Orissa High Court

Rajendra Naik & vs State Of Odisha ... Opposite Party on 11 November, 2025

Author: G. Satapathy

Bench: G. Satapathy

       IN THE HIGH COURT OF ORISSA AT CUTTACK
                     BLAPL No. 6872 of 2025

   (In the matter of application under Section 483 of the
   BNSS, 2023).

   Rajendra Naik &                     ...                  Petitioners
   Another
                                     -versus-
   State of Odisha                     ...              Opposite Party

   For Petitioner                :         Mr. S.N. Mishra, Advocate

   For Opposite Party            :         Mr. R.B. Mishra, Addl. PP

  CORAM:
                      JUSTICE G. SATAPATHY

DATE OF HEARING & DATE OF JUDGMENT:11.11.2025 (ORAL)


G. Satapathy, J.

1. This is a bail application U/S.483 of BNSS

by the petitioners for grant of bail in connection with

Th. Rampur P.S. Case No.04 of 2025 corresponding

to C.T. Case No.05 of 2025 pending in the file of

learned J.M.F.C., Th. Rampur, Kalahandi, for

commission of offences punishable U/S.103(1) of

BNS, on the allegation of committing murder of

deceased Laxman Majhi.

2. Heard Mr.S.N.Mishra, learned counsel for

the petitioners and Mr.R.B.Mishra, learned Addl. PP in

the matter and perused the record.

3. It is undisputed that the petitioners by

way of a bail application have raised a point before

the learned Sessions Judge, Kalahandi that since the

grounds of arrest was not communicated to the

petitioners, their arrest being vitiated and illegal, the

subsequent remand of the petitioners to custody is

also illegal and thereby, the petitioners are entitled to

be released on bail, but the learned Sessions Judge,

Kalahandi while passing the order refusing to grant

bail to the petitioners has observed that the decisions

in Vihaan Kumar vs. State of Haryana &

Another; 2025 (1) OLR (SC) 464 & Prabir

Purkayastha vs. State (NCT of Delhi); 2024 (2)

Crimes 293 (SC) are not applicable to the

petitioners in this case, since the accused persons in

the relied on cases were not involved in any heinous

offences, however, the learned Sessions Judge,

Kalahandi without discussing the ratio that has been

laid down by the Apex Court in these two decisions

has made this observation.

4. Be that as it may, in Vihaan Kumar

(supra), the Apex Court has observed the following

at paragraphs-28 & 31:-

"28. Therefore, in the facts of the case, we have no hesitation in holding that the arrest of the appellant was rendered illegal on account of failure to communicate the grounds of arrest to the appellant as mandated by Article 22(1) of the Constitution.

31. The learned Single Judge, unfortunately, has equated information given regarding the appellant's arrest with the grounds of arrest. The observation that the allegation of non-supply of the grounds of arrest made by the appellant is a bald allegation is completely uncalled for. All courts, including the High Court, have a duty to uphold fundamental rights. Once a violation of a fundamental right under Article 22(1) was alleged, it was the duty of the High Court to go into the said contention and decide in one way or the other. When a violation of Article 22(1) is alleged with respect to grounds of arrest, there can be possible two contentions raised: (a) that the arrested person was not informed of the grounds of arrest, or (b) purported information of grounds of arrest does not contain any ground of arrest. As far as the first contention is concerned, the person who is arrested can discharge his burden by simply alleging that grounds of arrest were not informed to him. If such an allegation is made in the pleadings, the entire burden is on the arresting agency or

the State to satisfy the court that effective compliance was made with the requirement of Article 22(1). Therefore, the view taken by the High Court is completely erroneous."

4.1. Similarly, in Prabir Purkayastha

(supra), the Apex Court in Paragraphs-20, 22, 25,

26, 30, 49 & 50 has observed as follows:-

"20. Resultantly, there is no doubt in the mind of the Court that any person arrested for allegation of commission of offences under the provisions of UAPA or for that matter any other offences has a fundamental and a statutory right to be informed about the grounds of arrest in writing and a copy of such written grounds of arrest have to be furnished to the arrested person as a matter of course and without exception at the earliest. The purpose of informing to the arrested person the grounds of arrest is salutary and sacrosanct inasmuch 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 tantamount to diluting the sanctity of the fundamental right guaranteed under Article 22(1) of the Constitution of India.

22. The right to be informed about the grounds of arrest flows from Article 22(1) of the Constitution of India and any infringement of this fundamental right would vitiate the process of arrest and remand. Mere fact that a charge sheet has been filed in the matter, would not validate the illegality and the unconstitutionality committed at the time of arresting the accused and the grant of initial police custody remand to the accused.

25. A Constitution Bench of this Court examined in detail the scheme of Article 22(5) of the Constitution of India in the case of Harikisan vs. State of Maharashtra and Others, 1962 SCC Online SC 117 and held that the communication of the grounds of detention to the detenue in writing and in a language which he understands is imperative and essential to provide an opportunity to detenue of making an effective representation against the detention and in case such communication is not made, the order of detention would stand vitiated as the guarantee under Article 22(5) of the Constitution was violated. The relevant Para is extracted herein below:

7. ..............clause (5) of Article 22 requires that the grounds of his detention should be made available to the detenue as soon as may be, and that the earliest opportunity of making a representation against the Order should also be afforded to him. In order that the detenue should have that opportunity, it is not sufficient that he has been physically delivered the means of knowledge with which to make his representation. In order that the detenue should be in a position effectively to make his representation against the Order, he should have knowledge of the grounds of detention, which are in the nature of the charge against him setting out the kinds of prejudicial acts which the authorities attribute to him.

