The Allahabad High Court recently ruled that signing of a recovery memo that explicitly mentions the articles recovered and listing the corresponding penal sections by an accused amounts to effective communication of the grounds of arrest to him [Nitin Kumar Singh @ Nitin Kumar v. State of UP and 4 Others]

The Bench of Justices Salil Kumar Rai and Pramod Kumar Srivastava dismissed a petition that challenged the judicial remand of an accused in a case related to fake degrees and marksheets at Monad University. 

"We conclude that the failure to incorporate the grounds in the Arrest Memo when the same were detailed in the simultaneously prepared and signed recovery memo is a procedural irregularity, not a fatal jurisdictional defect that would lead to the quashing of the remand order. The petitioner was apprised of his rights, and the core constitutional and statutory mandates were substantially adhered to," the Court said.

The judgment was delivered on the petition moved by accused Nitin Kumar Singh, who said that his arrest was illegal as the police failed to formally and explicitly communicate the grounds of arrest.

Counsel for the accused placed reliance on Pankaj Bansal v. Union of India and Prabir Purkayastha v. State to argue that the right to be informed of the grounds of arrest is an inviolable fundamental right emanating from Article 21 and a violation of this right automatically invalidates the arrest.

However, the State contended that the recovery memo - detailing the specific articles recovered and the corresponding statutory provisions in criminal law - was prepared concurrently with the arrest, read over to the accused persons and was voluntarily signed by all of them.

This action fulfilled the mandatory requirement under Section 50 of the Code of Criminal Procedure (CrPC) or Section 47 of Bharatiya Nagarik Suraksha Sanhita (BNSS) in substance, the State argued. The provisions state that the person arrested must be informed of the grounds of arrest.

The Court acknowledged that Supreme Court in the decisions cited by the petitioner held that any breach in informing the grounds of arrest renders the initial detention illegal.

However, the Court also noted that the top court itself in State of Karnataka v. Sri Darshan held that the judiciary should not elevate form over substance. A technical or procedural infirmity like an omission in a document cannot by itself be the sole basis for declaring a detention illegal if the accused in reality was fully aware of the reasons for his arrest, the Supreme Court had held in that case.

"The principle empowers the Courts to focus not on the letter of the procedural defect (the missing grounds in the Arrest Memo), but on the spirit of the constitutional mandate under Article 22(1). By relying on this precedent, we conclude that the petitioner's actual knowledge - demonstrated by their signature and acknowledgment on the accompanying Recovery Memo—fully satisfies the constitutional requirement, thereby rendering the defect in the Arrest Memo a non-fatal technicality that does not warrant quashing the entire detention process," the High Court held.

On the contention that the law laid down in case of Sri Darshan was in a murder case, but the present matter is not of such heinous nature, the Court expressed its disagreement and highlighted the impact of fake degrees.

“The police raid resulted in the recovery of a large number of fake and forged mark sheets, academic documents, and other incriminating materials from the premises, indicative of a massive, well-organized criminal enterprise. While an offence under Section 302 IPC results in the death or loss of life of a single person, the creation and distribution of fake academic records compromise the integrity of the entire social and professional fabric of the nation. It is an economic and social offense that causes large-scale ruin to an entire section of society by facilitating the employment of unqualified individuals in positions of public trust and responsibility. Such an offence is arguably a matter of public concern due to its widespread and lasting deleterious impact."

Thus, it opined that seriousness of the offence in the present case fully warrants rigorous application of the principle that substance prevails over form.

In this backdrop, the Court concluded that the recovery memo served as a direct, written and effective communication of the factual and legal grounds of arrest, thereby fulfilling the substantive constitutional requirement of Article 22(1).

Therefore, the Court rejected the petition and refused to grant interim bail to the accused.

Senior Advocate Vinay Saran with Advocates Ashutosh Mishra and Shashank Pandey represented the petitioner.

Additional Government Advocate Roopak Chaubey represented the State.

[Read Judgment]