Arrested Person Must Get Adequate Time To Consult Lawyer Before Remand: Delhi HC

It is definitely a matter of utmost significance to note that the Delhi High Court in a most learned, laudable, landmark, logical and latest judgment titled Marfing Tamang @ Maaina Tamang v. State (NCT of Delhi) in CRL.M.C. 4391/2024 & CRL.M.A. 19329/2024 and cited in Neutral Citation No.: 2025:DHC:672 that was pronounced as recently as on February 4, 2025 has minced just no words whatsoever to hold most unambiguously that arrested persons must be given the grounds for arrest immediately upon arrest and that they must be given adequate time to consult their lawyer before remand hearings. It was also clarified by the Court stating that this is to ensure that arrested persona have a meaningful opportunity to challenge their remand to police or judicial custody. We also need to be mindful of the fact that a Single Judge Bench comprising of Hon'ble Mr Justice Anup Jairam Bhambani have minced just no words to state in no uncertain terms that Section 50 of the Code of Criminal Procedure (CrPC) calls on the police or any other agency making the arrest without a warrant to "forthwith" communicate the grounds for such arrests.

What also merits mentioning is that the Delhi High Court made these key observations while hearing a plea that had been filed by a man named Marfing Tamang (petitioner) challenging a May 2024 Trial Court order that remanded him to police custody in a rape case. It was most decisively held by the Court that the petitioner's arrest was unlawful due to non-compliance with Section 50 CrPC and Article 22(1) of the Constitution, as he was not immediately informed of the grounds for his arrest. Very rightly so!

At the very outset, this brief, brilliant, bold and balanced judgment authored by the Single Judge Bench comprising of Hon'ble Mr Justice Anup Jairam Bhambhani of Delhi High Court sets the ball in motion by first and foremost putting forth in para 1 that, "This case concerns an analysis of the precise definition of the word "forthwith" as used in section 50 of the Code of Criminal Procedure Code, 1973 ('Cr.P.C.') and the scope of the legal obligation it imposes on the State to supply the 'grounds of arrest' to an arrestee."

As we see, the Bench states in para 2 that, "By way of the present petition filed under section 482 Cr.P.C., the petitioner impugns order dated 18.05.2024 passed by the learned Metropolitan Magistrate, Tis Hazari District Courts, Delhi whereby the learned Magistrate remanded the petitioner to police custody for 02 days in case FIR No. 157/2024 dated 17.05.2024 registered under sections 342/344/365/368/370/370(A)/372/373/376/120B/34 of the Indian Penal Code, 1860 ('IPC') and sections 3/4/5/6 of the Immoral Traffic (Prevention) Act 1956 ('ITP Act') at P.S.: Kamla Market, Delhi."

To put things in perspective, the Bench envisages in para 3 that, "Briefly, the allegation against the petitioner is that he was the 'Manager' of an establishment which was inter alia engaged in the sexual abuse and exploitation of victims and was living-of the gains of such activity, based on which allegation the subject FIR came to be registered against the petitioner."

As it turned out, the Bench enunciates in para 4 disclosing that, "Subsequently, the Investigating Officer ('I.O.') moved an application seeking the petitioner's custody; and vide order dated 18.05.2024 passed by the learned Magistrate, the petitioner was remanded to police custody for 02 days. The petitioner was thereafter remanded to judicial custody for 14 days vide order dated 20.05.2024 passed by the learned Magistrate."

Simply put, the Bench observes in para 5 revealing that, "Pursuant to notice being issued on the present petition on 28.05.2024, the State has filed Status Report dated 08.06.2024 in the matter."

Do note, the Bench notes in para 30.7 that, "If any ambiguity were to remain regarding the interpretation given by the Co-ordinate Bench in Pranav Kuckereja (supra), this court would further hold that the word "forthwith" appearing in section 50 Cr.P.C. mandates the Arresting Officer ('A.O.') to serve upon an arrestee the grounds of arrest simultaneously with the issuance, or as part, of the arrest memo."

Do further note, the Bench then notes in para 30.8 that, "There is a reason why the above interpretation of the word "forthwith" is the only interpretation that is in consonance with the constitutional mandate that a person cannot be deprived of his liberty mechanically or needlessly. And the reason is that though a person may be detained for enquiry or interrogation, it is only when an I.O. forms an opinion that there are some justifiable grounds to arrest a person that he would place the person under arrest. Once the grounds for requiring a person's arrest have been formulated in the investigating officer's mind, there can possibly be no reason why those grounds cannot be reduced into writing and communicated to the person simultaneously at the time of arrest."

Quite rationally, the Bench then further also notes in para 30.9 that, "Therefore, in the opinion of this court, any other connotation of the word "forthwith" would not only dilute the plain meaning of that word but would also erode the fundamental right of a person not to be deprived of his liberty, without being expressly and formally informed as to why he was being arrested, so also to enable him to seek legal recourse against such arrest."

