Should Grounds Of Arrest Be Mandatorily Supplied 'Prior' To Arrest In Every Case?

After the Apex Court reiterates ground of arrest should be informed to the arrestee, a new argument is being raised by the prosecution side that if somebody is caught red-handed committing an offence...whether still notice stating his ground of arrest should be required to be given to him? Doesn't he know as to why he has been arrested? If a person is found in possession of huge quantity of narcotics or shooting someone, doesn't he know as to why he is being arrested?

An examinee cannot be called upon to write his answer until he is being served with a question. Similarly, a person cannot defend himself through his lawyer, until he knows what for he is being arrested. That was the idea which tickled Franz Kafka in one of his greatest novel, 'The Trial'. Fortunately enough, we, the people of India do not live in such an anarchic state of affairs and the pivotal person behind the drafting of our Constitution, Mr. B. R Ambedkar in his speech while drafting Article 15-A (Article 22) in the Constituent Assembly quoted Christie vs Leachinsky^[1] :

“1. If a policeman arrests without warrant upon reasonable suspicion of felony, or of other crime of a sort which does not require a warrant, he must in ordinary circumstances inform the person arrested of the true ground of arrest. He is not entitled to keep the reason to himself or to give a reason which is not the true reason. In other words, a citizen is entitled to know on what charge or on suspicion of what crime he is seized.

2. ***

3. The requirement that the person arrested should be informed of the reason why he is seized naturally does not exist if the circumstances are such that he must know the general nature of the alleged offence for which he is detained.”

That is how Article 22 of the Constitution of India has been incorporated, relevant portion of which is as follows :

22. (1) No person who is arrested shall be detained in custody without being informed, as soon as may be, of the grounds for such arrest nor shall he be denied the right to consult, and to be defended by, a legal practitioner of his choice.

Reflections Across Different Statutes  

To carry forward and execute such Constitutional intention, legislature in its own wisdom has incorporated similar statutory provisions in almost all the procedural statutes connected with penal consequences like Section 50 (1) of the Code of Criminal Procedure Code 1973 which has been reproduced once again as Section 47 (1) of the Bharatiya Nagarik Suraksha Sanhita. The similar safeguards can also be found in Section 35 of Foreign Exchange Regulation Act 1973, Section 104 of the Customs Act 1962, The Unlawful Activities (Prevention) Act, 1967 and section 52 of the Narcotic Drugs and Psychotropic Substances Act, 1985.

Judicial Views 

Time again the  Apex Court has taken a consistent view that a person before getting arrested should know as to why he is being arrested. In fact, a Constitution Bench of 5  Judges of Apex Court as early as 1962 have gone to the extent of saying that the person should not only be communicated the why he has been arrested but also it should be in his vernacular language or the language which he understands. ^[2]

The Apex Court keeping this in mind in a celebrated case of Madhu Limaye^[3] case has cautioned all the Magistrates across India to check the validity of arrest before remanding them into custody and also cautioned higher Courts to examine whether there was any breach at the time of remand causing violation of Article 20 (1) of our Constitution. They were also directed not to obliviate of the fact that an order of Judicial Remand does not get affirmation which is in contrast to our Constitutional as well as statutory pre-requisites. It was further held that a higher Court can interfere at any stage.

In 1994, when India was going through an economic liberalisation, in a case involving contravention of Foreign Exchange Regulation Act and Customs Act, 1973, one Deepak Mahajan^[4] was arrested. The matter was heard out by the Apex Court on the point that whether his detention is valid or not. The Court has taken a similar view and decided that the Learned Magistrate has no power to remand him.

Recently, the Supreme Court in Pankaj Bansal ^[5] case while dealing with a bail application under Prevention of Monay Laundering Act 2002, has once again came down heavily upon the Magistrate for non-adherence of the constitutional Mandate before remanding the accused under Section 167(1) of the Code of Criminal Procedure. In that case the remand order under Section 167(1) of the Code of Criminal Procedure was conspicuously silent as to whether the Learned Magistrate therein has perused the grounds of arrest or not. The appellant therein was granted bail because of such elementary fault on part of the prosecution as well as Magistrate making arrest illegal.

