Anwar Khan @ Chacha & Ors. v. The State NCT of Delhi

W.P.(CRL) 2045/2025 10 of 34 backdrop of position of law on this issue, the investigating agency is well within their right to continue or to do further interrogation of the above four persons. Accused are stated to be in custody in other case. Therefore, it is directed that applicant/investigating agency shall be facilitated by Jail authorities in terms of applicable jail rules for interrogation of accused by applicant/ investigating agency.

7. As far as, permission to re-arrest is concerned, it is beyond the scope of mandate of law for court that during investigation, any observation be given by court before arrest of accused that if or not arrest of accused is required. It is for the investigating agency to decide in terms of applicable law that if or not any accused is to be arrested. The role of court to evaluate the said arrest will begin once the arrest is effected. Needless to say that arrest is to be evaluated from two dimensions. Firstly, on the basis of material on record which shows that their exists sufficient and reasonable material showing involvement of accused. Secondly, it is the duty of court to ensure that. procedural safeguards laid down by statues as well as brought in by judicial interpretation in various pronouncement of Hon'ble High Courts and Hon'ble Supreme Court of India are observed in the letter and spirit. To make an observation in respect of arrest or re-arrest in advance would amount to putting the cart before the horse and will amount to tacit approval of court that material on record is sufficient to justify the arrest of accused on the basis of his involvement in the case. Such an observation on part of court, at this stage, is not warranted and permissibile under law. Therefore, at this stage, this part of application/prayer is not required to be adjudicated upon pre-mature. Application stands disposed of accordingly. Copy dasti. Copy of this order be sent to Jail concerned for informing applicant/ accused accordingly.”

11. All four petitioners were rearrested in the present case on 10.06.2025. This time, more detailed and written grounds of arrest were furnished to the petitioners. Following their arrest, they were brought to the Patiala House Court and produced before the learned Vacation Judge. An application for seeking 10 days of police custody W.P.(CRL) 2045/2025 11 of 34 remand was also filed by the State, which was opposed by the learned defence counsels. Taking cognizance of the circumstances, the learned Vacation Judge, by order dated 11.06.2025, directed the investigating agency to place on record a synopsis of fresh evidence gathered post the earlier judicial order dated 13.05.2025, and to demonstrate the legal permissibility of the petitioners‟ rearrest. The petitioners were initially remanded to judicial custody till 16.06.2025, and on that date, their custody was further extended, with the matter posted before the learned ASJ for 01.07.2025.

12. Subsequently, after hearing arguments on the legality of the rearrest, the learned ASJ passed the impugned order dated 04.07.2025, holding that the re-arrest of the petitioners in FIR NO. 629/2024 was lawful and within the four corners of the applicable legal framework. The relevant observations of the learned ASJ in the impugned order dated 04.07.2025, which have been assailed by the petitioners, are set out below: “14.[1] I have gone through the order dated 09.06.2025. The relevant paragraph in the said order is para no.7. It was emphasized on behalf of accused that the court has observed that it is beyond the scope of the court to permit arrest of accused. However, reading of para no.7 shows that said observation is only in respect of the mandate of law in respect of qua the stage of the case. In other words, the observation has been given in respect of mandate of law on the powers of court for direction for arrest during investigation. It is trite law that court cannot dictate and should not dictate as to which accused should be arrested or when. It is an established position of law that such authority is vested in the investigating agency to decide whether or not accused is to be arrested. It has been clearly held in para no.7 that said issue regarding permission to re-arrest need not to be adjudicated as it was premature. Once W.P.(CRL) 2045/2025 12 of 34 it is held that an issue is premature, it means that court has not made any observation on the substance of the issue cither in terms of approval of the issue or disapproval of the issue. Hence, the arguments for permission to re-arrest having been rejected as it does not hold water.

15. It was also argued that prosecution has not complied with the direction issued by the order dated 11.06.2025 but by filing the progress of the investigation, the compliance has been made. It was argued on behalf of prosecution that accused being sent in judicial custody in two occasions and the said remand in judicial custody having been not opposed amounts to approval of the accused by the court cannot be accepted as the arguments raised on behalf of accused by Ld. Defence Counsel that the issue of legality of arrest being still pending, the direction for keeping the accused in custody till disposal of the issue does not amount to remand of JC after application of mind on the facts of the case has force.

