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2026 DAILYLAW 4269 (ALL)

Umang Rastogi v. State Of U. P.

2026-01-22

Jai Krishna Upadhyay, Siddharth

body2026
JUDGMENT : 1. Counter affidavit filed on behalf of State is taken on record. 2. Heard Sri Anand Kumar, Sri Aditya Giri, Sri Raghav Dev Garg, learned counsel for the petitioners; Sri Kartikey Saran, learned Additional Advocate General assisted by Ms. Manju Thakur, learned A.G.A.-Ist for the State. 3. The above noted habeas corpus writ petition has been filed praying for following reliefs :- "(i) Issue a writ order or direction in the nature of Habeas Corpus directing the respondents herein to produce and release the corpus / petitioner no. 1 from their illegal custody, while declaring the arrest, detention and remand of the petitioner no. 1 as illegal, null and void for not following the directions of the Hon'ble Supreme Court in Mihir Rajesh vs. State of Maharashtra and Another; (ii) Issue a writ, order or direction in the nature of certiorari quashing the remand order dated 27.12.2025 passed by Civil Judge (S.D.) F.T.C./ A.C.J.M., Gautam Buddhanagar. (iii) Issue a writ, order or direction in the nature of mandamus to initiate departmental enquiry upon the actions of errant police officials of respondent no. 1. (iv) Issue any other writ, order or direction, which this Hon'ble Court deems fit and proper in the facts and circumstances of the present case. (v) To award the cost of the petition." 4. The brief facts of the case are that on 28.11.2025 at about 05:40 p.m, the petitioner's father, a permanent resident of Haldwani, Uttrakhand, was unlawfully abducted by Station House Officer, Police Station- Bisrakh, District- Gautam Buddhanagar, from business premises of the petitioners at Laxmi Nagar, Delhi. The petitioner's father was kept in illegal custody at Police Station- Bisrakh, Gautam Buddh Nagar, U.P., for 5 days. During his illegal detention, evidence was fabricated and F.I.R. No. 940 of 2025 was registered under Section 317(2) B.N.S against the father of petitioners on 03.12.2025 and he was belatedly produced before learned Magistrate. The petitioner's father filed a writ petition before the Delhi High Court and out of vengeance, the police arrested petitioner no. 1 without providing him any ground of arrest on 26.12.2025 from Haldwani, Uttrakhand. The petitioner no. 1 was taken before remand Magistrate at District Court, Surajpur at Gautam Buddhanagar on 27.12.2025 and no copy of arresting memo was provided to him. 1 without providing him any ground of arrest on 26.12.2025 from Haldwani, Uttrakhand. The petitioner no. 1 was taken before remand Magistrate at District Court, Surajpur at Gautam Buddhanagar on 27.12.2025 and no copy of arresting memo was provided to him. His counsel moved an application for seeking his release on the aforesaid ground on the same day which was rejected by the learned Magistrate on 27.12.2025. Hence, the petitioner has approached this court challenging the order of illegal remand dated 27.12.2025 passed and illegal arrest memo. 5. Learned counsel for the petitioner has submitted that it is clear from the above facts of the case that the police officials have acted in high handed manner and when it was pointed out to the learned Magistrate, he has also not applied his judicial mind to the requirements of law before affecting arrest of petitioner no. 1 and rejected the prayer of petitioner no. 1. 6. On the basis of counter affidavit filed by State the maintainability of the habeas corpus petition has been questioned by learned Additional Advocate General on the ground that it is not illegal arrest but arrest in accordance with law and the procedure of law has been followed in making the arrest of petitioner no. 1. Petitioner no. 1 is in judicial custody and therefore, his custody cannot be said to be illegal. It has been submitted that as per Annexure C.A.-5, which is the arrest memo of the petitioner no. 1, full compliance of the requirements of a valid memo of arrest has been made while affecting the arrest of the petitioner no. 1. It has been argued that the habeas corpus petition is devoid of merits and deserves to be dismissed. The petitioner no. 1 has criminal history of six cases as per DCRB report and therefore, he does not deserves any latitude from this court. 7. After considering the pleadings of the parties and the rival submissions, we find that the crux of the dispute between the parties is that the petitioner no. 1 was arrested without disclosure of grounds of arrest in the arrest memo brought on record as Annexure C.A.-5 with the counter affidavit and it was also not supplied to the petitioner no. 1, though his signature was taken thereon. It is being reproduced hereinbelow :- 8. 1 was arrested without disclosure of grounds of arrest in the arrest memo brought on record as Annexure C.A.