Karolyn @ Caroline Kharnaior & Ors. vs State Of U.P. & Ors.

Heard, Sri Ishan Baghel, learned counsel for the petitioners and Sri Anant Pratap Singh, learned AGA along with Sri Girjesh Dwivedi, learned AGA.

This Habeas Corpus Writ Petition has been filed by the petitioners, namely, Karolyn @ Caroline Kharnaior, Celiona Syiemlih @ Celiona Kharnaior, V. Malswamutuwangi, Sushmita Datta, Riya Lamba, Muskan Lamba, Terisha Magar Thapa, Apsara, Susmita Chakravarti, Nikita Thapa, Ankita Chhetri, Alice, Pooja Das and Amandeep Kaur @ Amandeep Kaur Chhabra under Article 226 of the Constitution of India, challenging their arrest as illegal and unlawful on various grounds with following prayers:

The brief facts of the case to decide the issue of illegal detention in the instant petition are as follows:-

The first information report was lodged vide case crime no. 0078/2026 on 01.07.2026 at about 21:20 hours under Sections 3(5), 61(2), 318(4), 319(2), 336(3), 337, 338, 339 and 340(2) of Bharativa Nyaya Sanhita, 2023 (hereinafter referred to as BNS for brevity) and under Sections 66C and 66D of the information Technology Act, 2000 and Section 42(2) of the Telecommunication Act, 2023 with the aforesaid averments and allegations.

The Petitioners alongwith others were arrested for the allegations of commission of the aforesaid offences along with others. The petitioners/arrestees, along with the co-accused, were produced before the Special Chief Judicial Magistrate (Customs), Lucknow, on 02.07.2026 seeking first remand. The Learned Special Chief Judicial Magistrate (Customs), Lucknow, after perusal of the entire record, allowed the application of the investigating officer for judicial remand and sent them to jail.

By means of the instant petition, the petitioners have assailed the legality and validity of the arrest of the petitioners alleging that neither the arrest memo was prepared as per the mandate of Section 36 of Bharatiya Nagarik Suraksha Sanhita, 2023 (hereinafter referred to as BNSS" for brevity), nor same was furnished to the arrested persons consisting of specific grounds and reasons of arrest, in accordance with Article 22(1) of the Constitution of India and the provisions of Sections 47 and 48 of BNSS. It has been alleged that the grounds of arrest were never furnished to either arrested persons or their family members, therefore, the mandate of Section 48(3) of BNSS has also not been complied with, which is a straight-forward infringement of their right of being heard against the accusations and natural justice, as guaranteed under Articles 21 and 22 of the Constitution of India. Thus, writ of Habeas Corpus with prayer for declaring the arrest and detention of petitioners to be illegal and for setting aside the remand order dated 02.07.2026 passed by learned Special Chief Judicial, Magistrate (Custom), Lucknow, has been made.

The respondents filed a counter affidavit refuting the allegations made in writ petition filed by the petitioners, asserting that the arrest was in accordance with the provisions of BNSS and the Constitution of India. Paragraph nos. 7-9 of counter affidavit are relevant, wherein it has been specifically stated that the petitioners were informed the grounds of arrest as well as reasons of arrest not only through the memo of arrest, but also through the recovery memo, which was prepared simultaneously to that of arrest memo and well within the due presence and knowledge of the petitioners and other co-accused vide recovery memo, which bears the signature of the accused and copy of which was also received by them. With the above assertions, prayer was made to dismiss the petition.

No rejoinder-affidavit has been filed by the petitioners to the counter affidavit filed by the state, therefore, the pleadings in it remained uncontroverted.

Learned counsel for the petitioners submitted that the petitioners were arrested in gross violation of their constitutional safeguards envisaged under Articles 21 and 22(1) of the Constitution of India, as well as Sections 36, 47, and 48 of the BNSS, in following manner:-

Per contra, learned AGAs vehemently opposed the submissions of learned counsel for the petitioners and made the following submissions:-

We have considered the submissions of learned counsel for the parties and perused the records.

