He made two more observations. First, the Supreme Court in Mihir Rajesh Shah had already, taken away the police's power to re-arrest on their own. As a result, further remand or custody, if required, cannot go through without seeking prior permission of the magistrate. Second, the Supreme Court had not indicated the basis on which the Magistrate should grant or refuse such permission. On this, Mr Bhushan argued that re-arrest should be allowed only if the accused was released while the remand period was still running. Once remand period is over, there is no justification left for a second arrest.

On 21 September 2026, in Jaskaran Jeet Singh Deol, the Supreme Court took up exactly this issue.

The Case

Deol was arrested in a POCSO case in May 2026 and produced before a Magistrate the next day without being furnished with written grounds of arrest. The Magistrate declared his arrest illegal and released him. The police promptly applied for custody again, still without supplying grounds. The permission was declined by the Magistrate.

Deol then moved the Punjab and Haryana High Court, seeking protection from re-arrest, however the High Court declined to protect him, holding that an illegal arrest gives no immunity from a lawful re-arrest. This was broadly the view of the High Courts at the time, which ultimately did not find favour with the Supreme Court.

What Deol Holds

The Supreme Court returned a finding that once the police stands in breach of Article 22(1), they cannot be trusted to decide for themselves whether to arrest again. That decision now vests with the Magistrate. If the Police still want custody, they must, first, supply the written grounds of arrest which they failed to in the first place. They must then apply to the Magistrate, providing reasons as to why custody is still required and why the grounds were not furnished the first time. Additionally, the officer's immediate superior must endorse that application.

The Magistrate may then allow re-arrest only if the original lapse was shown as bona fide and custody is genuinely necessary. It also applies where the release was for breach of the 24-hour mandate under Article 22(2).

The Court made three more observations that are worth mentioning. First, a release for an Article 22 violation does not amount to bail. Instead, it is a release from an unconstitutional detention. Ergo, the line of authority on re-arrest after default bail has no application where arrest was set aside for infraction of fundamental rights under clauses (1) and (2) of Article 22. Second, the gravity of the alleged offence cannot dilute a constitutional guarantee of life and liberty except in accordance with procedure established by the Constitution and the Laws. Third, the infraction of a Constitutional provision itself, in this case Article 22, must not go unanswered. When a superior officer receives an application for endorsement seeking custody of an accused released for want of grounds of arrest, he must transfer the investigation to another officer and direct a departmental enquiry into the lapse. If the said enquiry results in an adverse finding, departmental action must ensue, with an entry in the service book of the delinquent officer. Compensation, as a public-law remedy, is available in an appropriate case.

Meeting the Concern

On the central concern, Deol goes as far as one could ask. The police can no longer re-arrest on their own volition.

On the grounds for permitting re-arrest, Deol relies on a fault-based test, allowing re-arrest only where the original failure was shown as bona fide. In my opinion, this is a strong standard. A lapse occasioned by administrative negligence should defeat the application altogether, notwithstanding the genuineness of the police's claim to custody. Thus, the above test directly answers the concern that the police should not profit from their own default.

What Counts as Bona Fide?

“Bona fide” or as alternatively known as “Good faith” carries two shades. First, Section 3(22) of the General Clauses Act, 1897 treats an act to be done in good faith where it is done honestly, “whether it is done negligently or not”. Second, Section 2(11) of the BNS employs a stricter standard by stating that nothing is done in good faith if it is done “without due care and attention”. Since Article 22(1) is a constitutional safeguard, a stricter standard is ordinarily the more appropriate one.

Applied to arrests, instances that may be regarded as bona fide may include:

1. An arrest made in flagrante delicto i.e. on the spot, in the course of or immediately after the commission of an offence, where reducing the grounds to writing is not practicable;

2. An arrest made in a law-and-order situation, such as a riot;

3. A reasonable delay occasioned in obtaining a translation into a language the accused understands.

By contrast, the following instances may not be accepted as bona fide:

1. An arrest made after an investigation, where the grounds could easily have been prepared in advance;

2. Grounds which mechanically reproduce the contents of the FIR, without setting out the facts that connect the accused to the offence or the reasons that make the custody necessary;

3. A repetition of the default, as in Deol , where the police moved a fresh application before the Magistrate seeking custody, again without furnishing grounds;

These examples are purely illustrative in nature. In essence, the real test is whether the failure is a result of a genuine difficulty/impracticality in compliance with the mandate of Article 22(1) or a colourable exercise of power designed to frustrate the valuable rights of the accused.

That said, the question of good faith can hardly be answered on the agency's application alone. In Mihir Rajesh Shah, the Supreme Court held that the application is to be decided by following principles of natural justice, after hearing both parties.

A Suggestion on Section 187 BNSS

Since the appellant in Deol was released the day after his arrest, the question of how custody undergone in an illegal arrest is to be reckoned under Section 187 of the BNSS did not arise for consideration of the Supreme Court. It may, however, arise in cases where the illegality comes to light only after the accused has spent some time in illegal detention.

For context, Section 187 involves two distinct periods. The first is an overall period of detention during investigation, which can either be 60 or 90 days depending on the nature of offence. The second is a 15 days custody, which ordinarily implies police custody, which may be availed in parts within the first 40 or 60 days out of the maximum permissible detention period. The more sensible interpretation is that custody undergone while the illegal arrest was operative should count against both periods mentioned above, so that a re-arrest cannot revive a police custody window that would otherwise have closed. This would also align with Deol's underlying intent, that the police should not profit from their own default, at the expense of the personal liberty of the accused.

Thus, it is suggested that custody under the illegal arrest must be reckoned towards the computation of total permissible period of detention under Section 187 of the BNSS. Police custody already undergone should be set off against the 15-day cap. Furthermore, the period for availing default bail should run from the first arrest.

Mr Bhushan ended his piece by saying the State should not get second chances where personal liberty is at stake. Deol does not go quite that far. It allows re-arrest, subject to a magistrate's approval and only where the first failure was shown to be bona fide. In my opinion, that is a defensible position for now. However, whether it holds up in practice will depend on how strictly and consistently the fault-based test is followed, and on how narrowly courts choose to define “bona fide reasons”.

Author is presently serving as Assistant Advocate General for State of Haryana and practicing before Punjab and Haryana High Court at Chandigarh. Views are personal.