Does Rejection Of Bail Bar Subsequent Challenge To Legality Of Arrest? Allahabad High Court Answers

Distinguishing the Supreme Court's 2025 judgment in State of Madhya Pradesh v. Kusum Sahu [2025 LiveLaw (SC) 1110], the Allahabad High Court last week held that rejection of a regular bail application does not, by itself, bar a subsequent challenge to the legality of an arrest and judicial remand under Article 22(1) of the Constitution of India.

A Bench of Justice JJ Munir and Justice Tarun Saxena clarified that the principle laid down in Kusum Sahu would not apply where the Court is concerned solely with the legality of the arrest and remand order, and not with the merits of the prosecution or the defence.

"If the arrest and the remand order are illegal applying the principles in Pankaj Bansal, Prabir Purkayastha and Vihaan Kumar dehors a reference to the merits of the prosecution or the defence, the principle in Kusum Sahu, to our understanding, would not be attracted", the bench clarified.

With this, finding that the petitioner in the present case had never been informed of the grounds of his arrest, the Bench quashed the remand order and directed his release. While doing so, the bench reiterated that non-compliance with Article 22(1) renders the arrest illegal and vitiates subsequent remand orders.

In its 19-page order, the Court also made strong observations regarding repeated violations of Article 22(1) by the police and the need for Magistrates to strictly enforce constitutional safeguards at the remand stage.

Case in Brief

The Bench was dealing with a criminal writ petition filed by Rakesh, who challenged the legality of his arrest in a case registered under Sections 87, 127(4), 64(1) and 143(2) of the Bharatiya Nyaya Sanhita.

At the outset, the Court clarified that the petition had nothing to do with the merits of the prosecution case or the petitioner's entitlement to bail.

Instead, the only question before the bench was whether the arrest satisfied the mandate of Article 22(1) of the Constitution, read with the relevant provisions of the Bharatiya Nagarik Suraksha Sanhita (BNSS).

The Bench observed that if an arrest is illegal at its inception because the fundamental right guaranteed under Article 22(1) has been violated, the accused is entitled to restoration of liberty "no matter what the charge is or the gravity thereof".

Opposing the writ petition, the State argued that since the petitioner's regular bail application had already been rejected by the Sessions Judge, he could not now turn around and contend that his arrest was illegal.

The State argued that this would allow the petitioner to secure indirectly what he had failed to obtain on merits. He referred to the Supreme Court's decision in Kusum Sahu.

However, rejecting the submission, the High Court observed that although the principle in Kusum Sahu "appears to be that way", the illegality considered by the Supreme Court in that case arose in "an entirely different context".

The Bench noted that in Kusum Sahu, the accused had filed 4 successive bail applications before the High Court within a span of 4 months, all of which were rejected. Thereafter, a habeas corpus petition was filed which was allowed on the ground of illegal arrest. While granting that relief, the High Court had examined the merits of the criminal case.

Due to which, the Supreme Court had to remark that the HC, while considering the habeas corpus plea directed release of the accused “examining the case on merits as if the Court was hearing appeal against the order rejecting the bail application”.

The present case before the Allahabad HC, the Bench said, stood on a completely different footing.

For one, the Court noted, the petitioner had never approached the High Court by way of a bail application, much less suffered rejection of such a plea. More importantly, the Court emphasised that it was not examining the merits of the prosecution or the defence at all.

"What we have examined is the legality of the arrest and the remand order, pursuant to which the petitioner is in judicial custody. If the arrest and the remand order are illegal applying the principles in Pankaj Bansal, Prabir Purkayastha and Vihaan Kumar dehors a reference to the merits of the prosecution or the defence, the principle in Kusum Sahu, to our understanding, would not be attracted", the Bench remarked.

Accordingly, it rejected the State's objection founded on Kusum Sahu.

In the present case, the petitioner had contended that although he was arrested on April 20, 2025, he was never informed of the grounds of his arrest, either orally or in writing. The State relied on the arrest memo and a General Diary entry to contend that the constitutional requirement had been satisfied.

Rejecting the State's stand, the High Court held that neither document disclosed the factual grounds of arrest. The arrest memo merely recorded generic "reasons for arrest" and not the "grounds of arrest", a distinction consistently recognised by the Supreme Court in Pankaj Bansal vs. Union of India, Prabir Purkayastha vs. State (NCT of Delhi), Vihaan Kumar vs. State of Haryana and Mihir Rajesh Shah v. State of Maharashtra.

The Court also found that the General Diary entry merely recorded the penal provisions invoked and stated that Supreme Court guidelines had been complied with, without disclosing the factual basis of the arrest.

Holding that the petitioner had consequently been disabled from effectively exercising his right under Article 22(1), the Bench also criticised the Remand Magistrate for mechanically authorising judicial custody without first verifying compliance with the constitutional safeguard.

Terming it "a classical case of a remand order made by the Judicial Magistrate, being rendered illegal due to the failure to ensure compliance with the requirements of Article 22(1) of the Constitution", the Court quashed the remand order.

Allowing the writ petition, the Court directed that the petitioner be released upon furnishing bonds under Section 91 of the BNSS.

It clarified that the order would not affect the ongoing investigation or trial and further directed the Sessions Judge, Sambhal, to ensure that Magistrates under his administrative control do not authorise police or judicial remand mechanically on printed proformas without first satisfying themselves that the constitutional requirement of communicating the grounds of arrest has been complied with.

Advocates Dileep Kumar Shukla and Shikhar Neelkanth appeared for the petitioner

Case title - Rakesh vs State of U.P. and others 2026 LiveLaw (AB) 526

Case Citation: 2026 LiveLaw (AB) 526

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