Notably, the Bench then points out in para 30.10 that, "It must also be observed that in its decision in Pranav Kuckereja (supra) the Co-ordinate Bench has in fact suggested that a column be incorporated in the format of an 'Arrest Memo' requiring the I.O./A.O. to pen-down the grounds of arrest then-and-there, which would streamline and ensure that such grounds are communicated to the arrestee forthwith at the time of issuing the arrest memo."

As a corollary, the Bench then points out in para 31 that, "In light of the above, without addressing the controversy as to whether the petitioner stood deprived of his liberty once he reached the police station at 11:30 a.m. on 17.05.2024, there can be no contest that the petitioner was formally arrested when the arrest memo was issued to him i.e., at 06:30 p.m. on 17.05.2024. In compliance of section 50 of the Cr.P.C., as interpreted above, the I.O. was required to serve the grounds of arrest upon the petitioner simultaneously with the issuance of the arrest memo. This was admittedly not done."

Frankly speaking, the Bench then points out in para 32 stating that, "Accordingly, in the opinion of this court, the arrest of the petitioner is vitiated for non-compliance with the mandate of section 50 of the Cr.P.C. and Article 22(1) of the Constitution."

Quite glaringly, it is then pointed out by the Bench in para 33 that, "Furthermore, a perusal of order dated 18.05.2024, whereby the learned Magistrate was pleased to grant a 02-day police custody remand of the petitioner, shows that the learned Magistrate proceeded on the basis that communication of the grounds of arrest by the I.O. in writing to the petitioner at 04:40 p.m. on 18.05.2024 (through the petitioner's legal counsel) within 24 hours of his arrest, though after the remand application had been filed, was sufficient compliance with the requirements of section 50 Cr.P.C. since the remand order was passed later at 05:30 p.m., which afforded to the petitioner adequate time and opportunity to know the grounds for his arrest, to be able to resist the remand order."

Truth be told, the Bench then holds in para 34 that, "This was clearly an erroneous interpretation and application of the law by the learned Magistrate, since furnishing the grounds of arrest in writing just about an hour before the remand hearing in the present case, cannot possibly be due or adequate compliance of the requirements of section 50 Cr.P.C., which mandates that grounds of arrest must be communicated to an arrestee forthwith that is to say simultaneously and immediately upon the arrest of such person."

It cannot be lost sight of that the Bench points out in para 35 that, "This court is constrained to observe that the via media adopted by the learned Magistrate, whereby the learned Magistrate directed the I.O. to serve the grounds of arrest in writing upon the petitioner after the petitioner had already been produced in court; and then observing that since the remand hearing took-place about an hour later, it was sufficient compliance of the law, reduced the petitioner's right under section 50 Cr.P.C. to a farce."

For clarity, the Bench then further clarifies in para 36 that, "In order to bring abundant clarity in the matter, this court would also observe that sufficient time must given to an arrestee after the grounds of arrest have been served upon him in writing, to enable the arrestee to engage and confer with legal counsel, the test being that the arrestee must have meaningful opportunity to resist his remand to police custody or judicial custody."

Further, the Bench then directs in para 37 holding that, "Accordingly, remand order dated 18.05.2024 also stands vitiated and is set aside."

Resultantly, the Bench then holds in para 38 directing that, "Accordingly, remand order dated 18.05.2024 also stands vitiated and is set-aside."

What's more, the Bench then propounds in para 39 stipulating that, "However, since the petitioner's arrest is being set-aside on the ground of non-compliance of the mandatory requirements of section 50 of the Cr.P.C. and Article 22(1) of the Constitution, but the petitioner must continue to participate in the proceedings arising from the subject FIR in which chargesheet has been filed, this court deems it appropriate to direct that the petitioner - Marfing Tamang s/o Karnal @ Karan Bahadur Tamang - shall be released from judicial custody, subject to furnishing a personal bond of Rs. 25,000/- (Rs. Twenty-five Thousand Only) with 02 local sureties in the like amount, to the satisfaction of the learned trial court."

For clarity, the Bench clarifies in para 40 stating that, "Needless to add, nothing in this judgment is an expression on the merits of the pending case."

What's more, the Bench then adds in para 41 stating that, "As a result, the present petition is allowed, in the above terms."

Still more, the Bench then further adds in para 42 mentioning that, "Pending applications, if any, also stand disposed-of."

Finally, the Bench then concludes by holding in para 43 that, "A copy of this judgment be forwarded to the Jail Superintendent for information and compliance expeditiously."

All told, we thus see manifestly that the bottom-line of this notable judgment by the Delhi High Court is that the arrested person must get adequate time to consult lawyer before remand. It thus merits no reiteration that the same must be adhered to so that fair trial can take place. There can definitely be just no denying or disputing it!