The Supreme Court's 2024 rulings in Prabir Purkayastha v. Union of India and Pankaj Bansal v. Union of India have left no room for ambiguity that the communication of grounds of arrest or detention is not a procedural nicety but a constitutional necessity. The Court emphatically held that an arrest without such communication is illegal in the eyes of law.
Building on this, the Supreme Court in Vihaan Kumar v. State of Haryana (2025) went a step further, reminding magistrates of their duty to ensure that an accused has been made aware of the grounds of arrest when produced before them. These judgments reaffirm the constitutional promise under Article 22(1) and the legislative command under Section 47 of the Bharatiya Nagarik Suraksha Sanhita (BNSS) that liberty cannot be curtailed without transparency and due process.
Yet, an important question continued to linger that if an arrest is found to be illegal for want of communication of grounds, can the investigating agency simply “cure” the defect and re-arrest the person? The Supreme Court had not directly addressed this issue, leaving High Courts to navigate the terrain independently and divergently.
The Kerala High Court in Babu M v. State of Kerala (2025) directed the release of the accused for violation of Article 22(1) but added a telling caveat: the order would not preclude a lawful re-arrest. The Delhi High Court in Anwar Khan @ Chacha v. State of NCT of Delhi (2025) took a similar view holding that since there is no legal or judicial bar on re-arrest, the police may do so after rectifying procedural irregularities.
The Bombay High Court in Vicky Bharat Kalyani v. State of Maharashtra (2025) examined in detail the implications of Section 50 of the CrPC on this question and after finding the matter to be of far-reaching consequence, referred it to a larger bench.
While the reasoning of the Kerala and Delhi High Courts may appear pragmatic, it is, with respect, deeply problematic. To allow the police to re-arrest after their own unlawful action would be to reward official negligence and penalise the citizen. A second arrest, made merely after fixing a procedural lapse, would enable the investigating agency to reset the remand clock, granting it a fresh period of custody for its own default. That strikes at the very heart of Article 21 and the rule of law and such an approach cannot be countenanced in law.
The Supreme Court has recently addressed this issue in its latest judgment titled Mihir Rajesh Shah v. State of Maharashtra & Anr. pronounced on 06.11.2025. In para 55 thereof, the Supreme Court has held as under:
“It goes without saying that if the abovesaid schedule for supplying the grounds of arrest in writing is not adhered to, the arrest will be rendered illegal entitling the release of the arrestee. On such release, an application for remand or custody, if required, will be moved along with the reasons and necessity for the same, after the supply of the grounds of arrest in writing setting forth the explanation for non-supply thereof within the above stipulated schedule. On receipt of such an application, the magistrate shall decide the same expeditiously and preferably within a week of submission thereof by adhering to the principles of natural justice.”
The Supreme Court has thus settled this issue negating the power of the police to re-arrest without seeking permission of the magistrate. But the Court has not enumerated the factors wherein the said permission may be granted. The right approach, therefore, must be to permit re-arrest only if the accused had been released during the subsistence of the maximum remand period. Once that period has expired, the justification for permitting a fresh arrest evaporates. However, if any portion of the remand period remains, re-arrest may be permitted, but the nature of custody, police or judicial, must be governed strictly by Section 187 of the BNSS.
This balanced formula serves both ends: it safeguards the individual's liberty while preserving the police's legitimate right to investigate. Anything beyond that would open the door to misuse and make the constitutional safeguards against arbitrary arrest hollow in practice.
In matters touching personal liberty, there can be no second chances for the State. Procedural compliance is not a formality; it is the very essence of the rule of law.
The author is a Senior Advocate.
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