16. The major thrust of the argument of Ld. Defence Counsel is that there is no legal basis for re-arrest of the accused and if such rearrest is allowed, it will amount to rendering the orders of the Constitutional Courts being infractuous as the prosecution/ investigating agency will attempt to wipe out the illegalities by making good of the lapses committed by them.

17. Whenever a person is arrested as an accused in a case and is produced before the court, before remanding the accused in custody of any kind i.e. police custody or judicial custody, court must ask prosecution to cross the twin test in respect of legality of arrest. 17.[1] The first test would be regarding the compliance of procedural safeguards incorporated in statutes and brought in by various pronouncements of Hon'ble Constitutional Courts. Once, the investigating agency is able to show that all the safeguards have been observed in compliance, then the investigating agency need to show that material on record is sufficient to indicate prima facie involvement of accused warranting his arrest and need for investigation. In case the prosecution/investigating agency fails to cross the first test, the second stage is not reached and thus, material produced will not be evaluated as such. 17.[2] In the present matter also, there has been similar circumstances for observance of mandate of supplying the W.P.(CRL) 2045/2025 13 of 34 grounds of arrest in defiance through a formal compliance rather than meaningful supply of grounds of arrest. Thus, vide order dated 13.05.2025, the arrest was declared illegal as in the judgments referred above, Hon'ble Supreme Court of India has held that the requirement of supplying meaningful grounds of arrest is part of fundamental rights.

18. It was also argued on behalf of accused that there is noncompliance of Article 22 and Section 50 of erstwhile Cr.PC. Article 22 of Constitution of India requires supply of grounds of arrest to the arrestee and Section 50 of Cr.PC goes a step further whereby it is required that the ground of arrest are to be supplied 'forthwith'.

19. Chapter 5 of the erstwhile Cr.PC incorporates the provision in respect of arrest of person. Section 46 of erstwhile Cr.PC stipulates as to how the arrest is to be made. Necessary corollary is that this provision incorporates procedural safeguards in respect of the manner in which arrest is to be made. Article 21 of Constitution of India requires that life and liberty of a person shall not be curtailed without procedure established by law. Therefore, if the procedure established by law in the above noted provisions are not followed, it will amount to violtion of fundamental rights and consequently, arrest shall stands vitiated.

20. In this regard, it will be apposite to refer to judgment of Hon'ble High Court of Mumbai in the case titled as Kavita Manikikar v CBI Writ Petition No. 1142/2018. In the said matter, a female was arrested in violation of provision of Section 46(4) of erstwhile Cr.PC. Hon'ble High Court of Mumbai had declared the said arrest to be illegal and in utter violation of provisions contained in Section 46(4) of erstwhile Cr.PC. It was further held that arrest of petitioner is illegal and contrary to provision of Section 46(4) of erstwhile Cr.PC, however, CBI is not precluded to arrest the petitioner if investigation warrants so, by following the due process of law. This court in its order dated 13.05.2025 has also held that though the arrest of accused is illegal on the basis of ground of arrest having been not supplied, State had the liberty to complete the process as per law.

21. It was argued on behalf of accused that 'what is the law in this regard on the basis of which the re-arrest can be made. The tenor of argument indicated that there is no provision in the statute regarding re-arrest of accused. However, in the W.P.(CRL) 2045/2025 14 of 34 Chapter on Arrest of Person, Section 43(2) Cr.PC incorporates the provision 'if a person is arrested in terms of Section 43(1) and if there are reason to believe that such person comes under the provisions of Section 41, a police officer shall re-arrest him'. Similarly, Section 437(5) Cr.PC, which is part of the Chapter on Bail, incorporates a provision stipulating that 'any court which has released a person on bail under sub-section (1), or subsection(2), may, if it considers it necessary so to do, direct that such person be arrested and commit him to custody'. Further, Section 439(2) Cr.PC provides that 'a High Court or Court of Session may direct that any person who has been released on bail under this Chapter be arrested and commit him to custody'. 21.[1] One may argue that this provision relates to cancellation of bail before re-arrest of accused. In this regard, suffice it to observe that concept of re-arrest is not completely new to Cr.PC or to the judicial pronouncement as is argued by Ld. Defence Counsel. In the case titled as Mohd. Alim @ Abdul Alim v State of UP, Crl. Appeal No. 2376/2023, it is, inter-alia, held by the Hon'ble High Court of Allahabad that:

