Mihir Rajesh Shah : Did Supreme Court Create Two Classes Of Arrestees?

The mandatory requirement of communicating written grounds of arrest to detenues under various preventive detention laws is well established. However, there existed no statutory or constitutional requirement to communicate written grounds of arrest to arrestees, accused of committing offences under different penal statutes of the land that are different from preventive detention laws. Even though provisions like Article 22(1) of the Constitution of India, Section 50 of Cr.P.C (Section 47 of BNSS) and provisions in special statutes did prescribe for the right of the arrestee to be informed of the grounds of arrest but none of these provisions provided for the manner of informing. So, the question remained that whether the investigating agency is required to communicate written grounds of arrest to an arrestee like in preventive detention cases because in either case, the liberty of an individual is being curtailed. The issue came up before the Supreme Court for the first time in Pankaj Bansal Vs UoI^[2]. This was a case where the accused had challenged their remand to custody for commission of offences under Prevention of Money Laundering Act, 2002 ('PMLA Act' hereinafter) on the ground that grounds of arrest were not communicated to them prior to their remand and hence, their arrest and remand are illegal. Section 19 of the PMLA Act provides that where an authorised officer has reason to believe that any person has been guilty of an offence under the said act, he may arrest such person and inform him of the grounds of arrest as soon as may be. The Supreme Court held that there is no valid reason as to why written grounds of arrest should not be provided to the arrestee as a matter of course and without exception. The Supreme Court premised its conclusion on two reasons and the universality of these two reasons laid the groundwork for later benches of Supreme Court to expand the jurisprudence of informing written grounds of arrest to every case of arrest irrespective of the offences for which an individual is arrested. The first reason was based on convenience and practicability. The Apex Court held that serving written grounds of arrest would help in avoiding a situation where accused claims non-compliance of procedure and authorised officer claims compliance of procedure and there is no way to prove it. The second reason was premised on the constitutional objective of giving the arrested person a fair opportunity to legal counsel, effectively oppose application for his remand and seek bail. However, the application of this judgment was made prospective in nature by use of the word 'henceforth' in paragraph 35 of the judgment.

Even though the Pankaj Bansal Judgment (Supra) could have been interpreted to have universal application in case of arrest for any offences under any penal statutes but in the absence of any such express declaration in the judgment, the directions made therein were considered to be made only in the context of PMLA Act, 2002. Then came the judgment of Supreme Court in Prabir Purkayastha Vs NCT of Delhi^[3]. This judgment is a hallmark of judicial creativity. In this case, the accused challenged his arrest and remand for offences under Unlawful Activities (Prevention) Act, 1967 ('UAPA' hereinafter) and Indian Penal Code. During the arguments, the accused placed reliance on the ratio laid down in Pankaj Bansal (supra) and it was countered by the state on two main grounds. First, Pankaj Bansal judgment was in the context of PMLA Act, 2002 and it is not applicable in a case involving offences under UAPA. Second, the Pankaj Bansal judgment has prospective application and the accused is remanded (04.10.2023) prior to that. In dealing with the first ground, the Supreme Court exhibited exceptional ingenuity. The Court objectively examined Section 43B(1) of UAPA which is akin to Section 19 of PMLA, 2002 and found it to be same in verbatim. The Court could have stopped here and ruled that the directions in Pankaj Bansal are also applicable in case of offences under UAPA but the Court went further and held that, 'any person arrested for allegation of commission of offences under the provisions of UAPA or for that matter any other offence(s) has a fundamental and a statutory right to be informed about the grounds of arrest in writing and a copy of such written grounds of arrest have to be furnished to the arrested person as a matter of course and without exception at the earliest'^[4]. Then at paragraph 46 of the judgment, the Court opined in emphatic terms that, 'once this Court has interpreted the provisions of the statute in context to the constitutional scheme and has laid down that the grounds of arrest have to be conveyed to the accused in writing expeditiously, the said ratio becomes the law of the land binding on all the Courts in the country by virtue of Article 141 of the Constitution of India'^[5]. This paragraph exemplified the supremacy of the Constitution. The Supreme Court drew strength from and took aid of Articles 21, 22(1) and 22(5) of the Constitution of India to hold that an arrest is an arrest, irrespective of the offences and in doing so, it effectively neutralised any arguments basing upon a particular statute (say, PMLA, UAPA, IPC etc.). Thus, the requirement of providing written grounds of arrest to the arrestee was expressly made universal. In dealing with the second ground, the Supreme Court held that, the accused in this case was remanded on 04.10.2023 and the judgment in Pankaj Bansal was delivered on 03.10.2023 and merely because the judgment was uploaded at a later date, the benefit of judgment cannot be denied to the accused in the said case. Thus, in Prabir Purkayastha, Supreme Court not only followed its judgment in Pankaj Bansal but also affirmed its application from 03.10.2023 onwards.

