BA1/2309/2024 of SUNIL WALIA ALIAS GANJA Vs STATE OF UTTARAKHAND

HIGH COURT OF UTTARAKHAND AT NAINITAL

First Bail Application No.2309 of 2024

Sunil Walia @ Ganja

….....Applicant

Versus

State of Uttarakhand

….….Respondent

Present:-

Mr. Raj Kumar Singh, Advocate for the applicant. Ms. Manisha Rana Singh, D.A.G. for the State.

Hon’ble Ravindra Maithani, J. (Oral)

Applicant is in judicial custody in Case Crime/FIR No. 456 of 2024, under Sections 109 (1) and 352 of the Bharatiya Nyaya Sanhita, 2023, Police Station Rishikesh, District Dehradun. He has sought his release on bail.

2. Heard learned counsel for the parties and perused the

record.

3. Learned counsel for the applicant would submit that in the instant case, grounds of arrest were not communicated in writing to the applicant, therefore, in view of the law laid down by the Hon’ble Supreme Court in the case of Prabir Purkayastha v. State (NCT of Delhi), (2024) 8 SCC 254, Pankaj Bansal v. Union of India, (2024) 7 SCC 576 and Vihan Kumar v. State of Haryana and another, 2025 SCC OnLine SC 269, the applicant is entitled to bail.

4. Learned State counsel would submit that as per instructions, the grounds of arrest were not communicated in writing to the applicant.

5. The scope of Article 22 (1) of the Constitution of India has been discussed in the case of Prabir Purhayastha (supra). In para 29 of the judgment, the Hon’ble Supreme Court observe as follows:-

“29. Hence, we have no hesitation in reiterating that the requirement to communicate the grounds of arrest or the ground of detention in writing to person arrested in connection with an offence or 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.”

6. In fact, in the case of Prabir Purkayastha (supra), the Hon’ble Supreme Court has followed the law, as laid down in the case of Pankaj Bansal (supra) and held that the ground of arrest must be communicated in writing to the person arrested of an offence at the earliest.

7. In the case of Vihaan Kumar (supra), in para 19, the Hon’ble Supreme Court discussed the requirement under Section 50 of the Code as well as the mandate of Article 22(1) the Constitution of India, which reads as follows:-

“19. An argument was sought to be canvassed that in view of sub-Section (1) of Section 50 of CrPC, there is an option to communicate to the person arrested full particulars of the offence for which he is arrested or the other grounds for the arrest. Section 50 cannot have the effect of diluting the requirement of Article 22(1). If held so, Section 50 will attract the vice of unconstitutionality. Section 50 lays down the requirement of communicating the full particulars of the offence for which person is arrested to him. The ‘other grounds for such arrest’ referred to in Section 50(1) have nothing to do with the grounds of arrest referred to in Article 22(1). Section 47 of the BNSS is the corresponding provision. Therefore, what we have held about Section 50 will apply to Section 47 of the BNSS.”

8. bare reading of the settled law, makes its abundantly clear that Article 22(1) of the Constitution of India is not subject to the provisions of Section 50 of the Code. The Constitutional mandate of Article 22(1) has to be fulfilled and if any arrest is made in its defiance, the dictum as has been laid

down in the case of Vihaan Kumar (supra) in para 21(f) would entail, which reads as follows:-

“21. Therefore, we conclude:

f) When 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 ground to grant bail even if statutory restrictions on the grant of bail exist. The statutory restrictions do not affect the power of the court to grant bail when the violation of Article 21 and 22 of the Constitution is established.”

9. Having considered, this Court is of the view that it is case fit for bail and the applicant deserves to be enlarged on bail.

10. The bail application is allowed.

11. Let the applicant be released on bail, on his executing personal bond and furnishing two reliable sureties, each of the like amount, to the satisfaction of the court concerned.

Jitendra

(Ravindra Maithani, J) 03.06.2025