Warrant Of Arrest Bereft Of Substance Of Penal Charges Violative Of Article 22 Of Constitution: Calcutta High Court

The Calcutta High Court has held that an arrest warrant bereft of substance of penal charges is violative of Sections 75 and 78(2) of the Code of Criminal Procedure and Article 22 of the Constitution of India.

The Court was considering a Petition by the CBI against an order whereby the Magistrate rejected the prayer for transit remand of the accused and granted interim bail to him.

The Bench of Justice Suvra Ghosh held, "The memo of arrest discloses the penal sections under which the opposite party has been charged as well as reasons for arrest. Therefore notification of substance of warrant was made to the opposite party in compliance with section 75 of the Code of Criminal Procedure. The arrest memo was accompanied by the permanent warrant of arrest and the memo bears the signature of the father of the arrestee/opposite party. The arrest was made in compliance with the provisions of the Code of Criminal Procedure and should not have been faulted."

The Petitioner was represented by DSGI Rajdeep Majumder while the Respondent was represented by Advocate Sounak Mondal.

Facts of the Case

Counsel for the Petitioner submitted that a warrant of arrest was issued against the Petitioner on 21st January, 2019 and he was arrested in Kolkata on 29th March, 2025 on the strength of the said warrant. The memo of arrest discloses the penal sections under which the opposite party was charged as well as reasons for arrest and therefore notification of substance of warrant was made to the opposite party in compliance with Section 75 of the Code of Criminal Procedure. It was submitted that the arrest memo was accompanied by the permanent warrant of arrest and the memo bears the signature of the father of the arrestee and the arrest was made in compliance with the provisions of the Code of Criminal Procedure and should not have been faulted.

Counsel for the Respondent, on the other hand, submitted that grounds of arrest were not informed to him in terms of Article 22 of the Constitution of India and he was not in a position to defend himself. It was further submitted that the Accused was released on interim bail and shall appear before the concerned Court in terms of the direction of the Magistrate. It was averred that the warrant of arrest was issued in violation of Article 22 of the Constitution of India as well as Section 75 of the Code of Criminal Procedure and is invalid in the eyes of law, and the opposite party has been rightly granted interim bail.

Reasoning By Court

The Court at the outset referred to the Supreme Court's decision in Prabir Purkayastha v/s. State (NCT of Delhi) wherein the difference between “reasons for arrest” and “grounds of arrest” was established.

"Reasons for arrest in the arrest memo are purely formal parameters whereas grounds of arrest contain all such details in hand of the investigating officer which necessitates the arrest of the accused. The Hon’ble Supreme Court has held that absence of communication of grounds of arrest in writing to the accused, vitiates the arrest and is invalid in the eye of law," the Court observed.

The Court went on to distinguish between a warrant of arrest and a memo or arrest.

"As observed by the Hon’ble Supreme Court, the reasons for arrest should reflect the parameters viz. to prevent the accused person from committing any other offence; for proper investigation of the offence; to prevent the accused person from causing the evidence of the offence to disappear or tampering with such evidence in any manner; to prevent the arrested person from making inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to the investigating officer. These reasons are absent in the memo of arrest. The warrant of arrest only refers to the penal sections and does not notify the substance of the warrant in terms of section 75/78(2) of the Code of Criminal Procedure to the person to be arrested. Even if it is held that the opposite party was given an opportunity to read the warrant of arrest, he was still not equipped with the knowledge of the substance thereof in order to defend himself since the warrant is bereft of such substance. The memo of arrest follows the warrant of arrest and in view of violation of the constitutional mandate in issuing the warrant of arrest, the memo of arrest which is devoid of the reasons and grounds of arrest cannot be said to be in accordance with law," the Court observed.

The Petition was accordingly dismissed.

Cause Title: Central Bureau of Investigation vs. Rajnikant Ojha

Appearance:

Petitioner: DSGI Rajdeep Majumder, Special Public Prosecutor Amajit De, Advocate Pritam Roy, Advocate Aroshi Rathore

Respondent: Advocate Sounak Mondal, Advocate Sreyash Kumar Singh

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