22. Further, in the case titled as Prahald Singh Bhati v NCT of Delhi, Appeal (crl.) 324 of 2001, it has been held as under: “In the instant case while exercising the jurisdiction, apparently under Section 437 of the Code, the Metropolitan Magistrate appears to have completely ignored the basic principles governing the grant of bail. The Magistrate referred to certain facts and the provisions of law which W.P.(CRL) 2045/2025 15 of 34 were not, in any way, relevant for the purposes of deciding the application for bail in a case where accused was charged with an offence punishable with death or imprisonment for life. The mere initial grant of anticipatory bail for lesser offence, did not entitle the respondent to insist for regular bail even if he was subsequently found to be involved in the case of murder. Neither Section 437(5) nor Section 439(1) of the Code was attracted. There was no question of cancellation of bail carlier granted to the accused for an offence punishable under Sections 498A, 306 and 406 IPC. The Magistrate committed a irregularity by holding that "I do not agree with the submission made by the Ld.Prosecutor in as much as if we go by his submissions then the accused would be liable for arrest every time the charge is altered or enhanced at any stage, which is certainly not the spirit of law". With the change of the nature of the offence, the accused becomes disentitled to the liberty granted to him in relation to a minor offence, if the offence is altered for an aggravated crime. Instead of referring to the grounds which entitled the respondent-accused the grant of bail, the Magistrate adopted a wrong approach to confer him the benefit of liberty on allegedly finding that no grounds were made out for cancellation of bail.”

23. It was also argued on behalf of accused that if after declaring the arrest of the accused persons as illegal, there subsequent arrest is approved, it will amount to rendering the law laid down by the Hon'ble Constitutional Courts as infractuous. This argument cannot be accepted for the reason that the purpose of procedural safeguards incorporated in statutes are required to be strictly observed in terms of law laid down by Hon'ble Constitutional Courts, it can never mean to permit or allow accused to have an advantage of lapse or inefficiency on the part of an officer of prosecuting agency. 23.[1] In the case titled as Vicky Bharat Kalyani v The State of Maharashtra & Anr. Writ Petition No.5254 of 2024, it was argued that it has been referred to the Larger Bench and therefore, cannot be relied upon. Para no. 66 of said judgment deals with terms of reference to Larger Bench, however, perusal of these questions/points raised in such reference to Larger Bench are in respect of application of Section 50 of erstwhile Cr.PC, whereas, the question and the observation in the earlier paragraph are in respect of the post non- compliance W.P.(CRL) 2045/2025 16 of 34 of Section 50 Cr.PC in terms of not providing grounds of arrest to accused. 23.[2] It was also argued that the reliance by the prosecution is such which amounts to noting the contentions of government Reader and they do not assume the status of law. However, a clear observation has been made in para no. 58 of the above judgment that any embargo or bar upon re-arrest could be pointed out and the court agreed with the contention that there is no bar for rearrest the person who are released for nonfurnishing the grounds of arrest in writing. It is further held that if accused are released on the grounds of not supplying the grounds of arrest leading to violation of provisions of Cr.PC would amount to infringing their constitutional right under Article 21 of Constitution of India, thereafter, if grounds of arrest are supplied to them, they cannot have any grievance. It is further apposite and germane to have reference to para no.57 of the said judgment and same is reproduced hereinunder:

W.P.(CRL) 2045/2025 17 of 34 looking at the background of the case, the Court would exercise jurisdiction in bail matters taking into account all the factors including merits of the matter; which in the cases of violation of alleged rights of the accused under Section 50 of Cr.P.C. would not be possible for the Court to exercise.”