It is true that later on such view was criticised in the case of Ram Kishor Arora^[6] as the same runs counter to Vijay Madanlal Choudhary^[7] but the same was doubted only because the case was of Prevention of Money Laundering Act and the interpretation of Section 19 has been done differently by a Larger Bench in Vijay Madanlal Choudhary. It is pertinent to be mentioned herein that a review petition of Vijay Madanlal Choudhary^[8] is pending and the matter is listed on 07.05.2025 for further hearing.

The issue was once again rose in Prabir Purakayastha^[9] where the Apex Court has held :

“48. It may be reiterated at the cost of repetition that there is a significant difference in the phrase “reasons for arrest” and “grounds of arrest”. The “reasons for arrest” as indicated in the arrest memo are purely formal parameters viz. to prevent the accused person from committing any further offence; for proper investigation of the offence; to prevent the accused person from causing the evidence of the offence to disappear or tampering with such evidence in any manner; to prevent the arrested person for making inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the court or to the investigating officer. These reasons would commonly apply to any person arrested on charge of a crime whereas 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.”

Lastly, the same issue came for consideration before the Supreme Court of India in Vihaan Kumar versus State of Haryana and Others^[10] wherein a very feeble plea was raised from the prosecuting agency that arrest memo has been prepared whereby penal provisions has been mentioned. In reply to such plea, the Supreme Court observed from the factual matrix that :

“26. The stand taken before the High Court was that the appellant's wife was informed about the arrest. Information about the arrest is completely different from the grounds of arrest. The grounds of arrest are different from the arrest memo. The arrest memo incorporates the name of the arrested person, his permanent address, present address, particulars of FIR and Section applied, place of arrest, date and time of arrest, the name of the officer arresting the accused and name, address and phone number of the person to whom information about arrest has been given. We have perused the arrest memo in the present case. The same contains only the information stated above and not the grounds of arrest. The information about the arrest is completely different from information about the grounds of arrest. Mere information of arrest will not amount to furnishing grounds of arrest.”

Finally the Apex Court has concluded by forming the following conclusions :

“21. Therefore, we conclude:

a) The requirement of informing a person arrested of grounds of arrest is a mandatory requirement of Article 22(1);

b) The information of the grounds of arrest must be provided to the arrested person in such a manner that sufficient knowledge of the basic facts constituting the grounds is imparted and communicated to the arrested person effectively in the language which he understands. The mode and method of communication must be such that the object of the constitutional safeguard is achieved;

c) When arrested accused alleges non-compliance with the requirements of Article 22(1), the burden will always be on the Investigating Officer/Agency to prove compliance with the requirements of Article 22(1);

d) Non-compliance with Article 22(1) will be a violation of the fundamental rights of the accused guaranteed by the said Article. Moreover, it will amount to a violation of the right to personal liberty guaranteed by Article 21 of the Constitution. Therefore, non-compliance with the requirements of Article 22(1) vitiates the arrest of the accused. Hence, further orders passed by a criminal court of remand are also vitiated. Needless to add that it will not vitiate the investigation, charge sheet and trial. But, at the same time, filing of chargesheet will not validate a breach of constitutional mandate under Article 22(1);

e) When an arrested person is produced before a Judicial Magistrate for remand, it is the duty of the Magistrate to ascertain whether compliance with Article 22(1) and other mandatory safeguards has been made; and

f) When a violation of Article 22(1) is established, it is the duty of the court to forthwith order the release of the accused. That will be a ground to grant bail even if statutory restrictions on the grant of bail exist. The statutory restrictions do not affect the power of the court to grant bail when the violation of Articles 21 and 22 of the Constitution is established.”

Another Bench of the Apex Court on 25.03.2025 passed another order^[11] of bail on the similar ground.

How Soon Ground Of Arrest Should be Given ?

