The Allahabad High Court has held that a challenge alleging violation of Fundamental Right under Article 22(1) of the Constitution (non-communication of grounds of arrest) in relation to the initial arrest and remand can only be raised during the stage governed by Section 167 CrPC, and not at a subsequent stage after charges have been framed.

A bench of Justice Manish Mathur made this observation while dealing with a petition challenging the formal arrest and subsequent remand of an accused who was already in custody in connection with an earlier FIR.

The Court held that the Supreme Court's judgment in Vihaan Kumar v. State of Haryana, which deals with the constitutional requirement of communicating the grounds of arrest, operates in relation to the Section 167 CrPC stage and not at subsequent stages of the criminal proceedings.

The Court ultimately dismissed the petition after noting that, by the time the challenge was being considered, the chargesheet had been filed, cognizance had been taken, charges had been framed and the trial was underway.

Case in brief

An FIR was lodged under Sections 148, 152 and 61(2) of the BNS against the accused/petitioner who was already in custody in connection with an earlier FIR.

The Anti-Terrorist Squad (ATS) sought the petitioner's production through a production warrant. He was formally arrested in the subsequent case on the PT warrant and was thereafter remanded to judicial custody and subsequently to police custody.

The petitioner challenged the formal arrest and remand orders on the grounds that his fundamental right under Article 22(1) of the Constitution was violated.

He alleged that he was not provided with the grounds of arrest and, therefore, the remand order was liable to be set aside.

The State, on the other hand, contended that the petitioner was already in custody in the earlier case and there was merely a change of custody, rather than a fresh arrest.

It was also argued that the chargesheet had subsequently been filed and cognizance taken, therefore, the challenge to the earlier remand was no longer significant.

High Court's observations

Before dealing with the Section 167 CrPC issue, the High Court answered the separate question of whether an accused already in custody can be formally arrested in another case.

Relying upon the Supreme Court's judgment in Dhanraj Aswani v. Amar S. Mulchandani, the Court held that a person already in custody in relation to one offence can subsequently be arrested in relation to a different offence, even while remaining in custody in the first case.

However, the Bench clarified that while doing so, the safeguards under Article 22(1), read with Section 48(2) of the Bharatiya Nagarik Suraksha Sanhita (BNSS), would have to be complied with in relation to such fresh arrest, meaning thereby that grounds of such arrest must be communicated.

In this regard, the Court referred to the Supreme Court's Vihaan Kumar judgment, wherein it was held that informing an arrested person of the grounds of arrest is a mandatory requirement of Article 22(1).

It also held that non-compliance vitiates the arrest and consequential remand orders, although it does not vitiate the investigation, chargesheet or trial.

Why Article 22(1) challenge is restricted to S. 167 CrPC Stage

The High Court clarified that the Article 22(1) safeguards discussed in the context of Vihaan Kumar operate at the stage of initial arrest and remand under Section 167 CrPC and not after Section 207 CrPC comes into operation.

The Court explained that the initial detention and remand is under Section 167 CrPC, which continues through the investigation stage. However, once the chargesheet is filed and the Court takes cognizance, Section 207 CrPC requires the Court to consider the police report and other relevant documents. Thereafter, further remand takes place under Sections 209 or 309 CrPC, as applicable.

The Court reasoned that once Section 207 CrPC is complied with, the accused is aware of the allegations against him as well as the outcome of the investigation. It observed thus:

"Evidently, once provisions of Section 207 Cr.P.C. stand complied with, obviously the accused is aware of the allegations levelled against him and also with regard to the outcome of the investigation against him. At this stage, therefore, it cannot be said that he is again required to be made aware of the reasons and grounds of arrest as envisaged under Article 22(1) of Constitution”

The Court therefore said that at that stage, the accused cannot be said to require fresh communication of the reasons and grounds of arrest under Article 22(1) before subsequent remand under Sections 209 or 309 CrPC.

The Court further reasoned that if Article 22(1) were held to require compliance even after Section 207 CrPC, it would "render Section 207 Cr.P.C. redundant", which could not have been the legislature's intention.

It said the underlying purpose of Article 22(1) is to ensure that an accused is not kept in the dark aboutlegislature's intentionsons or grounds of arrest so as to enable him or his family members to raise an effective defence.

The Court also noted that Vihaan Kumar did not discuss Sections 204, 207, 209 or 309 CrPC. It therefore held that the judgment in Vihaan Kumar is applicable only till the stage of Section 167 CrPC and “certainly not after applicability of Section 207 Cr.P.C.”

The High Court further clarified that it found no contradiction between Vihaan Kumar and the earlier Supreme Court judgments dealing with detention and remand.

On the merits, the High Court noted that the charge-sheet was filed on 25 November 2025, after which cognizance was taken on 27 January 2026.

The Court held that the challenge to the initial detention/remand on the ground of violation of Article 22(1) could not be entertained at this subsequent stage, as the Section 167 stage had already come to an end.

It ultimately held thus:

"In view of discussion made herein above, it is therefore evident that challenge to the initial detention and initial order of remand can be challenged for violation of Article 22(1) Cr.P.C. only till existence of the stage of Section 167 Cr.P.C and not thereafter"

What About Neeraj Judgment?

During the arguments, the State had relied upon a Division Bench judgment of the Allahabad High Court in Neeraj v. State of U.P. to contend that once the chargesheet had been filed and cognizance taken, the earlier remand could no longer be challenged.

For context, in Neeraj, a Division Bench of the High Court had dealt with the maintainability of a habeas corpus petition challenging detention after the criminal proceedings had progressed. It also considered the later Supreme Court decisions concerning illegal arrests, including Vihaan Kumar and found them to be non-binding.

Taking into account Neeraj, Justice Mathur distinguished it from the present case.

The Court noted that Neeraj concerned a habeas corpus petition, whereas the present proceedings involved a direct challenge to the legality of the arrest/remand under Section 528 BNSS.

The petition was accordingly dismissed.