The Supreme Court recently reiterated that an accused has a fundamental and statutory right to be informed of the grounds of arrest in writing, and the written grounds must be furnished to the arrested person as a matter of course and without exception.

A bench of Justice Ujjal Bhuyan and Justice Atul Chandurkar stressed that the requirement under Article 22(1) of the Constitution is not a mere procedural formality but a mandatory constitutional safeguard that applies to arrests under all statutes, including the Bharatiya Nyaya Sanhita, 2023 and special enactments.

Article 22(1) provides that no arrested person shall be detained in custody without being informed, as soon as may be, of the grounds for arrest and shall not be denied the right to consult and be defended by a lawyer of his choice.

Section 50(1) of the CrPC, corresponding to Section 47 of the BNSS, gives statutory effect to this protection by requiring the arresting officer to forthwith communicate the full particulars of the offence or other grounds for arrest.

The Court emphasised that the purpose of furnishing grounds of arrest is to enable the arrested person to understand the basis of the arrest and to consult a lawyer so that the arrest, police remand or request for bail can be challenged. Relying on its earlier judgments, the Court observed that the information must be conveyed in a meaningful manner and in a language understood by the arrestee.

The Court relied on the principle laid down in Mihir Rajesh Shah v. State of Maharashtra that where the police are already in possession of documentary material furnishing a cogent basis for arrest, written grounds of arrest must be furnished to the accused on arrest.

As per the Mihir Shah judgment, an exception is available only when supplying written grounds immediately is impractical, such as offences against the body or property committed in flagrante delicto (getting caught in the act). In such cases, the grounds may initially be conveyed orally. But the written grounds must subsequently be supplied within a reasonable time and, in any event, not later than two hours before the accused is produced before the Magistrate for remand.

Summing up the legal position, the Court:

1. Emphasised that safeguards under Article 22(1) are fundamental principles and not merely procedural safeguards.
2. Rejected the argument that such a violation could be treated merely as a procedural lapse which would not, by itself, affect the legality of custody, and an accused must demonstrate prejudice before an arrest can be held illegal for non-compliance with Article 22(1). Once there is a violation, the question of prejudice or demonstrable prejudice does not arise, the Court held.
3. Distinguished release due to non-furnishing of grounds of arrest from release on bail. An accused released because the constitutional requirement under Article 22(1) was violated is not “enlarged on bail”, but is released from illegal and unconstitutional detention.
4. Emphasised that the requirement of supplying of grounds of arrest is not confined to any particular statute. Article 22(1) applies across the spectrum, including arrests under the BNS and special enactments. The Court said that it is not statute specific and any attempt to dilute the protection has to be dealt with strictly.
5. Held that violation of Article 22(1) vitiates not only the arrest but also the subsequent remand. A later filing of the chargesheet or an order taking cognizance cannot validate an arrest which was unconstitutional from the outset, the Court said.

The Courts's conclusion followed its examination of earlier decisions dealing with the communication of grounds of arrest. It also clarified the position emerging from its earlier decisions in Mihir Rajesh Shah v. State of Maharashtra and State of Meghalaya v. Sonam Raghuvanshi, holding that Mihir Rajesh Shah represents the binding legal position on the issue

The Mihir Shah judgment provided that the grounds of arrest have to be communicated in writing and prescribed the circumstances in which oral communication could temporarily be resorted to. Also, the grounds have to be furnished in a language known to the accused.

In Sonam Raghuvanshi case, the accused had been arrested on June 9, 2025, and the grounds of arrest were supplied to her on the same day. Her objection was that the grounds referred to Section 403(1) of the Bharatiya Nyaya Sanhita instead of Section 103(1). A coordinate bench considered this to be apparently a typographical error.

A coordinate bench in the Sonam Raghuvanshi decision drew a distinction between complete non-service of grounds of arrest and the furnishing of inadequate reasons, and held that complete non-service would vitiate the arrest, whereas in a case concerning inadequacy of the reasons, the prejudice caused to the accused would have to be considered.

It also made a passing observation that non-compliance with the requirement of furnishing grounds, followed by the accused's release, would not prevent the investigating agency from re-arresting the accused for the purpose of investigation.

In the present case, the Court observed that Sonam Raghuvanshi decision “may appear to strike a discordant note” with Mihir Rajesh Shah. However, it held that Sonam Raghuvanshi decision did not lay down the prevailing position. It pointed out that in Sonam Raghuvanshi, the arrest itself had taken place before Mihir Rajesh Shah.

“Therefore, it is Mihir Rajesh Shah which sums up the correct legal position and lays down the correct law which is binding. It is in tune with the consistent line of jurisprudence developed over the years by this Court,” the Court held.

The Court then set out the safeguards that must govern any attempt to re-arrest an accused who has been released because of a violation of Article 22(1).

As per the Mihir Shah judgment, if a person is release because the grounds of arrest were not furnished and the investigating agency still requires custody, it must approach the concerned Magistrate with an application setting out the reasons and necessity for custody and explaining why the grounds of arrest were not supplied at the initial stage.

In the present case, the Court strengthened the safeguard provided in the Mihir Shah judgment. It held –

1. The investigating agency must first furnish the written grounds of arrest to the accused. Only thereafter can it approach the concerned Magistrate with an application seeking custody or re-arrest.
2. The application must set out the reasons for the proposed re-arrest, the necessity for custodial interrogation and an explanation for why the grounds of arrest were not supplied when the accused was initially arrested.
3. The application must also carry the endorsement of the immediate superior authority. This requirement is intended to “rule out any foul play or collusion” and to ensure that the superior officer is aware that the subordinate officer had violated a constitutional provision.
4. The Magistrate must consider the application expeditiously, preferably within a week, while following the principles of natural justice. Re-arrest cannot be left to the discretion of the same authority that had violated Article 22(1). It must have “judicial imprimatur”.
5. The Magistrate can permit re-arrest only upon being satisfied that there were bona fide reasons why the grounds of arrest could not be furnished at the first instance, the grounds were subsequently furnished, and the accused nevertheless needs to be re-arrested.
6. Departmental disciplinary action be initiated against the officer responsible for the initial violation, and the investigation must be entrusted to another officer.

Case Details: Jaskaran Jeet Singh Deol v. State of Punjab | Crl.A. No. 4234/2026 Diary No. 35041/2026

Citation: 2026 LiveLaw (SC) 967

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