Despite being a remarkable judgment, ratio laid down in Prabir Purkayastha did not trickle down the judicial hierarchy the way it should have, possibly because it didn't have a direction for circulation of a copy of the judgment^[6] like those made in Arnesh Kumar Vs State of Bihar^[7] and later in Mihir Rajesh Shah^[8]. In Mihir Rajesh Shah (supra) also, arrest and remand of the accused was challenged on the ground that grounds of arrest were not communicated to the accused. The offences involved were under Bharatiya Nyaya Sanhita, 2023 ('BNS' hereinafter). The Supreme Court referred to its earlier judgments in Pankaj Bansal (supra), Prabir Purkayastha (supra) and several other judgments and laid down the principles to be followed by the arresting authorities upon arrest of the arrestee. All of those principles, except one, were already laid down in Prabir Purkayastha. The only new addition was the mandate of communicating grounds of arrest at least 2 hours prior to production of the arrestee for remand. In fine, Mihir Rajesh Shah reiterated the principles already laid down in Prabir Purkayastha in more refined terms and added a time-frame for compliance of the same. It was all well and good till this point but then the Court went further to direct that the principles laid down in the judgment shall govern arrests henceforth. This direction not only disturbs judicial propriety but is also unconstitutional as it has the effect discriminating arrestees between 03.10.2023 to 05.11.2025 and arrestees from 06.11.2025 onwards.

It is pertinent here to understand the dates of arrest/remand of the accused and dates of judgments in the abovementioned three cases to understand the apparent error in the 'henceforth' application of Mihir Rajesh Shah judgment. The judgment in Pankaj Bansal case was delivered on 03.10.2023 and the application of the judgment was made prospective by directing that henceforth a copy of written grounds of arrest is to be furnished to the arrestee as a matter of course and without exception. In Prabir Purkayastha case, the accused was arrested on 04.10.2023 and the judgment was delivered on 15.05.2024. Objection was made to the application of Pankaj Bansal case in the said case. However, the Court clarified that merely because judgment was uploaded at a later date, benefit of said judgment cannot be denied to the accused. Accordingly, since the accused was arrested on 04.10.2023 i.e; a day after the judgment in Pankaj Bansal case, he was extended the benefit of Pankaj Bansal judgment. Also, since, Prabir Purkayastha held that grounds of arrest have to be communicated to an arrestee irrespective of the offences he is accused of, it effectively meant that every arrestee, irrespective of the offences he is accused of, has to be communicated with written grounds of arrest in case of every arrest from 03.10.2023 onwards. The law was clear, unambiguous and needed no tinkering but then the Supreme Court did the unwanted in Mihir Rajesh Shah by directing that the principles laid down in the said judgment shall govern the arrests henceforth. It was unnecessary, especially, when a coordinate bench (in Pankaj Bansal) had already directed the prospective application of the requirement to provide written grounds of arrest in case of every arrest from the date of judgment in that case. Moreover, by directing henceforth application in Mihir Rajesh Shah, the Supreme Court effectively nullified the precedential value of judgments in Pankaj Bansal and Prabir Purkayastha. In fact, this has been exploited by different high courts^[9] of the country to deny relief to those arrestees who are arrested between 03.10.2023 to 05.11.2025 on the ground that Mihir Rajesh Shah judgment is prospective in nature as if the judgments in Pankaj Bansal and Prabir Purkayastha do not have any binding value on them.

Otherwise also, if it is understood that the judgments in Pankaj Bansal and Prabir Purkayastha have precedential value but only in the context of the offences that were involved in the said cases then also it will amount to discriminatory treatment of arrestees under PMLA, UAPA and rest other offences because on the ground of non-supply of written grounds of arrest, arrestees under PMLA will be released from 03.10.2023 onwards, arrestees under UAPA will be released from 15.05.2024 onwards and arrestees under other offences will be released from 06.11.2025 onwards. This will be an arbitrary classification and will be in the teeth of Article 14 of the Constitution of India.