24. The purpose behind the procedural safeguards and direction of Hon'ble Constitutional Courts to ensure that Grounds of Arrest to be provided to accused in writing is to ensure that accused is being clearly informed as to why he/she has been arrested and also to ensure that accused are in position to defend themselves since very beginning. The purpose of such safeguard can never been to let an accused go scot free for procedural lapses. It is trite law that procedure is handmaid of justice and the contention of the prosecution and Ld. Defence Counsel are required to be evaluated in this background.”

13. The learned counsel appearing for the petitioners contend that the arrest and subsequent judicial custody of the petitioners is illegal, being in violation of mandatory procedural safeguards enshrined in law. It is submitted that the first arrest of the petitioners was effectuated without supplying the grounds of arrest to the petitioners. The arrest memos were prepared in a cavalier and manipulative manner, reflecting a serious abuse of power by the police authorities. Reliance is placed on the decisions of the Hon‟ble Supreme Court in Pankaj Bansal v. Union of India: (2024) 7 SCC 576, Prabir Purkayastha v. State (NCT of Delhi): (2024) 8 SCC 254, and Vihaan Kumar v. State of Haryana & Anr.: (2025) 5 SCC 799, to submit that the statutory requirements governing arrest are not mere W.P.(CRL) 2045/2025 18 of 34 formalities and must be scrupulously followed. The learned counsel emphasise that the learned ASJ, by order dated 13.05.2025, had categorically held that the arrest of the petitioners was non-est. Further, vide order dated 09.06.2025, the same Court declined to grant permission to re-arrest the petitioners. Despite these binding orders, the police proceeded to re-arrest the petitioners on 10.06.2025 without seeking appropriate legal recourse, thereby acting in contravention of law.

14. It is contended by the learned counsel that there exists no statutory provision authorising re-arrest in such circumstances, particularly when the initial arrest has been declared non-est and such declaration has not been set aside by any superior court since the State chose not to challenge the said order. The learned counsel further argue that the subsequent application for police custody remand, moved before the learned Vacation Judge on 11.06.2025, was completely silent on the earlier judicial findings, and reflects deliberate suppression of material facts by the investigating agency. It is urged that the police sought to bypass the judicial process by presenting the same relief before a different forum without disclosing that similar relief had already been declined twice by the learned ASJ.

15. Further, the learned counsel contend that the judicial orders dated 11.06.2025 and 16.06.2025 remanding the petitioners to judicial custody suffer from a legal infirmity as they were passed without adjudicating on the legality of the arrest, which is a serious W.P.(CRL) 2045/2025 19 of 34 omission especially in view of the prior orders holding the arrest to be non-est. It is further contended that there was no fresh evidence or development justifying re-arrest or remand of the petitioners, and the reliance placed by the State on the judgments of the Bombay High Court and Kerala High Court is misplaced. It is argued that the Bombay High Court, in Vicky Bharat Kalyani v. State of Maharashtra & Anr: 2025 SCC OnLine Bom 193, did not lay down a conclusive ratio on the issue of re-arrest, as the matter was referred to a larger Bench. It is also stated that the Kerala High Court‟s decision in Babu M. v State of Kerala & Anr.: W.P. (CRL.) 240/2025 too, does not articulate any settled procedure for re-arrest in such circumstances and the said order is also under challenge before the Hon‟ble Supreme Court.

16. It is argued on behalf of the petitioners that allowing such a course of action would set a dangerous precedent, which would enable the investigating agencies to circumvent the judicial findings which are against them simply by serving fresh grounds of arrest and re-arresting an accused. Accordingly, it is prayed that the impugned orders dated 11.06.2025, 16.06.2025, and 04.07.2025 be set aside, as the same are contrary to law. On behalf of the State

17. The learned Additional Standing Counsel (ASC) appearing for the State contends that the arrest of the petitioners on 10.06.2025 was lawful and in strict compliance with procedural safeguards. It is W.P.(CRL) 2045/2025 20 of 34 submitted that the earlier order dated 13.05.2025, which held the arrest of the petitioners as non-est, was passed solely on the ground of procedural irregularity, i.e., non-supply of proper written grounds of arrest, and not on any substantive finding that there was insufficient material to justify arrest. In fact, the Court, in the said order, had clarified that the State was at liberty to complete the process afresh in accordance with law. It is argued that the petitioners were never released on bail; rather, they were released solely because their initial arrest was declared non-est due to technical noncompliance. Therefore, the present case is not one where the State was required to seek cancellation of bail.

