The Supreme Court of India, in a significant judgment delivered on 15 May 2024, set aside the arrest and remand of Prabir Purkayastha, the chief editor of online news portal NewsClick, under the Unlawful Activities (Prevention) Act, 1967 (UAPA). A Bench of Justice B.R. Gavai and Justice Sandeep Mehta held that the failure to provide written grounds of arrest to the accused rendered the arrest invalid and ordered his immediate release.
Background
Purkayastha was arrested on 3 October 2023 in connection with allegations that the news portal received foreign funding to disseminate pro-China propaganda. The arrest was effected under the UAPA, a stringent anti-terror statute that imposes substantial restrictions on bail. Following his arrest, Purkayastha was produced before the Magistrate on 4 October 2023 for remand, but the remand application was neither supplied to the accused nor to his counsel before the remand order was passed.
The central legal question before the Supreme Court was whether the procedural safeguards under Section 43D(2) of the UAPA — specifically the mandatory requirement of communicating the grounds of arrest in writing — had been complied with. This provision mirrors the constitutional guarantee under Article 22(1), which mandates that every arrested person be informed of the grounds of arrest at the earliest opportunity.
Key Holdings
The Supreme Court established the following propositions:
Mandatory written grounds: The Court held that Section 43D(2) of the UAPA casts an obligatory duty on the arresting authority to inform the arrested person of the grounds of arrest in writing. This is not a mere formality but a substantive safeguard that goes to the root of personal liberty.
Non-supply vitiates remand: The failure to furnish the remand application or its substance to the accused or their counsel before the Magistrate passed the remand order constituted a fatal procedural deficiency. The remand order of 4 October 2023 was accordingly set aside.
Arrest rendered invalid: Since the arrest and subsequent remand were inextricably linked, the invalidation of the remand order had the effect of rendering the entire arrest process illegal. The Court directed that Purkayastha be released forthwith on bail and surety bonds, noting that the chargesheet had already been filed.
Procedural compliance non-negotiable: The Bench emphasised that even in cases involving serious offences under the UAPA, the statutory procedure prescribed for arrest must be scrupulously followed. The gravity of the offence cannot justify departure from mandatory procedural safeguards.
Implications for Practitioners
This judgment carries substantial weight for criminal defence practitioners representing accused persons under the UAPA and analogous special statutes. The ruling effectively elevates the requirement of furnishing written grounds of arrest from a procedural technicality to a jurisdictional prerequisite — meaning non-compliance can vitiate the entire arrest process, not merely the remand order.
For investigating agencies, the operational takeaway is clear: documentation of arrest grounds and their communication to the accused must be demonstrable through contemporaneous records. Agencies would be well-advised to maintain signed acknowledgements from accused persons confirming receipt of written grounds.
The judgment also has potential implications beyond the UAPA. Practitioners dealing with the Prevention of Money Laundering Act, 2002 (PMLA) — which contains analogous provisions regarding communication of arrest grounds under Section 19 — may find the reasoning directly applicable. The Kerala High Court has already considered the retrospective applicability of this ruling, signalling that its ripple effects across criminal jurisprudence are far from settled.