-5 with the counter affidavit and it was also not supplied to the petitioner no. 1, though his signature was taken thereon. It is being reproduced hereinbelow :- 8. Learned counsel for the petitioners submits that it is clear from the above arrest memo that it is not in accordance with the requirements of clause 13 of the arrest memo hence the arrest and detention of petitioner no. 1 is illegal and therefore the habeas corpus writ petition filed by petitioner no. 2 for seeking release of petitioner no. 1 from illegal custody is maintainable. He has relied upon the judgment of Supreme Court in the case of Gautam Navlakha vs. National Investigation Agency (2022) 13 Supreme Court Cases 542 in support of his contention. He has also made reliance on the judgments of the Apex Court in the cases of Priya Indoria vs. State of Karnataka and others (2024) 4 SCC 749 and Mihir Rajesh Shah vs. State of Maharashtra and another (2025) SCC Online SC 2356 . Reliance on the judgment of this court in the case of Anwar Dhebar vs. State of U.P. and 2 others in Criminal Misc. Writ Petition No. 12507 of 2024 and judgment of the Bombay High Court in the case of Ajit Khan More vs. State of Maharashtra, through Inspector of Police of Wadgaon Nimbalkar Police Station , 2025 SCC Online Bom 2899 , has also been made. 9. Learned Additional Advocate General has relied upon the judgment of this court in the cases of Km. Rachna and another and State of U.P. and 4 others , in Habeas Corpus Writ Petition No. 362 of 2020 and Kanu Sanyal vs. District Magistrate, Darjeeling and others (1974) 4 SCC 141 10. After going through the authorities cited at Bar, we find that this court can entertain a habeas corpus writ petition, if it is demonstrated before the court that the arrest of an accused has been made without following the procedure established by law. The Apex Court in the case of Mihir Rajesh Shah (Supra) has clearly held in paragraph 46 that to achieve the objective of Article 22(1) of the Constitution of India, the grounds of arrest must be informed to every person arrested. The Apex Court in the case of Mihir Rajesh Shah (Supra) has clearly held in paragraph 46 that to achieve the objective of Article 22(1) of the Constitution of India, the grounds of arrest must be informed to every person arrested. In paragraph 49 it was held that the ground of arrest should be furnished to the arrestee in writing. Breach of any such requirements will render the arrest of arrestee illegal. 11. We further find that earlier there was no definite proforma of memorandum of arrest in the state of Uttar Pradesh and the investigating officer used to make his own memo of arrest and arrest of accused was made on its basis. Finding total anarchy in this regard, this court passed number of orders and thereafter the Director General of Police of State of U.P., got a proforma of arrest memo prepared and the same was directed to be circulated to all the Police Commissioners of State / all the Senior Superintendents of Police / Superintendents of Police of the State of U.P. Further all the Additional Inspector Generals of Police in the State, Zonal Additional Inspector Generals of Police and all the Police, Deputy Inspector Generals of Police of State of U.P were informed about the new arrest memo by the Director General of Police of the State by his circular dated 25.07.2025 reproduced hereinbelow :- 14. In the instant matter, admittedly, no such effort had been made by the learned Magistrate to ensure adequate legal aid to the accused petitioner and appropriate opportunity of hearing at the time judicial remand. Even the arrest memo does not contain any column regarding grounds of arrest of the petitioner. This very issue is primarily the bone of contention between the parties in the instant matter. Accordingly, this, being a clear non-compliance of the mandate under Section 50 of the Code which has been introduced to give effect to Article 22(1) of the Constitution of India, 1950, we are inclined to set aside the impugned order in view of law laid down by the Apex Court in Prabir Purkayastha (supra), Pankaj Bansal (supra) and Ashish Kakkar (supra). 15. In such view of the matter, the impugned order dated 26.12.2024 is hereby set aside. The arrest of the petitioner is also quashed. 16. The petitioner shall be set at liberty, unless required in connection with any other case. 17. 15. In such view of the matter, the impugned order dated 26.12.2024 is hereby set aside. The arrest of the petitioner is also quashed. 16. The petitioner shall be set at liberty, unless required in connection with any other case. 17. In light of the above, the writ petition is allowed. 18. Let the order be communicated to Director General of Police, Uttar Pradesh through Registrar General of this Court and accordingly, a circular be issued to all the Commissioners of Police / SSPs/ Sps for necessary compliance of Section 50 and 50A (now Section 47 and 48 B.N.S.S) in the light of the observations made above. 47. Person arrested to be informed of grounds of arrest and of right to bail. (1) Every police officer or other person arresting any person without warrant shall forthwith communicate to him full particulars of the offence for which he is arrested or other grounds for such arrest. (2) Where a police officer arrests without warrant any person other than a person accused of a non-bailable offence, he shall inform the person arrested that he is entitled to be released on bail and that he may arrange for sureties on his behalf. 