Harash Kumar v. State Govt. of NCT of Delhi and Anr.

I. Alleged Illegality of Arrest and Violation of Article 22 of Constitution of

3.1. It is submitted that the Applicant’s arrest and continued custody are vitiated by a violation of Article 22(1) of the Constitution and Section 47 of the BNSS. A team comprising SI Jyoti (IO), HC Sanjeev, and HC Anil left for Jammu on 5th August, 2024, and reached on 6th August, 2024. On the same day, a notice was served upon the Applicant directing him to join the investigation at P.S. Subzi Mandi on 7th August, 2024 at 1:00 PM. These facts are supported by the statements of HC Sanjeev and HC Anil recorded under Section 180 BNSS.

3.2. Contrary to the official record, the Applicant was in fact taken into custody on 6th August, 2024, at Jammu itself, and subsequently brought to Delhi. However, the arrest memo inaccurately reflects the date and place of arrest as 7th August, 2024, 1:00 PM, at P.S. Subzi Mandi.

3.3. The Prosecution’s conduct contravenes Section 47(1) of the BNSS and Article 22(1) Constitution which mandate that a person arrested without a warrant must be informed, without delay, of the grounds of arrest. The arrest memo, apart from reflecting an incorrect date, fails to disclose any meaningful reason for the arrest, merely stating “address of the accused yet to be verified.” This violates the provisions of Article 22(1) of the Constitution as well as Section 47 of the BNSS. Further, the Applicant was not produced before the Magistrate within 24 hours of his arrest. Hence the arrest of the Applicant is liable to be set aside, and he is entitled to be admitted to bail.

3.4. Reliance is placed on the decision of this Court in Pranav Kuckreja v. State,[5] where the Court declared an arrest illegal for failure to communicate proper grounds, and followed the principles laid down in Prabir “Constitution” W.P.(CRL) 3476/2024 Purkayastha v. State (NCT of Delhi),[6] emphasising necessity of forthwith communication of grounds of arrest. The Court deprecated the practice of filing generic reasons, while holding the arrest to be illegal and granting bail. ii. The Consensual Relationship Between the Applicant and Prosecutrix.

3.5. The Applicant has been falsely implicated. The relationship between the Applicant and the Prosecutrix was entirely consensual, and the allegations made in the FIR are a result of a personal falling out. The Applicant denies issuing any threats or possessing any obscene photographs or videos. It is further contended that no such material was recovered from his devices during the investigation.

3.6. The Applicant, a resident of Jammu, had never visited Delhi NCR prior to 07th August, 2024, and the Prosecutrix’s allegations regarding his visit to her house in Noida lack supporting evidence. The Investigating Agency has found voice and text messages, and Instagram chats which directly contradict the Prosecutrix’s claims. These include statements made by the Prosecutrix expressing affection and acknowledging a personal relationship.

3.7. The Prosecutrix delayed submitting her phone for forensic analysis and deleted social media apps, preventing verification of the evidence. She also refused to provide her iCloud and Google ID, which suggests suppression of exculpatory material. Pertinently, efforts were made to collect evidence regarding the visit of the Applicant and Prosecutrix near

Hindu Rao Hospital through Google and iCloud history. She later, through her reply of another notice, stated she was not carrying her mobile phone at the time of the alleged incident.

3.8. The Prosecutrix is stated to have travelled to Jammu on at least seven occasions between January 2022 and July 2023, as well as once more from 18th to 19th September, 2023. On each occasion, she stayed at the Radisson Blu Hotel, having independently booked the rooms in her own name. Hotel records further reflect that she availed amenities such as in-room dining and minibar services, which were paid for directly by her. These facts, it is submitted, belie the claim of coercion or continued sexual assault, and instead suggest that her visits were voluntary and indicative of a consensual relationship with the Applicant.

3.9. Additionally, the chats recovered from the phone of Ms. Diya, depict that the Prosecutrix and the Applicant were in a consensual relationship.

III. Additional Grounds:

3.10. There is an unexplained delay of approximately one year between the last alleged incident and the filing of the complaint, which raises serious questions about the credibility of the allegations.

3.11. The investigation stands concluded qua the Applicant. The chargesheet has already been filed and cognizance has been taken by the Trial Court vide order dated 05th October 2024. Hence, there is no need for continued custody. The Charges are yet to be framed. The prosecution has a listed 17 witnesses, and the trial is likely to considerable time. Thus, continued incarceration of Applicant, during the pendency of trial, serves no justifiable purpose and would amount to pre-trial punishment. The Respondents’ Case:

4. Mr. Hemant Mehla, APP for the State, opposes the bail application, submitting that the allegations against the Applicant are grave in nature, involving sustained acts of sexual exploitation, extortion, and threats. He highlights the Applicant’s conduct during the period of alleged offence and throughout the investigation, particularly the use of abusive language, threats, and coercion directed at the Prosecutrix. In view of the serious nature of the offences and the pattern of intimidation, it is urged that no indulgence be shown at this stage.