The F.I.R. has been lodged alleging therein that on a secret information of Cyber Crime received from a reliable source, a team was formed, which raided the 11^th Floor of Summit Building, Vibhuti Khand, Gomti Nagar, Lucknow on 30.06.2026 at 10:30 PM. In the raid, total 119 persons, which includes males and females, were found working. All of them were questioned regarding activities being carried out by them. During the raid, huge numbers of laptops, iPads, earphones and other materials, as disclosed above, were found, on which aforesaid persons were working, thus, after getting them opened and examining, the recovered devices were sealed vide recovery memo dated 01.07.2026 in presence of the persons found on the spot including the petitioners and a corresponding entry has been made in the General Diary on 01.07.2026 at 20:10 hours of Police Station Cyber Crime Police Station, District Lucknow East (Commissionerate Lucknow), copies of which have been placed on record as Annexure No.1 to the counter affidavit. Accordingly, the First Information Report was lodged on 01.07.2026 bearing Case Crime No. 0078/2026, under Sections 3(5), 61(2), 318(4), 319(2), 336(3), 337, 338, 339 and 340(2) of BNS, under Sections 66C and 66D of the Information Technology Act, 2000 and Section 42(2) of the Telecommunication Act, 2023, Police Station Cyber Crime, District Lucknow.

The fact of raid on the given time and place as well as presence of petitioners alongwith others are not in dispute. This fact is also not in dispute that the electronic equipments were seized and sealed by the raiding party on the spot itself and the petitioners were arrested from the spot alongwith others. The first contention of learned counsel for the petitioners that the petitioners were illegally detained by the concerned police on 30.06.2026 till evening of 02.07.2026 is not sustainable for the reason that looking to the number of persons present on the spot, who were involved in the alleged crime and they were having 103 laptops, 99 mouses, 116 head phones and 109 individual mobile phones, it may certainly have taken time in raid. There is also no dispute between the parties that raid was made on 30.06.2026, at 10:30 PM and all the persons found on the place were advised not to leave the place until the raid and search was completed. The police raid resulted in the recovery of large number of laptops, iPads, headphones, etc. and other incriminating material from the premises, indicative of a massive, well organized cyber crime enterprise and same was taken into custody and sealed on the spot itself vide the recovery memo and accordingly, the information was given to the police station concerned at 05:00 PM and the FIR was lodged at 09:20 PM on 01.07.2026 with the formal arrest of the persons involved in offence including petitioners and as per case diary, the initial investigation continued till 2:00 PM on 02.07.2026 and thereafter the petitioners along with others were produced before the remand magistrate same day. The allegations of illegal detention beyond 24 hours is not substantiated by the record and is therefore rejected.

The recovery memo is said to have been prepared at the place of occurrence in presence of the petitioners, which has been signed by the petitioners and as per recovery memo, copies of the same have also been received by the petitioners as it has been mentioned that after providing a copy of recovery memo to each accused, their signatures are being obtained. The recovery memo has been signed by Sri Prashant Kumar Verma, Sub-Inspector, Cyber Crime Cell, Lucknow as well as other police personnels present on the spot as witnesses. Further, it transpires from the recovery memo that the independent witness, present around the place, were also asked to be witness of the recovery memo, but none of them were ready for the same. Be that as it may, as we are not inclined to discuss the validity and authenticity of recovery memo, as same would somehow be touching merits of case, but the fact remains that recovery memo was prepared contemporaneously to the arrest of accused and arrest memos. The pleadings on record indicates that in the memo of writ petition, receipt of the recovery memo has not been denied and in the counter affidavit, it has specifically been pleaded that the recovery memo alongwith arrest memo was provided to the petitioners and no rejoinder affidavit has been filed controverting the same, therefore, the receipt thereof by the petitioners stands admitted.

In regard to the personal search memo appended to the arrest memo, it was argued by learned counsel for the petitioners that the same has been prepared on the pre-signed blank papers and the arrest memo does not bear the signatures of the petitioners. As per arrest memo alongwith personal search memo produced before this Court, at this juncture, it does not appear that the signatures were made prior to the preparation of the papers, however, it may be a matter of scrutiny after evidence.

