Mihir Rajesh Shah Judgment On Written Grounds Of Arrest Not Merely Prospective; Right Under Article 22(1) Pre-Existing: Orissa High Court
The Orissa High Court has ruled that the prospective nature of the Supreme Court's Mihir Rajesh Shah v. State of Maharashtra, 2025 LiveLaw (SC) 1066 ruling does not absolve the police/arresting authority of its duty to provide written grounds of arrest to the arrestee, since the right to be informed of the grounds of arrest flows directly from the Constitution which was merely crystalised by...
The Orissa High Court has ruled that the prospective nature of the Supreme Court's Mihir Rajesh Shah v. State of Maharashtra, 2025 LiveLaw (SC) 1066 ruling does not absolve the police/arresting authority of its duty to provide written grounds of arrest to the arrestee, since the right to be informed of the grounds of arrest flows directly from the Constitution which was merely crystalised by the aforesaid ruling. [2026 LiveLaw (Ori) 103]
While denying to assign a “restrictive” meaning to the observations made in the said judgment, the Bench of Justice Aditya Kumar Mohapatra remarked–
“Needless to say, the requirement of communicating the grounds of arrest to the arrestee is a constitutional mandate, which has also been incorporated in the statute book to ensure the effective administration of the criminal justice system. The issue, being one of considerable constitutional significance and directly affecting the fundamental rights of an arrestee, has already been analysed and authoritatively settled in the earlier judgments of the Hon'ble Supreme Court, including by the Constitution Bench. It therefore cannot be given a restrictive interpretation so as to hold that the requirement would apply only from the date of the judgment in Mihir Rajesh Shah (supra).”
The Court was hearing a bail plea of former BJD MLA Bikram Kumar Panda, who is an accused in the murder case of former Member of Odisha State Bar Council (OSBC) Advocate Pitabash Panda. A charge-sheet has been filed against the petitioner as well as the co-accused persons under Sections 103(1), 109(1), 61(2)(a), 111(2)(a), 238(a), 249(a) and 3(5) of the BNS read with Sections 25(1)(a), 25(6) and 27(1) of the Arms Act.
The primary contention of the petitioner was that the police did not supply the grounds of arrest either to him or to his family. Further, in the column reserved for “grounds of arrest” in the arrest memo, a vague statement was entered which read, “In the strength of above noted case”. The petitioner vehemently argued that his right under Article 22(1) of the Constitution read with Sections 47, 48 and 62 of the BNSS was brazenly violated, which makes the arrest bad in the eyes of law.
To substantiate the claim, explicit reliance was placed upon the decisions of the Apex Court in the cases of Pankaj Bansal v. Union of India, 2023 LiveLaw (SC) 844, Prabir Purkayastha v. State, 2024 LiveLaw (SC) 376 and Vihaan Kumar v. State of Haryana & Anr., 2025 LiveLaw (SC) 169.
The Court also noted that the top Court has taken into consideration the above-noted cases while deciding Mihir Rajesh Shah (supra). In that case, the Supreme Court directed that if the arresting officer/person is unable to communicate the grounds of arrest in writing on or soon after arrest, it be so done orally. However, the said grounds be communicated in writing within a reasonable time and in any case at least two hours prior to production of the arrestee for remand proceedings before the Magistrate.
In such judgment, the Court had further made it clear that the prescribed procedure shall govern arrests “henceforth”. In other words, it was clarified that the requirement of giving written grounds of arrest shall have a prospective effect and non-compliance of the said procedure in the arrests made prior to the judgment, shall not render them non-est for the stated reason.
This proposition of law found reiteration by the Apex Court recently in State of Meghalaya v. Sonam Raghuvanshi, 2026 LiveLaw (SC) 752. Notably, the Orissa High Court has also ingeminated the above stand in the cases of Lacha Madi v. State of Odisha, 2026 LiveLaw (Ori) 34 and Akash Kori @ Kasua v. State of Odisha (2026).
Departing from the aforesaid stance, Justice Mohapatra opined that the observation in Mihir Rajesh Shah (supra) cannot be interpreted in a restricted manner so as to convey that communication of such grounds of arrest would only be applicable from the date of such judgment. He was of the view that communication of written grounds of arrest is a constitutional mandate and hence, the same cannot be held to be non-existent in the pre-Mihir Rajesh Shah period.
“The intention of the Hon'ble Supreme Court, while making the observation in para-68 of Mihir Rajesh Shah (supra), was clearly to make it mandatory on the part of the Arresting Officers/Agencies to follow the conclusion drawn in para-66 thereof, while arresting a person henceforth. Thus, the observation in para-68 of the judgment in Mihir Rajesh Shah's case (supra) does not curtail or take away the fundamental right of an arrestee to be communicated with the grounds of arrest as has been guaranteed under the constitution as well as under the statute.”
While parting, the Court lamented repeated violation of procedures by the police during arrests. It thus directed the Registry to send a copy of the order to the Additional Chief Secretary, Home Department, Government of Odisha as well as Director General of Police, Odisha, so as to enable them to issue a specific directive to all the police stations mandating strict adherence to the procedures while arresting a person.
Case Title: Bikram Panda @ Bikram Kumar Panda v. State of Odisha
Case No: BLAPL No. 13860 of 2025
Date of Order: August 31, 2026
Counsel for the Petitioner: Mr. Ashok Kumar Parija, Senior Advocate along with Mr. Subir Palit, Senior Advocate & M/s. P.K. Dash, Sailaza Nandan Das & A. Acharya, Advocates
Counsel for the Opposite Parties: Mr. Partha Sarathi Nayak, Addl. Govt. Advocate for the State; Mr. Bijay Kumar Ragada, Advocate for the Informant
Citation: 2026 LiveLaw (Ori) 103