Know your law

Illegal Arrest

Illegal Arrest: The Right to Know Why You Are Arrested

The Indian Constitution guarantees every citizen the right to life and personal liberty under Article 21.
This includes protection against illegal arrest. Article 22(1) ensures that no person can be detained
without being told the grounds for arrest. Courts have repeatedly held that failure to inform the accused
makes the arrest unlawful and requires immediate release.

The Constitutional Framework and Judicial Evolution

In Pankaj Bansal v. Union of India (2023), the Supreme Court held that investigation agencies must
provide written grounds of arrest at the time of detention. Non-compliance makes the arrest invalid. Para 45
emphasizes that written grounds must be given “as a matter of course and without exception.”

In Prabir Purkayastha v. State (NCT of Delhi) (2024), the Court clarified the difference between
“reasons for arrest” (general procedural justification) and “grounds of arrest” (specific facts requiring
detention). Grounds must be communicated in writing and must empower the accused to seek bail or challenge
custody.

Strict Compliance: A Fundamental Right

In Vihaan Kumar v. State of Haryana (2025), the Supreme Court declared that failing to give written
grounds of arrest violates Articles 21 and 22(1), making the arrest void from the beginning. Later judicial
steps like remand or chargesheet cannot “cure” the illegal arrest. Agencies must prove compliance using
contemporaneous records.

High Court Position: Immediate Communication Required

In Pranav Kuckreja v. State (2024), the Delhi High Court interpreted “forthwith” in Section 50 CrPC
to mean “immediately.”
In Marfing Tamang v. State (2024), the Court held that grounds must be recorded in the arrest memo
itself for transparency. Any delay erodes the right to liberty.

Recent rulings reinforce that informing grounds of arrest is a constitutional mandate, not a formality.
Arrest without written grounds is inherently illegal, and the detainee must be released. The judiciary
emphasizes that personal liberty is paramount and cannot be violated by arbitrary police action.

Writ Petition Maintainability — Elections of Private Societies

The maintainability of a writ petition under Article 226 in matters related to internal elections of
societies has been consistently clarified by Indian courts. A society becomes amenable to writ jurisdiction
only if it performs a public duty or if the dispute contains a public law element.

In Ramakrishna Mission v. Kago Kunya, the Supreme Court held that even if an institution serves the
public, it does not become subject to writ jurisdiction unless it performs functions similar to sovereign or
governmental duties, with deep or pervasive state control.

In K.K. Saksena v. ICID, the Court clarified that even if a body performs welfare or public functions,
its internal matters (contracts, elections, member disputes) remain private and cannot be challenged through
writ unless the action relates to a statutory or public duty.

High Courts have applied this in several cases. In Sushil Kumar v. Central Registrar of Cooperative
Societies, it was held that society bylaws are a private contract, and violation of bylaws does not
involve public law.

In Dr. Saravana Kodandapani v. All India Ophthalmological Society, it was found that internal
elections of professional societies are not subject to writ since they do not perform statutory or sovereign
functions and are not under State control.

Similar reasoning was applied in Sajal Mitra v. Institution of Engineers (India), where regulatory
oversight was distinguished from public duty. Internal election disputes were held to be purely private.

Thus, Indian courts have made it clear: writ petitions regarding private societies’ elections are not
maintainable unless the society performs a public duty, is under pervasive government control, or the issue
directly involves public law. Aggrieved members must seek remedies through civil suits, arbitration, or
procedures defined in the society’s bylaws.

Last Seen Together Theory

The “Last Seen Together Theory” refers to the principle that when two people were last seen together and one of them is later found dead, the person who was last seen with the deceased may be presumed to have some connection with the crime.
It is not conclusive proof by itself, but it strengthens the prosecution’s case in the absence of direct evidence.

Example: If ‘A’ is last seen with ‘B’ in a secluded area, and shortly after, B’s body is discovered, the theory helps establish a link between A and B’s death.