48. Obligation of person making arrest to inform about arrest, etc., to relative or friend. (1) Every police officer or other person making any arrest under this Sanhita shall forthwith give the information regarding such arrest and place where the arrested person is being held to any of his relatives, friends or such other persons as may be disclosed or nominated by the arrested person for the purpose of giving such information and also to the designated police officer in the district. (2) The police officer shall inform the arrested person of his rights under sub-section (1) as soon as he is brought to the police station. (3) An entry of the fact as to who has been informed of the arrest of such person shall be made in a book to be kept in the police station in such form as the State Government may, by rules, provide. (4) It shall be the duty of the Magistrate before whom such arrested person is produced, to satisfy himself that the requirements of sub- section (2) and sub-section (3) have been complied with in respect of such arrested person. 1. Name with Alias and Age of Arrestee. 2. (4) It shall be the duty of the Magistrate before whom such arrested person is produced, to satisfy himself that the requirements of sub- section (2) and sub-section (3) have been complied with in respect of such arrested person. 1. Name with Alias and Age of Arrestee. 2. Name of Mother / Father / Husband of Arrestee 3. Mobile No. / Adhar No. of Arrestee 4. Present Address of the Arrestee 5. Permanent Address of the Arrestee 6. F.I.R No. __________ Sec. of Law __________ Police Station __________ 7. Place of Arrest 8. Date and Time of Arrest 9. Name, address, email ID and phone number / mode of intimation of person to whom information has been given about arrest and place of detention (Section 48(1) B.N.S.S) 10. Details of information given to the Nodal Police Officer (Section 48(1) B.N.S.S) 11. Name, Rank & PNO No. of the officers making arrest. 12. Reasons for Arrest A. For committing a cognizable offence in the presence of a police officer (Section 35(1)(a) B.N.S.S) B(i) To prevent such person from committing any further offence (ii) For the proper investigation of offence (iii) To prevent such person from eliminating any witness of the offence or from tampering such witness in any manner. (iv) To prevent such person from inducing, threatening or promising any person acquainted with the fact of the case so as to prevent him from disclosing such fact before the court or police officer. (v) Because when such a person is not arrested then his presence in the court whenever required cannot be ensured. Ground of Arrest (i) How is arrest necessary in the light of the statement of the arrested person and evidence as well as statement given by informant. (ii) All the material from which the involvement of arrested person in the crime in clear. (iii) All the material on the basis of which the arrest of the person charged with the said offence is required. (iv) All the material collected by the investigating officer till the time of arrest in respect of the person arrested which necessitated the arrested. (v) Details of the other material collected as documentary evidence, electronic evidence, etc., relating to the person arrested. (vi) Details of Sections of B.N.S.S and other Laws where evidence / material is available against the person arrested which is required for arrest. 14. (v) Details of the other material collected as documentary evidence, electronic evidence, etc., relating to the person arrested. (vi) Details of Sections of B.N.S.S and other Laws where evidence / material is available against the person arrested which is required for arrest. 14. In cognizable and bailable offences, was he informed about the right to bail ? (Section 47(2) B.N.S.S. 15. Whether any visible signs of trauma / injury present on the body of the arrestee ? (Section 38 B.N.S.S) A. During Arrest B. Other 16. Whether the arrested person has been informed about his / her legal rights / opportunity to meet a lawyer of his / her choice ? (Section 38 B.N.S.S) The accused was thoroughly informed about the reasons and grounds of arrest and his legal rights in the language understandable to him and the directions of the Hon’ble Supreme Court and the provisions of the B.N.S.S were followed during the arrest. Signature of the Arresting Officer Name and Rank ____________ P.S. _____________ Dated __________Received a Copy Signature / Thumb Impression of Arrestee Signature / Thumb Impression of Relative / Friend / Nominated Person Name & Signature of Witnesses S.I. No. Name, Mobile No. and Complete Address of Witness Signature Witness 1 Witness 2 " 12. After comparing the memo of arrest of this case quoted hereinabove Annexure CA-V (in vernacular), with the new memo of arrest forming part of the circular dated 25.07.2025 of the Director General of Police, U.P., also quoted hereinabove, we find that both the memo of arrest are the same but the requirements of giving the details of the grounds of arrest, as required under clause 13(1) to (vi) of the memo, have not been complied by the Sub-Inspector of Police of respondent no. 3 in Annexure C.A.