18. It is submitted that after securing liberty to interrogate the accused persons in judicial custody, the Investigating Agency, upon re-evaluating the material on record and after ensuring full procedural compliance, re-arrested the petitioners on 10.06.2025 and produced them before the competent Court the very next day. It is further contended that the decision to arrest or re-arrest is purely within the domain of the investigating agency; and in the present case, sufficient material exists to justify the arrest, and all the procedural safeguards under law have also been followed.

19. The learned ASC submits that the judgments relied upon by the petitioners do not bar the re-arrest of a person whose initial arrest has been declared illegal. On the contrary, the observations of the High Courts of Bombay and Kerala indicate that re-arrest is permissible under law once procedural deficiencies in the initial W.P.(CRL) 2045/2025 21 of 34 arrest are rectified. The Bombay High Court, in Vicky Bharat Kalyani v. State of Maharashtra & Anr (supra) while considering a similar issue, has held that there is no bar to re-arrest an individual whose earlier arrest has been declared illegal on grounds of procedural error. It is further contended that though in this decision, some questions were referred to a Larger Bench, the portion relevant to post- non-compliance re-arrest stands independently supported by reasoning in the said decision. Similarly, the Kerala High Court in Babu M. v State of Kerala & Anr. (supra) has clarified that its finding on the illegality of arrest would not prevent the investigating agency from re-arresting the accused, provided such arrest is in accordance with law. As for the decision of Hon‟ble Supreme Court in Vihaan Kumar v. State of Haryana & Anr. (supra), it is pointed out that the judgment merely deals with the illegality of the arrest being violative of Article 22 of the Constitution of India and does not address the question of re-arrest at all. Therefore, it has no bearing on the issue involved in the present case.

20. It is contended by the learned ASC for the State that the object of procedural safeguards, such as furnishing written grounds of arrest, is to ensure that the accused is aware of the basis of his arrest so that he may prepare his defence. However, these safeguards are not intended to create a situation where an accused can avoid arrest altogether due to inadvertent lapses, particularly when such lapses have been cured. A contrary interpretation would not only defeat the ends of justice but also reduce the investigative process to a nullity. W.P.(CRL) 2045/2025 22 of 34 In this regard, reliance is also placed on decision in Rakesh Kumar Paul v. State of Assam: (2017) 15 SCC 67 wherein the Hon‟ble Supreme Court, while declaring the petitioner to be entitled to default bail due to non-filing of chargesheet within the prescribed time period, had clarified that the same would not prohibit the arrest or rearrest of the petitioner on cogent grounds in respect of the subject charge.

21. Accordingly, it is argued that the re-arrest of the petitioners on 10.06.2025, having been affected after complying with all statutory requirements and procedural safeguards, cannot be said to be illegal or an abuse of process.

22. This Court has heard arguments addressed on behalf of the petitioners as well as the State, and has carefully perused the material placed on record by either side.

23. One of the central contentions raised on behalf of the petitioners is that the investigating agency could not have unearthed or collected any new incriminating material between 13.05.2025 i.e., the date on which the learned ASJ declared their initial arrest as illegal, and 15.05.2025, when the police moved an application seeking permission for their re-arrest. It was contended that within such a short span of less than 48 hours, the police could not have possibly gathered any fresh evidence that could justify a second W.P.(CRL) 2045/2025 23 of 34 arrest. Attention was also invited to the proceedings before the learned Vacation Judge on 11.06.2025, wherein the Court had sought a specific explanation from the police as to what additional material had come to light post-13.05.2025 to warrant the re-arrest.

