Order 39

Order Details: COPY OF JUDICIAL PROCEEDINGS
Pdf Text: SC : 142/2024
FIR No. : 1188/2023
PS: Karol Bagh
U/s: 395/412/120-B IPC
State Vs. Raju Saini & Ors.
11.12.2025
I.A. No. 14/25:- Bail application of Kamal Kumar son of Hari
Singh.
ORDER:-
1. By this order I shall decide the bail application filed on
behalf of accused Kamal Kumar seeking regular bail.
2. Ld. counsel for the accused submits that accused was
arrested in the present case on 03.02.2024 and in terms of the
judgment in
Pankaj Bansal Vs. Union of India 2024, 7 SCC 576
and Prabir Purkayastha Vs. State 2024 8 SCC 254, since no
ground of arrest was communicated, therefore, the applicant is
entitled to be enlarged on bail. It is submitted that as recently as
the Hon’Ble Supreme Court in
Mihir Rajesh Shah Vs. State of
Maharashtra & Anr. Cr. Appeal No. 2195/2025 decided on
06.11.2025 it has been again reiterated that communication of
ground of arrest is mandatory in all offences and in case of non-
compliance the arrest and remand is rendered illegal and the
person is entitled to be set free. On merits it is argued that co-
accused Deepak has been granted bail and the role of the present
applicant is similar to the role of Deepak. Applicant has clean
antecedents and there are no chances of his running away from
trial.
3. On the other hand, Ld. Addl. PP for the State submits that
non communication of ground of arrest would not render the
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arrest illegal as the judgment of
Mihir Rajesh Shah (Supra)
applies prospectively and has no retrospective application. On
merits it is submitted that accused Kamal Kumar was present at
the spot and had caught hold of the victim and the co-accused
Depender had tied the victim with tape and rope on the chair and
thereafter the present applicant had shown the knife and
committed robbery of Rs. 39 lakhs.
4. I have heard Ld. Counsels for the parties and perused the
record.
5. In the present case, Ld. Counsel for the applicant has
categorically argued that he is only pressing non communication
of ground of arrest as a ground of bail and is not touching the
merits of the case. This court therefore, is not elaborating the
facts, suffice it to say that accused is facing trial u/s 302 IPC for
committing murder of his wife.
6. The present accused was arrested on 31.10.2023. In the
judgment of
Mihir Rajesh Shah (Supra) in para 58, the Hon’ble
Supreme Court has categorically held that the judgment would
apply “henceforth” this clearly shows that the judgment would
have prospective application and cannot have retrospective
application.
7. The Hon’ble High Court of Himachal in
Bali Ram Vs.
State of Himachal Pradesh 2025 SCC Online HP 5786 after
relying upon judgment of
Mihir Rajesh Shah(Supra) has held that
the communication of ground of arrest in all offences would
apply prospectively from the date of the pronouncement of
judgment.
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8. The Hon’ble Delhi High Court more recently in
Saad Vs.
State 2025 SCC Online Del 8751, after placing reliance on
State
of Karnataka Vs. Shree Darshan 2025 SCC Online SC 1702
wherein the Hon’ble Supreme Court after considering its earlier
decision clarified that mere absence of written grounds of arrest
does not, by itself, render the arrest illegal unless the accused
demonstrate actual prejudice or denial of fair opportunity to
defend himself.
9. It was also held by the Hon’ble Supreme court in
Shri
Darshan (Supra) that where the accused had access to legal
representation, availed legal remedies such as bail, the absence of
written ground, at best, is a curable defect.
10. The perusal of the record shows that applicant was arrested
31.10.2023. The remand papers would reflect that on the very
first day when the applicant was produced before the court, he
was represented by a counsel till committal and when the case
was committed Mr. Lekh Raj proxy counsel for Mr. Sunil Pawar
had appeared for the applicant. Therefore, it cannot be said that
accused was unaware about the grounds of his arrest.
11. Accordingly, no ground is made out to enlarge the present
applicant on bail simply on the ground that ground of arrest was
not communicated.
12. In so far as merits is concerned, charges have been framed
against the present applicant u/s 395/412 IPC, PW-1 Mukesh
Kumar had been examined, who in his examination in chief had
correctly identified the applicant. The role attributed to him is
that he had shown the knife before robbing the complainant of
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Rs. 39,00,000/-. The allegations are serious in nature. The role of
Deepak, as per the charge-sheet was that he was standing outside
the place of incident and keeping a watch. The role of the
present applicant is different from the role of Deepak who has
been granted bail. The bail application stands dismissed.
13. Put up on the date fixed.
14. Copy of the order be given dasti to the Ld. Counsel for the
accused. Copy of the order be sent to the Jail Superintendent for
information.
(ANKUR JAIN-I)
ASJ-04/Central/Delhi.
11.12.2025 km
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