Philosophical Basis

According to Bentham, witnesses are the eyes and ears of justice. However, in many cases, no direct eyewitness is present. In such situations, circumstantial evidence becomes crucial.
One such key circumstance is that the accused and the deceased were together just before the crime.

The theory applies strongly when the time gap between being last seen together and the discovery of death is small. A shorter gap reduces the possibility of any third-party intervention, thereby strengthening the presumption that the accused committed the offence.

Under what section can this fact be proved?

• Relevant under Section 5 of Bharatiya Sakshya Adhiniyam, 2023
  (Section 7 of Indian Evidence Act)
  → because it shows the accused had the opportunity to commit the offence.
• Also relevant under Section 4 of Bharatiya Sakshya Adhiniyam, 2023
  (Section 6 of Indian Evidence Act)
  → as it forms part of the same transaction.

Evidentiary Value

Being last seen together is not conclusive proof of guilt. It creates a strong but rebuttable presumption. Courts also consider:

• Relationship between accused and deceased
• Any enmity or prior hostility
• Recovery of weapon
• Conduct of accused (non-explanation, suspicious answers)
• Time gap between last seen and time of death

Time Proximity Matters

The closer the last seen evidence is to the time of death, the stronger the inference:

• Immediate proximity: strong presumption
• Long gap (hours/days): weakens presumption

Important Note:
Time refers to the time of injury/death, NOT the time of recovery of the dead body.

Role of Medical Evidence

• Wound healing patterns
• Infection or decomposition
• Body temperature (Algor Mortis)
• Rigor Mortis progression (2–48 hours)
• Stage of decomposition (forensic entomology)
• Stomach contents analysis (last meal estimation)

Location Relevance

• If last seen location is near the crime scene → stronger link
• If far / unrelated → weaker link

The last seen fact is usually proved by an eyewitness who must be a “natural witness,” i.e., someone who had a natural reason to be present at the location.

Connection With Section 109 BSA (Section 106 IEA)

Once prosecution proves the “last seen together” fact, the burden shifts to the accused (as per Section 106 IEA / Section 109 BSA) to explain facts within his exclusive knowledge, such as:

• They separated earlier
• Some third person intervened
• Accused was elsewhere (alibi)

However, the accused can discharge this burden by **preponderance of probability**, not strict proof.

Conclusion

The Last Seen Together Theory assists prosecution but is never sufficient alone to prove guilt. Court always requires corroboration like motive, recovery, conduct, forensic evidence, and medical proof of time of death.

Cyber Frauds With NRIs — Real-Life Examples & Prevention Strategies

Cyber fraud targeting Non-Resident Indians has increased significantly, exploiting the fact that NRIs live abroad and cannot oversee their financial or legal matters in India. As digital risks grow rapidly, NRIs face threats such as phishing, identity theft, and bank fraud, making cybersecurity essential.

Cybersecurity Challenges

NRIs are vulnerable due to:

• Distance from Indian banks and institutions
• Complex international transfers
• Different regulations across countries
• Frauds like phishing, ransomware, identity theft, unauthorized withdrawals

How Cyber Fraudsters Target NRIs

• Fake Government Calls/Emails — impersonating ED, IT Dept, DRI, etc.
• Threat & Urgency Tactics — threats of arrest, seizure, tax cases.
• Fake Official Documents — forged notices, summons.
• Pressure for Immediate Payment — crypto, gift cards, wire transfers.
• Follow-up Scams — once victim pays, they demand more.

Real Life Cyber Frauds Against NRIs

Case 1 — NRI Doctor (Mumbai), Duped of ₹9.7 lakh (2025)
A US-based surgeon received a fake withdrawal alert and transferred all money to another account out of fear. Cybercrime complaint was later filed.

Case 2 — Canada-Based Sisters Lose ₹19 Crore (2024)
Fraudsters impersonated govt officials, threatened arrest, and extorted ₹19 crore.

Case 3 — Vardhman Group Chairman Duped of ₹7 Crore (2024)
Scammers faked a Supreme Court video hearing, complete with fake CJI and warrants.