24. Insofar as this contention is concerned, in this Court‟s considered opinion, the aforesaid argument proceeds on an incorrect premise and an incorrect reading of the order dated 13.05.2025. It appears to proceed on the assumption that the arrest of the petitioners was declared illegal due to insufficiency of the material in possession of the investigating agency as on that date. However, a bare reading of the said order reveals that the learned ASJ had not undertaken any assessment whatsoever of the adequacy, sufficiency, or probative value of the material or evidence collected by the investigating agency against the petitioners. The order dated 13.05.2025 confined itself solely to the issue of procedural compliance with the constitutional and statutory safeguards governing arrest. Specifically, the Court found that the petitioners had not been supplied with adequate and meaningful written grounds of arrest as mandated by the Hon‟ble Supreme Court in a catena of decisions.

25. It is manifest from the said order that what the learned ASJ found deficient was the form and content of the written grounds of arrest actually handed over to the petitioners, which comprised merely a six-line description devoid of any factual allegations, casespecific details, or articulation of the evidence linking the petitioners to the offence. Such non-compliance rendered the arrest of the W.P.(CRL) 2045/2025 24 of 34 petitioners non-est. However, the learned ASJ did not enter upon any determination as to whether or not the police actually possessed sufficient material to justify the arrest of the petitioners. That question remained unaddressed and untouched. Therefore, it is evident from a bare perusal of the said order that the same did not address, nor was it called upon to assess, the sufficiency or relevance of the evidence collected by the police. Furthermore, it cannot also be said that the order dated 13.05.2025 having declared the first arrest non-est on procedural grounds, operated as a bar to future arrest based on the material already in possession of the police, so long as the arrest was now carried out in accordance with law, as the same was clarified by the learned ASJ itself in the last line of order which read as follows: “14.[1] ……It is clarified that since the arrest is held to be nonest on technical ground, State has liberty to complete the process as per law.”

26. It is, therefore, incorrect to argue that the re-arrest could only be justified on the basis of discovery of new material after 13.05.2025. Accordingly, the argument of the learned counsel for the petitioners that the re-arrest was impermissible in the absence of new material is unmerited.

27. It is to be reiterated that the learned ASJ had not even applied its mind to the sufficiency of evidence incriminating in nature or even its existence on merit while passing the order declaring the arrest being non-est and had gone a step further to clarify that the order W.P.(CRL) 2045/2025 25 of 34 declaring the arrest non-est was being passed solely on technical ground and the same order implied that the investigating agency was at liberty to complete the process as per law. Therefore it meant that after the procedural lapse of non providing the grounds of arrest was rectified, there would have been no bar to arrest the accused persons. Furnishing of Grounds of Arrest to the Petitioners

28. A key issue in the present matter also relates to compliance with the requirement of furnishing grounds of arrest, both at the time of the first arrest and upon the subsequent re-arrest of the petitioners.

29. It is undisputed that during the initial arrest, the petitioners were not provided with detailed written grounds of arrest. This formed the basis for the order dated 13.05.2025, whereby the learned ASJ declared the arrest as non-est, holding that such non-compliance violated the petitioners‟ fundamental rights and the settled law laid down in decisions such as Prabir Purkayastha v. State (NCT of Delhi): 2024 INSC 414. That order attained finality, as it was not challenged by the State.

30. However, at the time of the re-arrest on 10.06.2025, this Court finds that detailed grounds of arrest were furnished to each of the petitioners, which have been placed on record before this Court by the State alongwith the Status Report. These grounds specifically outline the alleged roles of the petitioners in the organised crime syndicate and the specific allegations against them for commission of W.P.(CRL) 2045/2025 26 of 34 alleged offences. The extract of grounds of arrest, supplied to one of the petitioner, i.e. petitioner no. 1, is set out below for reference: W.P.(CRL) 2045/2025 27 of 34

31. Therefore, at the time of re-arrest, the mandatory requirements of law, as interpreted by the Hon‟ble Supreme Court, were prima facie complied with. Thus, this Court is of the considered view that the defect which had vitiated the initial arrest was not repeated during the re-arrest, and the requirement of informing the accused of the grounds of arrest in writing was duly fulfilled. Whether Re-Arrest is Permissible After Declaration of Initial Arrest as Non-Est due to Procedural Irregularity?

