THE SUPREME COURT has ruled that once an arrest of an accused is quashed for want of non-supply of grounds of arrest, the accused could only be re-arrested with the permission of the magistrate.
A Bench of Justices Ujjal Bhuyan and Atul S. Chandurkar handed down the ruling on a petition challenging the order of the Punjab and Haryana High Court dismissing the petition filed by the appellant by holding that the investigating agency cannot be prohibited from seeking warrants of arrest against the appellant or from re-arresting him or seeking his custody.
The Bench observed that once there is a breach of Article 22(1) of the Constitution, the power to re-arrest the accused must not be left to the discretion of the very same authority who had violated the said provision of the Constitution.
“It must have the judicial imprimatur. It is only when the Magistrate is satisfied that for bona fide reasons the grounds of arrest could not be furnished to the arrestee at the first instance but furnished subsequent to his release and on further satisfaction that the accused needs to be re-arrested, he may pass an order permitting the investigating agency to rearrest”, the Bench ruled.
In this case, an FIR was registered by an informant against the appellant on May 13, 2026, before the Mataur Police Station in the district of SAS Nagar (Punjab), alleging that his wife had left his company and started living with the accused-appellant from about October-November 2024, taking with her both his daughters, including the alleged victim girl, being his elder daughter.
On May 9, 2026, the elder daughter (‘alleged victim’) came back to the company of the informant. It was stated that she narrated to the informant physical and sexual abuse committed on her by the accused-appellant from October 25-26, 2024 onwards, off and on.
The FIR was registered under Sections 64, 65(1) and 351 of the Bharatiya Nyaya Sanhita, 2023 (‘BNS’) read with Section 6 of the Protection of Children from Sexual Offences Act, 2012, as amended (‘POCSO Act’).
The Magistrate’s Findings
On May 17, 2026, at around 07:54 a.m., the appellant was arrested by the police, whereafter he was produced before the Judicial Magistrate In-Charge (Duty) on the next day, i.e., on May 18, 2026, at around noon for obtaining police remand for one day. The Judicial Magistrate noted that though the appellant was arrested on May 17, 2026, and produced before her on May 18, 2026, no written grounds of arrest were provided to the appellant.
After referring to the judgment of the Supreme Court in Mihir Rajesh Shah vs. State of Maharashtra (2025), the Magistrate held that the investigating agency had miserably failed to comply with the mandate of law of providing written grounds of arrest. Therefore, appropriate action should be taken against the officers at fault.
For non-furnishing of written grounds of arrest, which was in violation of Article 22(1) of the Constitution read with Section 50(1) of the Code of Criminal Procedure, 1973 (‘Cr.P.C.’) and Section 47 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (‘BNSS’), the appellant was directed to be released immediately since his arrest was rendered illegal. However, the Magistrate clarified that if the investigating agency finds it necessary, they can move an application for remand or custody, if required, along with the reasons and the necessity for the same after supplying the grounds of arrest in writing to the appellant, setting forth the explanation for non-supply of grounds.
The Magistrate further clarified that her order would not preclude the investigating agency from proceeding in accordance with law and in strict compliance with the statutory and constitutional mandate.
On the same day itself, i.e., May 18, 2026, the same Station House Officer Rupinder Singh, who had caused the arrest of the appellant without furnishing the grounds of arrest and who had moved the earlier remand application, again moved a fresh application for custody and remand of the accused-appellant.
This time the subsequent custody/remand application was assigned to the Additional Chief Judicial Magistrate, who passed an order dated May 22, 2026, dismissing the said application as being not maintainable at that stage. The Additional Chief Judicial Magistrate noted that the said application was moved by the prosecution without supplying the grounds of arrest to the accused and before the arrest of the accused.
Referring to the decision of the Supreme Court in Mihir Rajesh Shah, the Magistrate observed that such an application could be moved only after supplying the grounds of arrest to the accused. According to him, in the present case, grounds of arrest have not been provided to the accused till then. Moreover, custody and remand of the accused can only be granted by the court after the arrest of the accused and it cannot be granted in the absence of the accused.
The Bench said in such cases the investigating agency has to file an application before the concerned Magistrate for custody, mentioning therein the reasons for re-arrest of the accused and the necessity for the same.
The High Court’s Order
The accused-appellant approached the High Court seeking to:
(i) quash the observations made in the order dated May 18, 2026, by the learned Magistrate;
(ii) prohibit and restrain the investigating agency from re-arresting the appellant under any circumstances;
(iii) prohibit and restrain the respondents from seeking custody of the appellant and his remand; and
(iv) prohibit and restrain the respondents from seeking a warrant of arrest of the appellant.