Article 22 (1) of the Constitution of India uses the expression “No person who is arrested shall be detained in custody …….” A plain reading of these words shows that as soon as the police intends to detain him, ground of arrest should be notified to him. That means that serving the cause of detention should be done first and then arrest should take place. However, sometimes it becomes a real problem to follow such a course because of the ground reality. However, the reason must be brought to arrestee's notice before he is being produced before the concerned Magistrate. The answer lies in the second part of Article 22 (1) which says “…. nor shall he be denied the right to consult, and to be defended by, a legal practitioner of his choice”. To enable him to consult his Learned Advocate and chalk out the appropriate court of action accordingly.

Final Answer 

In a criminal case, innocent till found guilty is the touchstone of Indian criminal justice delivery system. An accused always says that he has been framed in a particular criminal case. It is his Constitutional right to say to, even if he has been caught red handed.

As for an example, can we say that since a person has been apprehended with contraband has sufficient knowledge about what is the ground of his detention? The answer, with greatest humility is “NO”. Because it is the specific case of the arrestee/ accused that nothing has been seized from his custody and the entire prosecution case is a false one. If a Court presumes that he had sufficient knowledge, it shows that the Court is prejudging his guilt, even before he has been found guilty.

Another example is that if a Court says that there are 5 eye witnesses and a CCTV footage to show that a car has dashed 3-4 pedestrians in the broad daylight and while the driver was trying to flee, the local persons apprehended him. In that case also, if the Court say that the accused knows what he has done, goes to show that the Court has already decided the fate of trial, even before the Court reaches to it's logical conclusion through the rigorous process of trial. We have to keep in mind that the conclusion (d) of Vihaan Kumar which reiterates that granting release and/ or bail will not vitiate the investigation, charge sheet and trial. That also mean, that the Court should not come to a conclusion before the actual conclusion (read conviction) comes through the procedure established by law.

Article 22 (1) of the Constitution of India, Section 50 (1) of the Code of Criminal Procedure Code 1973, Section 47 (1) of the Bharatiya Nagarik Suraksha Sanhita etc. these are the procedure established by law. Each of these provisions carries the word “shall” which requires no more emphasis. It is trite law that when a statute prescribes a particular mode for doing something, that thing must be done following that particular mode only and any deviation from the charted course is necessarily forbidden. This principle was first enunciated in the celebrated case of Taylor versus Taylor^[12]. The same was later followed in Khawaza Nazir Ahmed Versus King Emperor^[13] and subsequently followed in innumerable cases by the Apex Court. This principle should apply with greater force when Court is dealing with a statute which empowers the Police to arrest a citizen thereby impinging on the citizen's fundamental rights to liberty and free movement.

Under such circumstances, whatever the case may be, the accused is entitled to get a notice of his grounds of arrest even before production before Magistrate, failing which the arrest becomes illegal and he is entitled to be released.

Author is an Advocate, High Court at Calcutta. Views Are Personal. 

1. [1947] A.C. 573 : (1947) 1 All ELR 567 ↑

2. Harikisan Versus State of Maharashtra & Others, AIR 1962 SC 911- Paragraphs 7, 8, 9 ↑

3. In the matter of Madhu Limaye & Others, Reported in 1969 1 SCC 292- Paragraphs 10, 11, 12. ↑

4. Directorate of Enforcement vs Deepak Mahajan and Another, reported in (1994) 3 SCC 440. ↑

5. Pankaj Bansal Versus Union of India, 2024 7 SCC 576- Paragraphs 20, 21, 22, 23. ↑

6. Ram Kishor Arora Versus Enforcement Directorate (2024) 7 SCC 599 ↑

7. Vijay Madanlal Choudhary Versus Union of India, (2023) 12 SCC 1- Paragraph 23. ↑

8. R.P. (Crl) 219/ 2022. ↑

9. Prabir Purokayastha Versus State, NCT of Delhi, 2024 8 SCC 254- Paragraph 48. ↑

10. 2025 SCC OnLine SC 269- Paragraphs 12, 21, 26, 28. ↑

11. SLP (Crl) No. 1662/ 2025 (Ashish Kakkar vs UT of Chandigarh) ↑

12. [L.R.] 1 ch. 426 ↑

13. AIR 1936 PC 253 ↑