JOYATU MONDAL Vs. JOYATU MONDAL

JUDGEMENT

(1.) The Investigating Officer is present in Court. He files his explanation in compliance to the order dtd. 8/5/2025, which is taken on record.

(2.) Learned Advocate for the petitioner submits that the petitioner at the time of incident was a juvenile. The grounds of arrest has not been communicated to the petitioner in compliance to the decision of the Hon'ble Supreme Court passed in Prabir Purukayastha -versus- State (N.C.T. of Delhi), reported in (2024) 8 SCC 254. Relying on the decision of the Hon'ble Supreme Court passed in D.K. Basu -versus- State of West Bengal, reported in AIR 1997 SC 610, he submits that at the time of arrest of the arrestee the police officer has to prepare the memo of arrest and such memo shall be attested by at least one witness who may be either a member of the family of the arrestee or a respectable person of the locality from where the arrest is made and it shall also be countersigned by the arrestee and shall contain the time and date of arrest. Though the arrest memo has the counter signature of the arrestee but it does not have the signature of any member of the family of the arrestee or any respectable person of the locality which is an infraction of the proposition as laid down by the Hon'ble Apex Court.

(3.) The learned Public Prosecutor submits that as far as the issue relating to informing the grounds of arrest is concerned, the same was directed in respect of proceedings initiated by the Enforcement Directorate where the attachment of properties of the accused were involved. He informs the Court that the question whether in all cases the grounds of arrest are to be informed is under consideration before the Hon'ble Supreme Court in Mihir Rajesh Shah -versus- The State of Maharashtra & Anr [Special Leave to Appeal (Crl) No. 17132/2024], the decision of which is reserved by the Hon'ble Supreme Court. However, he candidly submits that as the arrest memo clearly shows that the dictum of Hon'ble Apex Court in D.K. Basu (supra) of making arrest in presence of at least one witness has not been followed by the Investigating Officer, rule has to be issued against him and at the same time direction be issued to the appropriate authority to initiate a disciplinary proceedings against the said officer. He also indicates that the accused in the present case be released since the arrest is per se illegal. The grant of bail to the accused would not be the correct recourse as the detention appears to be illegal.