Communication, in this context, must, therefore, mean imparting

to the detenue sufficient knowledge of all the grounds on which the Order of Detention is based. In this case the grounds are several, and are based on numerous speeches said to have been made by the appellant himself on different occasions and different dates. Naturally, therefore, any oral translation or explanation given by the police officer serving those on the detenue would not amount to communication, in this context, must mean bringing home to the detenue effective knowledge of the facts and circumstances on which the Order of Detention is based. (Emphasis supplied)

26. Further, this Court in the case of Lallubhai Jogibhai Patel vs. Union of India and Others, (1981) 2 SCC 427 laid down that the grounds of detention must be communicated to the detenue in writing in a language which he understands and if the grounds are only verbally explained, the constitutional mandate of Article 22(5) is infringed. The relevant Para is extracted hereunder:

"20 ..... "Communicate" is a strong word. It means that sufficient knowledge of the basic facts constituting the "grounds" should be imparted effectively and fully to the detenue in writing in a language which he understands. The whole purpose of communicating the "ground" to the detenue is to enable him to make a purposeful and effective representation. If the "grounds" are only verbally explained to the detenue and

nothing in writing is left with him, in a language which he understands, then that purpose is not served, and the constitutional mandate in Article 22(5) is infringed....... (Emphasis supplied).

30. 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. Noncompliance of this constitutional requirement and statutory mandate would lead to the custody or the detention being rendered illegal, as the case may be.

49. It may be reiterated at the cost of repetition that there is a significant difference in the phrase „reasons for arrest' and 'grounds of arrest'. The „reasons for arrest' as indicated in the arrest memo are purely formal parameters. viz., to prevent the accused person from committing any further 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 for 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 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 on which he was being arrested so as to provide him an opportunity of defending himself against custodial remand and to seek bail. Thus, 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.

50. From the detailed analysis made above, there is no hesitation in the mind of the Court to reach to a conclusion that the copy of the remand application in the purported exercise of communication of the grounds of arrest in writing was not provided to the accused appellant or his counsel before passing of the order of remand dated 4th October, 2023 which vitiates the arrest and subsequent remand of the appellant."

4.2. In a most recent decision in Mihir Rajesh

Shah vs. State of Maharashtra & Ors.; MANU/SC/

1492/2025, it has been held at Paragraph-4.2 by the

Apex Court that while dealing with the mode of

communicating the grounds of arrest so as to serve the

intended purpose of the constitutional mandate, the

language used in Article 22(1) and 22(5) regarding

communication of the grounds is identical and therefore

the interpretation of Article 22(5) shall ipso facto apply

to Article 22(1). The grounds of arrest must be

furnished in writing, in order to attend the true

intended purpose of Article 22(1). Reference at this

stage may be made to the Constitution Bench

Judgment of this Court in Harikisan (supra) wherein

while dealing with the Article 22(5) of the Constitution

of India in the context of the right of a detainee to be

made aware of the grounds of arrest, it has been held

that the same should be furnished in a language which

he can understand and in a script which he can read.

5. In view of the dictum of the Apex Court in

the decisions referred to above, it can be well

considered that the grounds of arrest is not an empty-

formality and communication of it to the

detainee/arrestee must be strictly complied with by

communicating the same to the arrestee in the

language he understands. On a bare perusal of the

copy of arrest memos produced in this case by the

learned State counsel under Annexures- A & D, which

are in printed forms of arrest memo, the grounds of

arrest have been left blank under column No.10. It is,

therefore, very clear that the petitioners have not been

communicated with the grounds of arrest, but the

provision of Sec.47 of BNS which deals with

communication of grounds of arrest and of right to bail,

makes it mandatory for the Arresting Officer to

communicate the grounds of arrest to the arrestee

which has already been reiterated and reaffirmed by

the Apex Court in the decisions referred to above and,

therefore, the Arresting Officer in this case should have

communicated the grounds of arrest to the arrestees-

cum-petitioners to the language they understand. It is

also undisputed that when a statute prescribes the

mode of exercise of the provision contained in it, such

provision has to be done in that manner in letter and

spirit and not otherwise and deviating the mandate of

the statute would have other ramifications. In this

regard, the view in the famous decision in Nazir

Ahmed vs. King Emperor; AIR 1936 PC 253 is quite

apt, since it had been held therein by the privy-council

that if a thing is to be done in a particular way, then

the same has to be done in that way and not otherwise.

6. In the above context of violation of 22(1)

of the Constitution of India, this Court considers it

profitable to refer to the decision in the case of

Directorate of Enforcement vrs. Subash Sharma;

2025 SCC OnLine SC 240, wherein in a somewhat

similar situation, the Apex Court at Paragraph-8 has

held as under:-

"8. Once a Court, while dealing with a bail application, finds that the fundamental rights of the accused under Articles 21 and 22 of the Constitution of India have been violated while arresting the accused or after arresting him, it is the duty of the Court dealing with the bail application to release the accused on bail. The reason is that the arrest in such cases stands vitiated. It is the duty of every Court to uphold the fundamental rights guaranteed under Articles 21 and 22 of the Constitution."

7. In view of the above facts and taking into

consideration the facts that the grounds of arrest has

not been communicated to the petitioners, the arrest of

the petitioners stands vitiated and thereby, the

subsequent remand of the petitioners to custody is also

illegal and vitiated and the only consequence left

thereon is to grant bail to the petitioners to obviate the

non-compliance of mandate of the Constitutional

guarantee provided in Article 22(1) of the Constitution

of India.

8. Hence, the bail application of the each of

the Petitioners stands allowed and the Petitioners are