5. Mr. Shikhar Srivastava, counsel for the Prosecutrix, also vehemently opposes the bail application on the following grounds: 5.[1] The Applicant, during the course of investigation, not only failed to co-operate but also misled the Investigating Agency by providing incorrect details. When questioned about his previous mobile device, which was allegedly used in the commission of the offence, the Applicant falsely stated that he had disposed of the device by selling on OLX platform. However, it later came to light that the said mobile phone was found in possession of one Ms. Diya, who is suspected to be associated with the Applicant. The Applicant also declined to provide access credentials to his Google and iCloud accounts, thereby obstructing the investigation.

5.2. The Applicant, in collusion with the former Investigating Officer, attempted to tamper with crucial digital evidence. This act weighs heavily against the grant of bail.

5.3. Given the heinous nature of the alleged offences and the continuing threat the Applicant poses to the safety and well-being of the Prosecutrix, the request for bail should be denied.

5.4. A perusal of the WhatsApp chat records, submitted by the Prosecutrix, reveal that the Applicant repeatedly used abusive language, demanded money, and issued threats to circulate intimate images and videos if his demands were not met. These communications, demonstrate a pattern of extortion and psychological coercion.

5.5. Contrary to the Applicant’s claim, the investigation is still ongoing. Important forensic evidence and proof regarding financial transactions is still pending and will be submitted with the supplementary chargesheet. 5.[6] As regards the contention raised by the Applicant regarding alleged illegality in arrest, it is submitted that the records do not support this claim. The accused was not arrested on 6th August 2024. Only a notice to join the investigation was duly served upon the Applicant on 6th August, 2024, at Jammu, directing him to appear on 7th August, 2024 at 1:00 PM at P.S. Subzi Mandi, Delhi. The Applicant voluntarily accompanied the investigating team, expressing willingness to cooperate. During the journey, he was not placed under arrest or subjected to custody. Upon reaching Delhi, the accused failed to cooperate with the investigation, following which he was formally arrested. An arrest memo was duly prepared and signed by the accused, clearly stating the grounds of arrest and other relevant particulars. Furthermore, the charges against him had already been communicated through the notice served at the local police station in Jammu. Subsequently, the accused was produced before the magistrate within the mandatory 24hour period, in full compliance with the law. in any event, the arrest pertained to offences punishable with imprisonment exceeding seven years, and hence, as per law, even a warrant was not necessary. Additionally, this Court, while hearing a bail application under section 483 of the BNSS, does not have the jurisdiction to rule on the legality of the arrest, rendering that ground legally untenable. Analysis

6. It is well-settled in law that at the stage of granting of bail, in serious and heinous offences, the Court must consider the following factors:7

(i) whether there is any prima facie or reasonable ground to believe that the accused had committed the offence;

(ii) nature and gravity of the accusation; the nature of evidence in support of the accusations

(iii) severity of the punishment in the event of conviction;

(iv) danger of the accused absconding or fleeing, if released on bail;

(v) character, behaviour, means, position and standing of the accused;

(vi) likelihood of the offence being repeated;

(vii) Reasonable apprehensions of the witnesses being tampered with or the apprehension of there being a threat for the complainant should also weigh with the Court in the matter of grant of bail.

(viii) danger, of course, of justice being thwarted by grant of bail.

7. At this stage, the Court is not expected to undertake a meticulous examination of the merits or weigh the probative value of each piece of evidence. Nonetheless, for the limited purpose of assessing whether a prima facie case exists against the Applicant, and whether there are compelling reasons to deny bail, the materials on record must be examined in a broad conspectus. The Applicant has relied upon certain chat conversations Bhagwan Singh V Dilip Kumar alias Deepu alias Deepak and Anr (2023) 13 SCC 549; See also Prasanta Kumar Sarkar v. Ashis Chatterjee, (2010) 14 SCC 496 between the Prosecutrix and one Ms. Diya Sharma to contend that the relationship between him and the Prosecutrix was consensual in nature. On the other hand, the Prosecutrix, in her reply the prosecutrix, in her detailed reply to the present application, has produced a series of chats allegedly depicting the Applicant abusing, threatening, and extorting money from her. While the forensic analysis of these messages is awaited, the Investigating Officer has confirmed that the phone number from which these messages were sent stands admitted by the Applicant as belonging to him. A perusal of the said chats reveals a disturbing pattern of behaviour. The Applicant is seen issuing explicit threats to circulate obscene photographs of the prosecutrix, allegedly obtained without her consent, following a disclosure made by her to his family. He is further seen claiming that both he and his father are criminals and vowing not to spare her. The chats further show the Prosecutrix, evidently under duress, pleading with the Applicant and agreeing to comply with his demands. The Applicant thereafter directed the Prosecutrix to clarify to his father that everything that happened between them was consensual, and made further demands for monetary payments along with assurances that she would continue to keep him satisfied, in exchange for a conditional promise to finally delete the aforementioned material.