It has next been argued by learned counsel for the petitioners that the arrest memo has been prepared in violation of Section 36 of BNSS and copies of the same have not been provided to the petitioners before their arrest and there is violation of Section 47 of BNSS and even the arrest memo which has been produced before this Court, does not contain the grounds and reasons of arrest, therefore, there was complete violation of the statutory provisions. The arrest memo indicates that the receipt has been taken on the personal search memo under Section 49 of BNSS, which has been appended alongwith arrest memo but there is no receipt on the arrest memo and learned AGAs have fairly admitted that it does not bear the receipt, however, it was argued that it may be an irregularity that the signatures have been taken only on receipt on the appended personal search memo but on account of it, it cannot be said that arrest memo has not been provided. Further, the recovery memo, which contains the grounds and reasons of arrest in detail has also been provided to the petitioners, therefore, the contention of learned counsel for the petitioners is misconceived and not tenable. Perusal of the recovery memo indicates that the laptops and calling mobile phones were examined and upon examination, the queries were made from them, upon which and the recovery affected on spot, the police party found it necessary to arrest the accused persons, accordingly, the following has been recorded in the recovery memo:-

The aforesaid contents of the recovery memo discloses that the grounds and reasons of arrest have been mentioned in the recovery memo. Even otherwise during the arguments, learned counsel for the petitioners could not dispute that grounds and reasons of arrest are mentioned in recovery memo but submits that even then the arrest is illegal as information has not been given to the family members within the stipulated period and there is no corresponding entry in the book maintained at police station, therefore, there is violation of Section 48 of BNSS.

In view of above, though the communication of grounds and reasons of arrest stands admitted through the recovery memo, yet an objection was raised that grounds and reasons of arrest were not communicated in accordance with law, so we deem it appropriate to consider as to whether the grounds and reasons of arrest disclosed in the recovery memo, copy of which has been provided to the petitioners, can be said to be sufficient compliance or not. Section 36 of BNSS provides 'Procedure of arrest and duties of officer making arrest' and Section 47 of BNSS provides that the 'Person arrested to be informed of grounds of arrest and of right to bail'. Section 36 and 47 of BNSS are extracted herein below:-

The aforesaid Sections indicate that whenever an arrest is to be made, the police officer making arrest shall prepare a memorandum of arrest, which shall be attested by atleast one witness, who may be a family member or a respectable member of locality where arrest is made and counter signed by the person arrested and if the memorandum is not signed by the family member, then he may get it informed to a relative or a friend or any other person. The arrested person is also entitled to be informed of grounds of arrest and about his right of bail. In this regard, Sub-Section (1) of Section 47 BNSS provides that the persons arresting shall forthwith communicate to the person arrested, the full particulars of the offence for which he is arrested or other grounds for such arrest and under Sub-Section (2) that he is entitled for bail. Thus, upon arrest of a person, a memorandum of arrest is to be prepared and he has to be informed the full particulars of offence for which he has been arrested and other grounds for such arrest. The arrested persons have also right to get it intimated to one of his relative, friend or known person under Section 48 of BNSS. However, the statutory provision does not provide any mode of communication of grounds and reasons of arrest, but it has to be communicated.

In Pankaj Bansal Vs. Union of India; (2024) 7 SCC 576, the Hon'ble Supreme Court, while explaining the combined effect of Article 22(1) of the Constitution of India read with Section 19(1) of the Prevention of Money Laundering Act, 2002, made the following observations:

In the case of Prabir Purkayastha Vs. State (NCT of Delhi) (supra), the Hon'ble Supreme Court, while reiterating the principles laid down in Pankaj Bansal (supra), has held that non-compliance of the constitutional requirements under Article 22(1) and 22(5) of the Constitution of India and statutory mandate would lead to the custody or the detention being rendered illegal and rejected the contention of learned ASG that there was no requirement under law to communicate the grounds of arrest in writing to the accused appellant. The relevant paragraphs 30, 31 and 48 are being quoted here under:-

(Emphasis added)

The ground of arrest are to be furnished to arrested person as early as possible is no longer res integra having been considered by the Hon’ble Supreme Court in case of Mihir Rajesh Shah Vs. State of Maharashtra (Supra), wherein Hon'ble Supreme Court considering the case of Pankaj Bansal (supra), Vihaan Kumar Vs. State of Haryana (Supra) and Prabir Purkayastha Vs. State (NCT of Delhi) (Supra), has held in para No. 29 that the requirement to communicate the grounds of arrest or the grounds of detention in writing to a person arrested in connection with an offence or a person placed under preventive detention as provided under Article 22(1) and Article 22(5) of the Constitution of India is sacrosanct and cannot be breached under any situation. Non-compliance of this constitutional requirement and statutory mandate would lead to the custody or detention being rendered illegal, as the case may be. The Hon'ble Supreme Court framed the following questions of law:

In answering the aforementioned questions, the Hon'ble Supreme Court made the following directions:

(Emphasis added by court)

A bare perusal of the aforesaid judgments of the Hon'ble Supreme Court as mentioned above, it is clearly emerged that furnishing the grounds of arrest to the arrestee is not a mere formality, but is mandatory binding of constitutional safeguards, which has been included in Part-III of the Constitution of India under the head of 'Fundamental Rights.' Further, it has been held that grounds of arrest must be furnished in writing so that the true intention and purpose of Article 22(1) of the Constitution of India, may be attained and in case of non-compliance, it will result in breach of constitutional and statutory safeguard rendering the arrest and detention illegal and the person will be entitled to be set at liberty. Article 22(1) of the Constitution of India is extracted herein below:-

Reverting back to the facts of instant case, learned AGAs submitted herein above that arrest memo and recovery memo was prepared and provided to the petitioners at the time of arrest itself with the details of grounds of arrest and reasons of arrest as well, whereas the petition has been filed by the petitioners seeking the arrest illegal for not giving the grounds of arrest. We have meticulously examined the first information report vis-a-vis recovery memo prepared on the spot during the raid conducted by the police. Recovery memo is the plinth of first information report of the subjected petition and perusal of the contents of which indicates holistic details of modus operandi adopted by the petitioners to commit the crime, instruments used at the scene and malafide intention to extort money in illegal manner and consequential seizure of the electronic devices. Perusal of counter affidavit to petition filed by learned AGAs, demonstrates that arrest memo and recovery memo have been prepared by the investigating officer with the case diary. In the arrest memo it is mentioned that the evidence of cyber crime has been found in the recovered devices, therefore, it is apparent that through the arrest memo read with recovery memo, petitioners have come to know about the grounds and reasons of arrest. Hence, from the discussion made here in above, we reached on the conclusion that grounds and reasons of arrest have been communicated to the petitioners as the receipt of recovery memo-has not been put in disagreement or in dispute.

The recovery memo specifically indicates that at the time of arrest, the word file pertaining to commission of offence was found open and accordingly the pdf of same was saved. The details are set out in such a way that any person of ordinary prudence can understand them easily, what to say about petitioners, who were found involved in the act or the offence. On the top of same, the details of offences given in recovery memo found place in shape of corresponding entry in general diary after arrest of petitioners and on conclusion of seizure of incriminatory items and documents and consequential sealing without any delay, stamping the accuracy of proceedings. Even otherwise the cyber fraud, which was being committed, has been disputed and the plea has been taken that petitioners did not know, which cannot be accepted in the facts and circumstances of the case.

Here, it is sacrosanct to mention that we can't lose sight of the mandates and standards set out by Hon'ble Supreme Court regarding supplying the grounds of arrest to an arrestee, however, in case the grounds of arrest has been furnished to the arrestee in form of a contemporaneous document prepared at the time of arrest, the receipt of which is not disputed, then same may be safely considered not only the mandatory statutory compliance but also to ensure the constitutional safeguard of right to life and personal liberty, which can not be curtailed without the procedure established by law. In Mihir Rajesh Shah (Supra), the Supreme Court specifically refers silence in the statute with regard to the mode, nature time and stage at which the grounds of arrest have to be communicated. Mentioning the exception, the Hon’ble Supreme Court has observed that there may be the situations where in it may not be practically possible to supply the arrested person at time of his arrest or immediately thereafter. Therefore, a balance must be struck between compliance of constitutional and the statutory mandated safeguards, vis-a-vis the effective discharge of lawful statutory law, enforcement of duties and responsibilities cast upon the state agencies.