Case 4 — Canadian Citizen (Ludhiana) Loses ₹28 Lakh (2024)
Driver cloned SIM + accessed email → transferred funds illegally.

Case 5 — NRI in Canada Loses ₹46 Lakh (2024)
Funds drained despite no ATM/internet banking access.

Case 6 — Ex-NRI Loses ₹6 Crore (2024)
Duped into fake Zerodha-style trading apps.

Case 7 — UK NRI Loses ₹2.26 Crore (2024)
Scammers filed fake revised ITR, claimed refund, and siphoned funds.

Case 8 — Bank Official & 3 Others Steal ₹57 Lakh (2023)
HDFC employee leaked account info; money distributed across accounts.

Case 9 — NRI Loses ₹57 Lakh (2023)
Scammers got his old mobile number reassigned and accessed accounts.

Effective Prevention Strategies

• Verify Every Communication — Call govt departments using official numbers.
• Understand Govt Agency Behavior — They never demand instant payment.
• Protect Devices — Antivirus, firewall, OS updates, strong passwords, 2FA.
• Use Secure Networks — VPN on public Wi-Fi, avoid open networks.
• File Complaints Online — Cyber police portals in the victim’s state.
• Never Share Personal Info — Aadhaar, PAN, passwords, OTP.
• Beware of Phishing — Check sender authenticity before clicking.
• Monitor Accounts Regularly — Enable alerts and check activity reports.
• Use Secure Payment Gateways — Only HTTPS websites, avoid unknown links.
• Learn About Cybersecurity — Follow govt advisories, attend workshops.
• Prepare Incident Response — Backups, immediate action with banks, cyber unit.
• File Criminal Complaints Under BNSS Sections 223 & 175(3)
• Invest in Cybersecurity Services — Endpoint protection, threat monitoring.

Recent Supreme Court Judgment (Jan 2025)

In SBI v. Pallabh Bhowmick, the Supreme Court held that banks are liable if they fail to prevent reported frauds in time. This is a major relief for cyber-fraud victims.

Conclusion

NRIs must stay vigilant, verify all communications, secure their devices, avoid sharing sensitive info, and regularly monitor accounts. Cybersecurity is not optional—it is essential for protecting wealth, privacy, and long-term financial security in today’s digital world.

Actio Personalise Moritur Cum Persona — Explained with Judicial Precedents

The legal maxim “Actio Personalis Moritur Cum Persona” means that a personal right of action ceases with the person. Actions related to personal wrongs like assault, battery, or defamation generally do not survive the death of either party. For example, if A commits battery on B and either party dies, B’s personal right to sue A ends. However, if a third party suffers a legal injury due to the wrong, their action is not affected.

Meaning & Historical Origin

The maxim breaks down as:

• Actio – an action
• Personalis – personal
• Moritur – dies
• Persona – with the person

Originating in medieval Europe, its earliest use was in a 1496 defamation case where the action ended upon the defendant’s death. It later evolved in cases such as Cleymond v. Vincent (1523) and was later explained by jurists like Edward Coke.

Application of the Principle

The core idea: personal actions end with the death of the concerned party.
Yet, courts allow certain actions to survive:

• Defamation: Reputation protection actions may continue.
• Assault: Claims for injuries suffered before death may continue.
• Damages: Negligence or fraud-related financial loss actions survive.

Key Exceptions

• Survival of Actions: Property disputes, breach of contract and financial tort claims continue.
• Wrongful Death: Actions benefiting the estate or survivors continue.
• Labour Laws: Some statutes protect rights beyond death.
• Legal Representatives Suits Act, 1855: Allows recovery of financial loss to the estate.
• Fatal Accidents Act, 1855: Legal representative may claim compensation for wrongful death.
• Indian Succession Act, 1925 (Section 306): Executors/administrators can continue pending cases.

Important English Case Law

• Pinchon (1611): Contractual liabilities survive; personal obligations die.
• Hambly v. Trott (1776): Trespass to person dies; trespass involving property survives.
• Baker v. Bolton (1808): “In civil law, the death of a human being cannot give rise to a cause of action.”
• Phillips v. Homfray (1883): Pain and suffering claims do not survive death.