8. Prima facie, these chats indicate sustained and deliberate acts of blackmail, criminal intimidation, and extortion. They also portray a situation in which the prosecutrix appears to be under psychological duress, complying with the Applicant’s demands to avoid reputational harm. It must be noted that the trial is at a nascent stage and the charges are yet to be framed. More importantly, the prosecution is yet to trace and recover the allegedly obscene material forming the basis of the threats. This raises a very real concern that such material may continue to be used as a means of manipulation or intimidation as proceedings move forward. Prima facie, the Applicant’s refusal to provide access to his Google and iCloud credentials, indicates a possibility that crucial electronic evidence is either being withheld or has been destroyed. In such circumstances, enlarging the Applicant on bail at this stage may prejudice the ongoing investigation and irreparably compromise the evidentiary chain.

9. The Court is also not persuaded by the Applicant’s claim that the entire relationship was consensual. While the chats with one Ms. Diya Sharma have been cited in support of this argument, the same do not, at this stage, offset the nature and specificity of the threats extracted from the Applicant’s own device. Even if the relationship is said to have been consensual, in the opinion of the Court, prima facie, a case of extortion under section 383 of the IPC is made out.

10. In light of the above, and considering the seriousness of the allegations, the involvement of threats to publish obscene material, and the ongoing investigation (including pending FSL reports), the Court is of the view Applicant is not entitled to bail. There exists a reasonable apprehension that the Applicant may tamper with evidence or influence witnesses, particularly the Prosecutrix. The Applicant is thus not entitled to bail as per the parameters noted above.

11. It is in this background that the Court must now evaluate whether the Applicant is otherwise entitled to bail on the ground that the grounds of arrest were not forthwith furnished to him in writing.

12. Mr. Kiritman Singh emphasised that that the failure to furnish the grounds of arrest constitutes a violation of Article 22(1) of the Constitution, rendering the arrest unlawful and entitling the Applicant to bail. It is pointed out that the arrest memo discloses only reasons for the arrest and not the grounds. Reliance is placed on Pranav Kuckreja v. State,[8] which affirms the legal position laid down in Prabir Purkayastha v. State (NCT of Delhi).[9] In Prabir Purkayastha,10 the Supreme Court, while referring to Pankaj Bansal v. Union of India,11 held that the grounds of arrest must be communicated to the accused in writing and without delay, as mandated by Article 22(1) of the Constitution. Further, the Supreme Court drew a clear distinction between “grounds of arrest” and “reasons for arrest” and held that failure to comply with this requirement invalidates the remand and entitles the accused to bail. The relevant portion of the said judgement reads as under:

46. Now, coming to the aspect as to whether the grounds of arrest were actually conveyed to the appellant in writing before he was remanded to the custody of the investigating officer.

47. We have carefully perused the arrest memo (Annexure P-7) and find that the same nowhere conveys the grounds on which the accused was being arrested. The arrest memo is simply a pro forma indicating the formal “reasons” for which the accused was being arrested.

48. 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 Order dated 18th November, 2024 in W.P.(Crl) 3476/2024

"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.

49. 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 appellant-accused or his counsel before passing of the order of remand dated 4th October, 2023 which vitiates the arrest and subsequent remand of the appellant.”

13. Thus, the “grounds of arrest” must include specific details known to the investigating officer that justify the arrest of the accused. These grounds, communicated in writing, must outline the essential facts and circumstances that led to the arrest, ensuring the accused is informed of the basis for their detention. This provides the accused an opportunity to challenge the arrest, oppose custodial remand, and seek bail. Therefore, the position of law, in this regard, is that while the “reasons for arrest” are general and procedural, the “grounds of arrest” are personal, case-specific, and vital for the accused’s right to legal defence.

14. In light of the above legal position, it is pertinent to reproduce the arrest memo filed in the present case which reads as follows:

15. A perusal of the same reveals that there is merit in the contention raised by Mr. Kirtiman Singh. The arrest memo fails to disclose the grounds of arrest and only provides the reasons for the arrest, which does not fulfill the mandatory requirement of communicating the grounds of arrest to the Applicant.

16. However, it is important to take note of the remand application, annexed with the instant bail application, whereby the prosecution, while requesting a 5-day police custody remand of the Applicant submitted as follows:

17. As evident from the above, the remand application outlined the circumstances under which the FIR was registered. Thus, the remand application clearly set out the grounds for arrest, which are case-specific, and provided sufficient information for the Applicant to put forth a proper legal defence.

18. Regarding the claim that the Applicant was arrested on 6th August 2024 and not produced before a magistrate within 24 hours, it is important to highlight that the arrest memo clearly states the date of arrest as 7th August

2024. While the Applicant alleges that this date was incorrectly recorded, it is noteworthy that the arrest memo bears the Applicant’s signature.

19. In light of the above, in the opinion of this court, the grounds of arrest were in fact provided to the Applicant and he was given a fair opportunity to oppose the remand application. Thus, in the opinion of this court, violation of Article 22(1) of the consitution has also not been made out.

20. Accordingly, this court does not find it a fit case for grant of bail.

21. Dismissed.

SANJEEV NARULA, J APRIL 30, 2025