-V. Therefore, we are constrained to observe that despite clearly indicating the requirements of the ground of arrest, by the Director General of Police of the State, his own Subordinate Officer of Police is not complying the same and therefore the purpose of new arrest memo having been made and circulated to all the police officers of the State has been frustrated. 13. A bare perusal of the memo of arrest shows that the grounds of arrest mentioned in paragraph 13 have been sub-divided in six sub-clauses. 13. A bare perusal of the memo of arrest shows that the grounds of arrest mentioned in paragraph 13 have been sub-divided in six sub-clauses. In the present case, requirement of not a single clause has been fulfilled by the investigating officer of the police. He has only stated that the accused has been acquainted of the offence committed by him and the sections wherein he has been implicated, after following the procedure of arrest and information of his arrest has been given to his father, Vinay Rastogi, on telephone. He has also been informed that he can meet his counsel and he has been acquainted of his rights to obtain bail. 14. We find that the requirements of clause 13 and its sub-clauses in the memo of arrest have not been complied. None of the sub-clause of Section 13 provides that an accused should only be informed about the offence committed by him and section of his implication, but the clause aforesaid requires that accused is required to be informed about all the material from which his involvement in the crime is clear and bring material on record on the basis of which the arrest of the person charged with the said offence is required. No details of the material collected by the investigating officer, till the time of arrest of petitioner no. 1, which necessitated his arrest was disclosed. Details of other material collected, documentary or electronic, relating to person arrested was also not disclosed. Even the details of sections of B.N.S.S and other laws, their supporting material and evidence collected against the arrested accused were not disclosed in the arrest memo. Therefore, it is clear that the arrest of the petitioner no. 1 was absolutely illegal and against the requirements of the arrest memo prepared by respondents themselves. The purpose of preparing the arrest memo was frustrated by the Sub-Inspector of Police of respondent no. 3. 15. It is high time that the police officials, who are not complying the requirements of the arrest memo and violating the constitutional mandate provided under Article 22(1) of the constitution of India and further violating Section 50 and 50A Cr.P.C / 47, 48 and B.N.S.S should be sternly dealt with. 3. 15. It is high time that the police officials, who are not complying the requirements of the arrest memo and violating the constitutional mandate provided under Article 22(1) of the constitution of India and further violating Section 50 and 50A Cr.P.C / 47, 48 and B.N.S.S should be sternly dealt with. The violation of the constitutional mandate, provision of Cr.P.C/ B.N.S.S and the direction of the Director General of Police of the State of U.P dated 25.07.2025 clearly amounts to dereliction of duty on the part of the police personnel investigating this case. The empty compliance of law and justification of the same before the court, as in this case by the respondents, deserves to be discouraged. 16. It is hereby directed that the violation of the aforesaid legal provisions by any police officer, while affecting arrest an accused, by not disclosing the grounds of arrest as per clause 13 of the memo of arrest, would amount to the misconduct of dereliction of duty by police official concerned and he shall be liable for being proceeded departmentally, after being placed under suspension , so that he may not perpetrate this illegality any more 17. Let this order by communicated to the Director General of Police, U.P., within period of one week by the Registrar (Compliance) of this court for necessary compliance. 18. The impugned remand order and order dated 27.12.2025 passed by Civil Judge (Senior Division), F.T.C. / Gautam Buddanagar in Case Crime No. 750 of 2025 under Section 317(2) and 317(4), P.S.- Bisrakh, District- G.B. Nagar, are hereby quashed. 19. The petitioner no. 1 is directed to be set free forthwith. 20. It shall be open for the respondents to proceed against the petitioner no. 1 strictly in accordance with law. 21. The habeas corpus writ petition is allowed 22. This order shall be complied by the concerned Magistrate, if a copy of this order certified by the counsel for the petitioner no. 1, downloaded from the official website of this Court is produced before him, till certified copy of this order is issued.