The High Court dismissed the petition, observing that even though the arrest of the appellant was declared illegal by the Magistrate for non-furnishing of written grounds of arrest, the investigating agency was not precluded from seeking his re-arrest, provided that the subsequent arrest made is strictly in accordance with the procedure established by law.
The High Court further observed that for the illegal detention beyond 24 hours before production before the learned Magistrate, the appellant may take appropriate legal action against the defaulting police officials. However, the appellant, who is accused of serious and grave offences against a minor child, cannot claim blanket immunity from future arrest. The investigating agency cannot be prohibited or restrained from seeking a warrant of arrest of the appellant or from re-arresting him or seeking his custody/remand.
The Framework of Article 22(1)
Article 22(1) of the Constitution mandates that “No person who is arrested shall be detained in custody without being informed, as soon as may be, of the grounds for such arrest nor shall he be denied the right to consult, and to be defended by, a legal practitioner of his choice.”
Its sub-clause (2) states that “Every person who is arrested and detained in custody shall be produced before the nearest magistrate within a period of twenty-four hours of such arrest excluding the time necessary for the journey from the place of arrest to the court of the magistrate and no such person shall be detained in custody beyond the said period without the authority of a magistrate.”
The constitutional mandate of Article 22(1) has been provided for as a statutory protection to an arrestee under Section 50 of Cr.P.C. Section 50 Cr.P.C. reads thus:
“50 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.”
Section 50 Cr.P.C. is reproduced in BNSS in the form of Section 47.
The protection of clause (2) of Article 22 finds manifestation in Section 57 Cr.P.C., which reads:
“57. Person arrested not to be detained more than twenty-four hours. - No police officer shall detain in custody a person arrested without warrant for a longer period than under all the circumstances of the case is reasonable, and such period shall not, in the absence of a special order of a Magistrate under section 167, exceed twenty-four hours exclusive of the time necessary for the journey from the place of arrest to the Magistrate’s Court.”
Section 58 BNSS is the present provision corresponding to Section 57 Cr.P.C., providing for the same time frame of twenty-four hours.
The Supreme Court’s Ruling
The Bench observed that it could not tinker with the most important safeguards provided under Article 22, adding that even subsequent filing of a chargesheet and an order of cognizance will not validate such an arrest.
“Article 22(1) applies across the spectrum including offences under the IPC or under special enactments. It is not statute specific. It is not a mere formality or a matter of procedure. It is a mandatory binding constitutional safeguard”, the Bench ruled.
The Bench noted that safeguards adumbrated in Article 22(1) are not mere procedural safeguards; these are fundamental principles which are required to be followed in the event liberty of a person is sought to be curtailed.
“Therefore, it is not correct at all to say that procedural lapses in furnishing grounds of arrest do not ipso facto render custody illegal or entitles the accused to bail. When an accused is released for violation of his fundamental rights under Article 22 (1), he is not enlarged on bail”, the Bench added.
But what if the investigating agency is of the opinion that custodial interrogation of the accused is required, and whether the accused could be re-arrested?
The Bench said in such cases the investigating agency has to file an application before the concerned Magistrate for custody, mentioning therein the reasons for re-arrest of the accused and the necessity for the same. The application, the Bench said, should also contain the explanation for non-supply of the grounds of arrest to the accused at the first instance.
The Bench further held that such an application can only be moved after furnishing the grounds of arrest to the accused.
“To rule out any foul play or collusion, such an application must have the endorsement of the immediate superior authority. This is because the immediate superior authority should know that the concerned officer has committed an unbecoming act of violating a constitutional provision for which necessary remedial”, the Bench said.
The Bench also held that the superior authority, when presented with the application seeking his endorsement for custody of the accused who has been released for violation of Article 22(1), should hand over the investigation of the case to another officer, further directing a departmental enquiry for such a serious lapse.
“If the enquiry culminates in an adverse finding against the erring police officer(s), it would entail departmental action with an entry in the service book of such officer(s)”, the Bench said.
On the facts of the case, the Bench set aside the High Court order.
The Bench held that the gravity of the evil to the community resulting from anti-social activities can never furnish an adequate reason for invading the personal liberty of a citizen except in accordance with the procedure established by the Constitution and the laws.
“When a certain procedure is prescribed by the Constitution or the laws for depriving a citizen of his personal liberty, it is the duty of the court to ensure that such procedure is rigorously observed, howsoever, strange this might sound to some ears”, the Bench underscored.