Article 14 embodies the twin tests of equality, i.e. 'intelligible differentia' and 'reasonable nexus'. Any distinction or classification introduced by a law must satisfy the twin tests to pass the muster of constitutionality. The twin test ensures that the classification is not arbitrary and that it is based on intelligible differentia and it has reasonable nexus with the objective sought to be achieved. The classification discussed in the above paragraph will be found wanting in the twin tests as the classification will neither be based on any 'intelligible differentia' nor will it have any 'reasonable nexus' with the objective, if any, sought to be achieved.

The 'henceforth' application of Mihir Rajesh Shah judgment by different high courts of the country is nothing sort of appalling. High Courts readily rely on 'henceforth' direction in the judgment to deny release of the arrestees, arrested before 06.11.2025 but after 03.10.2023, on the ground of non-supply of written grounds of arrest. Orissa High Court, while dealing with an argument in a bail application^[10] for release of the arrestee on the ground of not furnishing grounds of arrest, held that the decision in Mihir Rajesh Shah was delivered on 06.11.2025 but the arrestee was arrested on 31.10.2024 and therefore, the contention of the arrestee therein is unmerited. Another disturbing observation of the High Court in this case was that mere information of alleged offending section without anything more, was held to be sufficient communication of grounds of arrest. This is contrary to what has been explained by the Supreme Court in Prabir Purkayastha to constitute as grounds of arrest. The Supreme Court has explained 'grounds of arrest' to be thus at paragraph 49 of the judgment-

“……….. the 'grounds of arrest' would be required to contain all such details in hand of the Investigating Officer which necessitated the arrest of the accused. Simultaneously, the grounds of arrest informed in writing must convey to the arrested accused all basic facts on which he was being arrested so as to provide him an opportunity of defending himself against custodial remand and to seek bail. Thus, the 'grounds of arrest' would invariably be personal to the accused and cannot be equated with the 'reasons of arrest' which are general in nature.”

Thus, it is clear that communication of grounds of arrest is not an empty formality and hence, the communication has to contain all such details that would enable the arrestee to oppose his custodial remand. Kerala High Court, while hearing a bail application^[11], took note of the judgments in Pankaj Bansal, Prabir Purkayastha, Vihaan Kumar^[12] and factually found that the arrest intimation given to the mother of the arrestee was not sufficient yet the high court went on to hold that since judgment in Mihir Rajesh Shah has prospective application and the arrest in the said case was made before 06.11.2025, failure to provide written grounds of arrest to the relative of arrestee would not entitle the arrestee to be released on bail. Delhi High Court, while adjudicating a writ petition^[13] wherein prayer was to declare the arrest as illegal for being in violation of Articles 21, 22(1) and 14 of the Constitution of India, examined in detail the law laid down in Pankaj Bansal, Prabir Purkayastha, Vihaan Kumar and Mihir Rajesh Shah yet refused to release the arrestee therein because the plea of illegal arrest was raised at a belated stage and throughout the arrestee was represented by his counsel at every stage. Therefore, the High Court presumed that the arrestee had sufficient knowledge about the reasons for his arrest. In support of this reasoning, the High Court relied on the decision of the Supreme Court in State of Karnataka Vs Shri Darshan^[14]. The High Court also held that since the arrestee therein was arrested much earlier i.e. on 07.02.2024 to date of judgment in Mihir Rajesh i.e. on 06.11.2025, he cannot be permitted raise any grievance regarding non-furnishing of written grounds of arrest. Similarly, Bombay High Court^[15], dealing with a writ petition^[16] for declaring the arrest of the petitioner to be illegal, also relied on Sri Darshan (supra) judgment and the fact that the petitioner was arrested on 12.11.2024 i.e. prior to the judgment in Mihir Rajesh Shah to deny the release of the petitioner on the ground of non-supply of written grounds of arrest to the petitioner therein. Himachal Pradesh High Court, dismissed a batch of 29 petitions^[17] vide common order dated 18.11.2025, solely on the ground that arrests in all those cases were made prior to the date of Mihir Rajesh Shah judgment.