32. The essential question that now falls for determination is whether an accused person, whose arrest has previously been declared non-est or illegal on procedural grounds, can be lawfully rearrested after compliance with the requisite legal formalities.

33. The petitioners have argued that such a re-arrest is impermissible, arbitrary, and violative of Article 21 of the Constitution. They rely on the judgment in Vihaan Kumar v. State of Haryana & Anr. (supra), urging that once an arrest is invalidated due to violation of procedural safeguards, the police cannot affect a fresh arrest in the same FIR. According to the petitioners, the appropriate course for the police would have been to seek cooperation for investigation rather than proceed with re-arrest. On the other hand, the State has contended that there is no statutory or constitutional bar on re-arresting a person whose earlier arrest was invalidated for noncompliance with procedural mandates. The State contends that once the procedural irregularity has been cured – as it was in the present W.P.(CRL) 2045/2025 28 of 34 case by furnishing detailed written grounds of arrest – there is no legal impediment to a lawful re-arrest.

34. This Court finds merit in the State‟s argument. Clearly, the Code of Criminal Procedure, 1973 as well as the Bharatiya Nagarik Suraksha Sanhita, 2023, does not contain any provision that either expressly prohibits or bars re-arrest of an individual in such circumstances. Moreover, to accept the proposition advanced by the petitioners would be to grant complete immunity to an accused from any future arrest, even in cases involving serious offences, merely because the initial arrest was vitiated by a procedural lapse, however, sufficient incriminating material is found against him, qua the same offence, later.

35. This Court is of the considered view that a lapse or omission on the part of the investigating agency, whether inadvertent or deliberate, cannot and should not result in a blanket immunity to the accused against any future arrest in the same case. To hold otherwise would amount to laying down a precedent which, in the long run, may prove perilous to the administration of criminal justice. It would essentially mean that a serious offender may escape the process of law solely on account of a procedural lapse committed by the investigating agency, even if sufficient material exists justifying his arrest.

36. This issue also raises a more complex question: what happens when the arrest of an accused in a serious offence is declared illegal W.P.(CRL) 2045/2025 29 of 34 or non-est purely on technical grounds? Can the State, after rectifying the procedural irregularity, not arrest the said accused again, even if cogent grounds exist? The learned counsel for the petitioners contended that once the arrest is held to be non-est, the petitioners cannot be re-arrested. This Court is unable to accept such a proposition of law. Let us test this argument in a hypothetical but plausible situation: suppose a police officer, either due to oversight or deliberately, does not communicate the grounds of arrest in writing, and therefore the arrest is declared illegal by the Court, however, at the same time clarifying that such declaration was solely on technical ground and the investigating agency was at liberty to rectify such lapse, it would necessarily lead to a conclusion that there was no immunity or bar in future to arrest the accused qua the same offence. Assume further that the case in question involves grave allegations – say, charges of organized crime, murders, etc. Should the procedural lapse committed by one officer, however serious, be allowed to permanently shield the accused from arrest, even after the defect has been remedied? The answer, in this Court‟s view, must be in the negative.

37. This question assumes even greater significance in the context of the present case, where the petitioners are not first-time offenders but individuals with a long list of criminal antecedents. As per the material placed on record, some of the petitioners are involved in as many as 10, 15, or even 26 criminal cases, including offences such as robbery, extortion, attempt to murder, and even murder. The W.P.(CRL) 2045/2025 30 of 34 provisions of MCOCA have been invoked in this case, and the prosecution‟s allegations, at least prima facie point towards the existence of a structured organised criminal syndicate. In such a context, the argument that an illegal or non-est arrest should completely shield the accused persons from future arrest, after complying with all procedural safeguards, cannot be accepted by this Court.