In Vihaan Kumar Vs. State of Haryana (Supra), Hon'ble Supreme Court observed that in case a contemporaneous record is prepared mentioning the grounds of arrest, then the entries in the general diary may be used for communication of grounds of arrest if the entries in this regard is found to be incorporated in the general diary. The Hon’ble Supreme Court, in the case of, State of Karnataka Vs. Sri Darshan Etc.; 2025 SCC OnLine SC 1702, per which Hon'ble Supreme Court addressing the issue of ground of arrest observed in para no. 20 that the constitutional and statutory framework mandates that arrested person must be informed of grounds of arrest, but neither provision prescribes a specific form or insists upon the written communication in every case. Judicial precedents have clarified that substantial compliance with these requirements is sufficient, unless demonstrable prejudice is shown.

Relying on State of Karnataka Vs. Sri Darshan Etc. (Supra), a coordinate bench of this court at Allahabad, in the case of Nitin Kumar Singh @ Nitin Kumar Vs. State of U.P. and Others (Supra), also found that failure to incorporate the grounds of arrest in arrest memo, when the same is detailed in simultaneously prepared and signed recovery memo, is a procedural irregularity and not fatal jurisdictional defect that would lead to the quashing of remand order or arrest.

An argument was also advanced that the format of arrest memo has been framed and circulated for furnishing the grounds of arrest to the arrestee in this State of Uttar Pradesh, therefore, non-furnishing of grounds and reasons of arrest on the same would render the arrest illegal. However, in view of aforesaid discussion, it may be only an irregularity and not illegality, which may render the arrest illegal, particularly in the peculiar facts and circumstances of the case in hand, where arrest was a consequence of a raid and a total 119 arrestees were apprehended including petitioners committing cyber fraud, which is detrimental not only to the political, economic and social fabric of the country, but also confidence and trust of the foreign nationals to the country. We also deem it appropriate to notice here that the Government of Uttar Pradesh, in the name of Hon’ble Governor, has framed rules known as ‘The Uttar Pradesh Bharatiya Nagarik Suraksha Rules of 2024’ (herein after referred as’ Rules, 2024), in which ‘Form No.6(IIF-III) Arrest/Court Surrender Memo’ has been framed in Appendix-A, which is not in consonance with the formant for Memo of Arrest prepared in pursuance of an order passed by this Court and law laid down by Hon’ble Supreme Court, therefore, the Rules are required to be amended accordingly and in these circumstances also it may be only an irregularity and not illegality.

Applying the law laid down herein above, in the facts of instant case, it is apparent that the police prepared two documents contemporaneously, first is arrest memo with personal seizure memo and second is recocery memo. It is apposite to mention that the law always prioritize the substantial compliance over a procedural or technical compliance, therefore, a technical defect or irregularity in a document may not invalidate the entire proceeding if the substantial compliance has been made. Here, the circumstances show that the petitioners had come to know the grounds and reasons of arrest by way of arrest memo as well as through recovery memo, which was prepared alongwith memo of arrest and furnished to them spontaneously. The recovery memo also bears the signatures of the petitioners, respectively, which demonstrates not only the acknowledgment of recovery memo, but also knowledge of the grounds of arrest and reasons of arrest mentioned in the said recovery memo to the petitioners, which has also not been disputed by petitioners.

Next learned counsel for the petitioners submitted that we accept it, even then the provisions made in Section 48 of BNSS remains uncomplied as the family members/friends/known of the petitioners have not been intimated immediately after arrest and no corresponding entry had been made to this effect by the police and learned Magistrate has also failed to consider about compliance of the mandatory provisions.

In view of above, only issue left to be considered in this case is as to whether the provisions of Section 48 of BNSS have been complied or not and if not in totality then, what would be it’s effect. Section 48 of BNSS is extracted below:-

Sub-Section (1), (2) and (3) of Section 48 BNSS is to be complied by police and Sub-Section (4) by the Magistrate, when the arrested person is produced for remand. However, no consequence thereof has been provided and this Court also fails to come across any law under which, for violation of the said provisions, the arrest can be declared to be illegal. Sub-Section (1), (2) and (3) provides that every police officer or other person making any arrest 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 mentioned by the arrested person for the purpose of giving such information and also to the designated police officer in the district and he shall also inform the arrested person of his rights under Sub-Section (1) as soon as he is brought to the police station and an entry to this effect shall be made in a book to be kept in the police station in such form as the State Government may, by rules, provide.