The common thread that runs through all the above orders and judgments of different high courts is that, none of the high courts even expressed any doubts as to the henceforth application of Mihir Rajesh Shah judgment, especially when there were already two judgments of co-ordinate benches of the Supreme Court that had affirmed the requirement of supplying written grounds of arrest from a date^[18] that was much prior to Mihir Rajesh Shah judgment. High Courts are constitutional courts. While they are bound by the judgments of the Supreme Court, they are equally responsible for upholding the Constitution of India. Arrestees arrested and remanded during the period from 03.10.2023 to 06.11.2025 without communication of written grounds of arrest are equally entitled to release as much as arrestees arrested after 06.11.2025. They too should be extended the benefit of the ratio laid down in Pankaj Bansal, Prabir Purkayastha and Vihaan Kumar. Denial of the same is plainly arbitrary and amounts to differentiating between two sets of arrestees without any rationale behind it. This falls foul of the Article 14 of the Constitution of India. The Supreme Court has not given any sound reasoning in Mihir Rajesh Shah for requiring to furnish written grounds of arrest from the date of judgment in the said case. Though Supreme Court notes in the said judgment that there existed no consistent or binding requirement mandating written communication of the grounds of arrest for all the offences but in my humble view, the Supreme Court is incorrect in saying so. The judgment in Prabir Purkayastha had already interpreted the provisions of Constitution, statutory enactments, applicability of Pankaj Bansal to hold that written grounds of arrest have to be mandatorily communicated to the arrestee at the earliest. Therefore, it would have been prudent for the Supreme Court to make the applicability of the principles of supplying written grounds of arrest from the date of judgment in Pankaj Bansal. That way, precedential value of the judgments prior to Mihir Rajesh Shah would have been saved and question of discriminatory treatment between two classes of arrestees would not have arisen.

The Judgments of Delhi High Court and Bombay High Court (supra) throws another contentious and alarming issue to the fore i.e. inconsistency in the ratio of the decision rendered by co-ordinate benches of the Supreme Court. While judgments in Pankaj Bansal, Prabir Purkayastha and Vihaan Kumar emphatically establish that right to be informed about grounds of arrest flows from Article 21 and 22(1) of the Constitution of India and infringement of the said right will render the initial arrest and remand illegal irrespective of subsequent developments in the investigation, there is also the judgment of Sri Darshan (Supra) which has the potential of virtually negating the ratio of the above three judgments and this can be seen in the judgments of Delhi High Court and Bombay High Court.

Hopefully, Supreme Court will rectify the error and correct the course in the future in an appropriate case. In fact, while the high courts are taking a pedantic view of the 'henceforth' direction in Mihir Rajesh Shah judgment, the Supreme Court seems to have already understood the error in the said direction. A case in point is the order of the Supreme Court dated 01.04.2026 in Rajinder Rajan Vs Union of India & Anr.^[19]. In this case appellants were arrested on 03.05.2025 for commission of offences under NDPS Act which was much before the Mihir Rajesh shah judgment on 06.11.2025. Their bail applications were rejected. However, the Supreme Court allowed their appeals and released the appellants on bail. Though this order does not expressly discuss the 'henceforth' direction but nonetheless it is a move to right the wrong.

1. 2025 INSC 1288 ↑

2. 2023 INSC 866 ↑

3. 2024 INSC 414 ↑

4. Ibid, Para 20 ↑

5. Ibid, Para 46 ↑

6. At Paragraph 13, it was directed that, 'We direct that a copy of this judgment be forwarded to the Chief Secretaries as also the Director Generals of Police of all the state Governments and the Union Territories and the Registrar General of all the High Courts for onward transmission and ensuring its compliance. ↑

7. 2014 INSC 463 ↑

8. At Paragraph 65, it was directed that, 'We direct the Registry to send one copy of this judgment to all the Registrar Generals of the High Courts and the Chief Secretaries of all the States and Union Territories.' ↑

9. Further analysis has been provided infra ↑

10. Lacha Madi Vs State of Odisha [BLAPL No. 1447 of 2026] ↑

11. Muneer Vs State of Kerala [BAIL APPL. No. 407 of 2026] ↑

12. 2025 INSC 162 ↑

13. W.P.(CRL) 4203/2025 ↑

14. 2025 INSC 979 ↑

15. High Court of Bombay at Goa ↑

16. CRIMINAL WRIT PETITION NO.683/2025 (F) ↑

17. CWP No. 12201 of 2025 a/w CWP Nos. 9502, 9862, 9866, 10799, 10800, 10802, 10832, 10837, 11178, 11209, 11269 to 11273, 11357, 11360, 11667, 11721, 11724, 12178, 12181, 12184, 12247, 12434, 13474, 13277 and 14007 of 2025 ↑

18. 03.10.2023 i.e. the date on which Pankaj Bansal judgment was delivered ↑

19. SLP(Crl.) No(s). 3326-3327 of 2026 ↑