2002 (“PMLA Act”), “proceeds of crime” has been defined as follows:

"proceeds of crime" means any property derived or obtained, directly or indirectly, by any person as a result of criminal activity relating to a scheduled offence or the value of any such property or where such property is taken or held outside the country, then the property equivalent in value held within the country or abroad.

The term “scheduled offence” has been defined under Section 2(y) of the PMLA Act as under: "scheduled offence" means:

Reference may please also be made to the cases of Mohammed Ajmal Mohammad Amir Kasab @ Abu Mujahid v. State of Maharashtra, (2012) 8

S.C.R. 295 (Paras 484–488).

1. the offences specified under Part A of the Schedule; or
2. the offences specified under Part B of the Schedule if the total value involved in such offences is one crore rupees or more; or
3. the offences specified under Part C of the Schedule.

The PMLA Act provides a schedule that contains three Parts, listing various offences. These offences are also referred to as "predicate offences."

Section 3 of the PMLA Act defines the offence of money laundering as any direct or indirect attempt by a person to indulge in, knowingly assist, knowingly be a party to, or be actually involved in the concealment, possession, acquisition, use, projection as untainted property, or claiming as untainted property of the proceeds of crime.

Therefore, if proceeds are generated as a result of a scheduled offence and such proceeds are being laundered or there is an attempt to launder them, the offence of money laundering is being committed.

In Part A of the Schedule of the PMLA Act, an offence of criminal conspiracy under Section 120B of the Indian Penal Code, 1860 (“IPC”) is listed.

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