The State of Uttar Pradesh in the aforesaid Rules of 2024, in Rule 25 has made a provision for arrest information booklet, in which it has been provided that one Sub-Inspector of Police is designated in each District Police Control Room and each Police Station to keep himself updated with the names and addresses of the persons arrested and to collect and maintain complete information relating the names and addresses of the arrested persons. It has also been provided that an entry of the fact as to who has been informed about the arrest of such person shall be made in a register to be maintained at the Police Station and in the CCTNS software alongwith such information as may by specified by the Government of India. The Rule 25 is extracted herein below:-

Adverting to the facts of the present case, the learned AGAs on the basis of counter affidavit had argued that the relatives etc. of the petitioners, to whom they had asked to inform, were informed and a C.D.R. of the calls has been annexed alongwith the counter affidavit. However, he submitted that the corresponding entry into the general diary has not been made. However, it has not been disclosed before the Court that as to who has been designated in the police station concerned to keep the records and as to whether the information has been mentioned in the arrest information booklet or not as provided under the Rules. However, learned AGAs had argued that the C.D.R. showing the calls made to the relatives and friends etc. of the petitioners is on record of the concerned case, which is record of Police Station, therefore, there is sufficient compliance.

It is noticed that in the memo of arrest of the petitioners, the names and mobile numbers of the persons nominated by the petitioners, to whom information is to be given, has been disclosed. It is not the case of the petitioners that the persons, to whom the information was to be given, were not nominated by them and the telephone number were not belonging to the person called authentic. However, it is true that the respondents have to place on record or show the entry of such information in the concerned booklet. Thus, the complete compliance of the aforesaid provision cannot be shown by the respondents. However, it was argued that since the bail applications were filed after the arrest of the petitioners, therefore, it was well within the knowledge of not only the petitioners but their relatives, friends etc., to whom they wanted to get informed. The C.D.R. indicated that the phone calls have been made to the relatives etc. of the petitioners before producing the petitioners before the Magistrate. It is an admitted fact that all the petitioners are residents of North-East and they have failed to give any local address even in the petition and except one petitioner, none of the petitioners have given their local address. Admittedly, the nominated persons upon whom calls have been made, belong to seven sisters states of India (North-East), therefore, the information rightly been given through the telephone, which is within time as per law laid down by the Hon’ble Supreme Court also.

In Mihir Rajesh Shah (Supra), Supreme Court has explained 'forthwith' and observed that such information must be supplied to the arrested person within a reasonable time and in no event later then two hours prior to the production of the arrestee before the magistrate for remand proceedings.

In view of above, once, it is established that the petitioners were furnished grounds and reasons of arrest through the recovery memo and the phone calls were made to the nominated persons, therefore, procedural omission or a failure to record the information in the general diary does not automatically render the foundational arrest illegal, in its entirety.

So far as first remand order passed by learned Magistrate is concerned, it is necessitated to mention here that at the time of production of accused and seeking the remand, the entire case diary as well as general diary were produced before the magistrate and accordingly the remand Magistrate allowed the remand of the petitioners after perusal of entire material placed by the investigating agency. Although, the order passed by learned magistrate is on a printed proforma, which appears not having the complete and searching in itself with regards to details and compliance of Sections 47 and 48 of BNSS, however, since the facts of furnishing grounds and reasons of arrest has been established by above detailed discussion, hence, same can not be a ground to hold the arrest illegal. Furthermore, in light of Vihaan Kumar Vs. State of Haryana (Supra), even assuming a procedural irregularity or non-disclosing the entire contents required for passing in a remand order, the arrest or remand order does not automatically vitiate the subsequent valid remand order passed by a competent judicial magistrate. One of the petitioner no. 14 namely Amandeep Kaur has been enlarged on bail by this Court and bail applications of others are pending before this Court after rejection from the concerned Courts.

In view of above and considering the over all facts and circumstances of the case, the instant petition has been filed on misconceived grounds, which is not tenable, thus, the petition being devoid of merits deserves to be dismissed. Accordingly, the petition is hereby dismissed. However, the dismissal of the petition shall not construe any expression of opinion on the merits of the case i.e. bail or trial or any other proceeding.