Custody Without Communication of Grounds Is No Custody in Law —Violation of Articles 21 and 22 Nullifies Arrest and Remand: Punjab & Haryana High Court Declares Arrest of Music Producer as Illegal

Liberty Is Too Precious to Be Sacrificed at the Altar of Police Whims  - Punjab and Haryana High Court ordered the immediate release of Pushpinder Pal Singh Dhaliwal, a music producer, holding that his arrest and continued detention were unconstitutional, procedurally unlawful, and an affront to fundamental rights.

Delivering a sharply worded judgment, Justice Harpreet Singh Brar stated:

“The failure to adequately inform the arrestee of the grounds of his arrest equates to deprivation of his personal liberty in contravention of the procedure established by law.”

The Court not only found the arrest in violation of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) and Articles 21 and 22 of the Constitution, but also condemned the attempt by police to cover procedural lapses post facto.

“Custodial Interrogation Preceded FIR—Arrest Memo Handed Over Only After Midnight”: Facts That Shock the Conscience

The petitioner, Gurkaran Singh Dhaliwal, filed a writ of habeas corpus under Article 226, seeking the release of his father, Pushpinder Pal Singh Dhaliwal, who was picked up by police from his residence on March 8, 2025, at 7:30 PM, without an FIR, arrest memo, or notice under BNSS.

The Court noted that: “At the time of his detention, neither a complaint nor an FIR had been registered… the Warrant Officer appointed by this Court was not provided any document justifying custody until 2:26 AM on the following day.”

The FIR (No. 39 of 2025) under Sections 406, 420, 465, 467, 468, 341, 500, and 506 IPC, was registered only after the Warrant Officer arrived, and documents like arrest memo and personal search memo were backdated and hurriedly signed at 2:30 AM.

This, the Court held, “was a deliberate attempt by police officials to obscure procedural irregularities and justify their illegal actions.”

“Mere Power to Arrest Does Not Justify Its Exercise—Police Must Justify the Need”: Court Cites Joginder Kumar and Arnesh Kumar

Quoting the Supreme Court in Joginder Kumar v. State of U.P. and Arnesh Kumar v. State of Bihar, the High Court observed: “The existence of the power to arrest is one thing. The justification for the exercise of it is quite another… Arrest and detention can cause incalculable harm to the reputation and self-esteem of a person.”

It emphasized that arrest must only be made after satisfaction of necessity and communication of grounds, which was glaringly absent in this case.

“Non-Compliance with Section 47 of BNSS Is an Incurable Illegality”: Arrest Declared Void Ab Initio

The Court found a complete violation of Section 47 of BNSS (earlier Section 50 CrPC), which mandates forthwith communication of grounds of arrest.

Relying on the latest Supreme Court ruling in Vihaan Kumar v. State of Haryana (2025 SCC OnLine SC 269), Justice Brar stated: “Once it is held that arrest is unconstitutional due to violation of Article 22(1), the arrest itself is vitiated. Therefore, continued custody based on orders of remand is also vitiated.”

The Bench further observed: “It was only after a lapse of seven hours from the initial custody that the detenu was informed of the grounds of arrest. This alone is an incurable illegality that would be sufficient to vitiate the proceedings.”

“Notice Under Section 35(3) Was Not Served—Police Cannot Bypass Procedural Justice”

The Court noted that even assuming the arrest followed FIR registration, the police failed to comply with Section 35(3) of BNSS (earlier Section 41-A CrPC), which requires issuance of notice prior to arrest in certain offences.

The record showed: “No reasons were recorded by police, after conducting some investigation, to conclude that arrest was necessary. This renders the arrest not only unlawful but unconstitutional.”

“Reputation Is a Priceless Facet of Article 21—Police Must Not Trample It Casually”

The judgment eloquently recognized the impact of arrest on personal dignity: “In the eyes of society, the mere act of being taken into custody is equated with guilt… Even a fleeting moment in custody can cast a lifelong shadow.”

Referencing Sukhwant Singh v. State of Punjab, the Court reinforced that reputation is intrinsic to the right to life, and unlawful arrests can permanently damage it.

Warrant Officer Has No Power to Rule on Legality of Arrest—Ministerial Role Reaffirmed”

In a cautionary note, the Court censured the Warrant Officer for exceeding his jurisdiction by opining on the legality of arrest: “The Warrant Officer performs only a ministerial function… He is not vested with adjudicatory powers. The conclusion he recorded is deprecated.”

Arrest Declared Illegal, Detention Quashed, Detenu Ordered to Be Released

Allowing the writ petition, the Court ordered: “The arrest of the detenu in connection with FIR No. 39 dated 08.03.2025 stands vitiated and is declared illegal. The detenu is to be released forthwith unless required in any other case.”

The Court clarified that this declaration shall not prejudice the ongoing investigation, but reaffirmed that procedural and constitutional violations cannot be retrospectively cured.

Date of Decision: March 11, 2025