38. The view that re-arrest is not impermissible in such circumstances has also received judicial recognition. In Kavita Manikikar of Mumbai v. CBI: 2018 SCC OnLine Bom 1095, the Bombay High Court held that while the initial arrest of the petitioner therein was declared illegal due to violation of Section 46(4) of Cr.P.C. (arrest of a woman after sunset), it was clarified that the police was not barred from affecting a subsequent arrest after rectifying the procedural irregularity. The relevant observations in this regard are as under:

39. Similarly, in Vicky Bharat Kalyani v. State of Maharashtra (supra), the Division Bench of the Bombay High Court clearly observed in paragraph 58 of the judgment that there was no legal bar on re-arresting an accused who had been released earlier due to W.P.(CRL) 2045/2025 31 of 34 failure to furnish written grounds of arrest. Though the Division Bench referred six questions, including the issue of re-arrest, to a Larger Bench, it nevertheless recorded a clear and reasoned view in favour of permissibility of re-arrest in paragraph 58, and no contrary opinion was expressed anywhere in the said judgment. The relevant observations in this regard are as under:

W.P.(CRL) 2045/2025 32 of 34 arrested after sun-set for breach of Section 46(4) of Cr.P.C. Having held her arrest illegal, the Division Bench of this Court went on to observe that considering the seriousness of the allegations, she could be re- arrested after following due procedure of law. The same course can be adopted in the cases where the investigating agency wants to re-arrest the accused if they are released for non-compliance of Section 50 of Cr.P.C.” (Emphasis added)

40. On the other hand, reliance on decision in Vihaan Kumar v. State of Haryana & Anr. (supra) can be of no help to the petitioners, inasmuch as the said judgment does not decide the question of whether re-arrest is legally permissible after an initial arrest is declared illegal. The Hon‟ble Supreme Court in that case expressly noted that it was not necessary to adjudicate on that issue in the given set of facts of that case. Thus, no proposition of law was laid down in the said decision on the permissibility of re-arrest. The relevant observations in this regard are as under:

41. However, this Court‟s attention was drawn to the judgment of Rakesh Kumar Paul v. State of Assam (supra) by the State wherein while releasing the petitioner on default bail, on the ground that chargesheet had not been filed within a period of 60 days, the Hon‟ble Supreme Court had clarified that the release of petitioner shall not prohibit or otherwise prevent the arrest or rearrest of the W.P.(CRL) 2045/2025 33 of 34 petitioner on cogent grounds in respect of the subject charge. The relevant observations in this regard are as under:

42. Thus, in the considered view of this Court, there is merit in the argument advanced on behalf of the State that when an accused is released or his arrest is declared illegal solely on technical or procedural grounds – such as in the cases of Rakesh Kumar Paul v. State of Assam (supra), Kavita Manikikar v. CBI (supra), or Vicky Bharat Kalyani v. State of Maharashtra (supra) – the State cannot be precluded from taking steps to re-arrest such a person, provided the subsequent arrest is affected strictly in accordance with the procedure established by law. The mere fact that the earlier arrest was vitiated on account of procedural lapses does not, by itself, create any blanket immunity from future arrest, especially where the investigating agency continues to be in possession of material implicating the accused and there has been no adjudication on the merits of such material by the court declaring the arrest illegal. W.P.(CRL) 2045/2025 34 of 34 Conclusion

43. In view of the foregoing discussion, this Court finds that the initial arrest of the petitioners was declared non-est solely due to nonfurnishing of written grounds of arrest and not due to insufficiency of material against them. Further, detailed and sufficient grounds of arrest were furnished to the petitioners at the time of re-arrest on 10.06.2025. This Court also concludes that there is no statutory or judicial bar on re-arrest of an accused after curing the procedural defects of a prior illegal arrest; and that the judicial precedents, including those of the Hon‟ble Supreme Court and Bombay High Court (as discussed above) support the proposition that a subsequent arrest is permissible in law, provided procedural safeguards are followed.

44. The orders impugned in this petition are upheld, and the petition is accordingly dismissed. Pending applications are also disposed of.

45. It is however clarified that the observations made in this judgment are solely for the purpose of deciding present petition, and the same shall have no bearing on the merits of the case.

46. The judgment be uploaded on the website forthwith. DR.

SWARANA KANTA SHARMA, J JULY 15, 2025