Application in India

Indian courts apply this maxim narrowly to ensure fairness. Personal tort actions that do not survive death are limited. If the cause relates to inheritable rights or impacts the estate, the action survives.

Key Indian Judicial Precedents

• Girja Nandini Devi v. Bijendra Narain (1966): Doctrine applies only to personal torts; not applicable where relief remains meaningful post-death.
• C.P. Kandaswamy v. Mariappa Stores (1974): Appeal abated after appellant’s death — right purely personal.
• G. Jayaprakash v. State of AP (1976): Claim fails unless estate benefited from tort-feasor’s action.
• K.P. Marimuthu v. Superintendent of Police (1985): Reinstatement cannot be sought after employee’s death.
• GSRTC v. Ramanbhai (1987): Accident compensation survives the death of injured person.
• M. Veerappa v. Evelyn Sequeira (1988): Maxim applies only to personal injuries, not proprietary rights.
• Nurani Jamal v. Srinivasa Rao (1996): Exception where estate benefited from wrongdoing.
• Vatsala Srinivasan (2016): Maxim not applicable to probate matters.
• Prabhakara Adiga v. Gowri (2017): Permanent injunction rights survive death.

Latest Judgment

Diocese of Delhi-CNI v. Deepak Martin (2024)
Court held that the father’s right to reside in church premises was purely personal, tied to his role as Resident Pastor. After his death, the suit abated since the right did not transfer to his son.

Red Chillies Entertainment Pvt. Ltd. v. Late Mustak Ahmed (2024)
Gujarat High Court reiterated: personal rights (defamation, privacy, injury) do not pass to legal heirs.

Conclusion

The doctrine holds that personal actions die with the person, but modern legal systems allow several exceptions—especially where property, contractual duties, or estate benefits are involved. Courts aim to ensure justice rather than rigidly applying the historical rule.

Right to Maternity Leave for Third Child — Supreme Court Upholds Dignity of Motherhood

Introduction

Under Section 5 of the Maternity Benefit Act, 1961, women are entitled to 26 weeks of paid maternity leave for the first two children and 12 weeks for subsequent children. The Supreme Court in K. Umadevi vs. State of Tamil Nadu examined whether a woman with two children from a previous marriage could claim maternity leave for a child from her second marriage after joining government service.

Facts

Umadevi had two children from her first marriage (2007, 2011) and joined government service in 2012. After divorce and remarriage, she sought maternity leave in 2021 for her new pregnancy.
The Tamil Nadu Government denied leave, stating she already had two living children.

The Single Judge allowed maternity leave, stating State Rules conflicted with the Maternity Benefit Act (Central Law).
Division Bench reversed this, saying govt employees are governed by service rules, not the Act.

Arguments

• Employee: This is her first child after joining service; earlier children are not in her custody.
• Government: Allowing this creates fiscal burden and violates the “two-child norm”.

Supreme Court Observations

The Court held:

• The Maternity Benefit Act does not limit the number of children.
• Only the duration reduces from 26 to 12 weeks after two children.
• Section 27 gives the Act overriding effect over conflicting laws.
• Reproductive rights are part of Article 21 (citing Suchita Srivastava, Devika Biswas, X v. Principal Secy., etc.)
• Maternity leave protects both mother and child.

Since Umadevi’s two earlier children were from a marriage prior to government service and not in her custody, her first child after joining service entitles her to maternity leave.

Final Ruling

The Supreme Court set aside the Division Bench ruling and restored her entitlement under FR 101(a).
The Court ordered the State to grant maternity benefits within two months.

Implications

• Maternity leave is a constitutional right, not just statutory.
• Child-count cannot be used to deny benefits.
• Policies must align with women’s reproductive rights.
• Both public and private employers must revise their policies.

This judgment strengthens workplace equality, dignity of motherhood, and India’s commitment to protecting women’s reproductive and employment rights.