Supreme Court: While considering these criminal appeals wherein the appellants raised concerns over violation of their rights Article 22(1) of the Constitution and Section 50 of the CrPC (Section 47 of Bharatiya Nagarik Suraksha Sanhita, 2023 [“BNSS”]) asserting that they were not informed of grounds of their arrest in writing, the Division Bench of B.R. Gavai, CJI., and Augustine George Masih*, J., held the following vis-a-vis communicating the grounds of arrest to the arrested person:
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The constitutional mandate of informing the arrestee the grounds of arrest is mandatory in all offences under all statutes including offences under Penal Code, 1860 (now BNS, 2023)
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The grounds of arrest must be communicated in writing to the arrestee in the language he/she understands;
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In cases where the arresting officer/person is unable to communicate the grounds of arrest in writing on or soon after arrest, it be so done orally. 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.
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In case of non-compliance of the above, the arrest and subsequent remand would be rendered illegal and the person will be at liberty to be set free.
“The ends of fairness and legal discipline therefore demand that this procedure as affirmed above shall govern arrests henceforth”.
Background:
On 07-07-2024, a white BMW car, driven at a high speed, collided violently with the complainant’s scooter from behind. The force of the impact propelled both the complainant and his wife onto the car’s bonnet, whereby the complainant was thrown to the side, and tragically, his wife became trapped between the vehicle’s front left wheel and bumper. Notwithstanding this grievous state, the driver, alleged to be the Appellant herein, persisted in his reckless flight, dragging the victim, thereafter, absconding without rendering assistance or reporting the incident to authorities. The victim succumbed to the severe injuries sustained in this collision, as medically confirmed, while the complainant sustained minor injuries.
Subsequently FIR was registered under the provisions of BNS and the appellant along with other co-accused were arrested. The evidence collected firmly established the Appellant as the driver at the material time, including CCTV footage capturing his presence at the wheel, consumption of alcohol shortly before the incident, an attempt to alter his appearance, and use of a Fastag registered in his name, amongst other incriminating particulars.
During the remand proceedings the Appellant was produced before the Judicial Magistrate First Class with initial police custody extending subsequently into judicial custody. This particular course of action was contested on the ground that the grounds of arrest were not furnished in writing as mandated by Article 22(1) of the Constitution and Section 47 of BNSS equivalent to Section 50 of CrPC.
Bombay High Court while considered the Appellant’s challenge to the arrest’s legality, acknowledged the procedural lapse, but upheld the validity of arrest due to the Appellant’s conscious awareness of the gravity of the offence, supported by substantial evidence and the Appellant’s evasion of arrest, thereby justifying custody despite the missing written grounds.
Therefore, the Appellant knocked the doors of the Supreme Court.
Issues Framed:
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Whether in each and every case, even arising out of an offence under IPC now BNS would it be necessary to furnish grounds of arrest to an accused either before arrest or forthwith after arrest
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Whether, even in exceptional cases, where on account of certain exigencies it will not be possible to furnish the grounds of arrest either before arrest or immediately after arrest, the arrest would be vitiated on the ground of non-compliance with the provisions of Section 50 of the CrPC (Section 47 BNSS).
Court’s Assessment:
Perusing the case, the Court stated that the genesis of informing the grounds of arrest to a person flows from the Constitutional safeguard provided in Article 21 of the Constitution, which reads “No person shall be deprived of his life or personal liberty except according to procedure established by law”. The expression ‘personal liberty’ has been given a wide meaning through various judicial pronouncements. One of which is that personal liberty includes procedural safeguards from the abuse of power by the State agencies and scrutiny of the actions of the State. Article 22 of the Constitution further strengthens the protection of personal liberty of a person by providing that a person arrested must be informed of the grounds of his arrest at the earliest and should not be detained without informing him of such grounds.
The Court further pointed out that the Constitutional safeguard provided under Article 22 of the Constitution has been effectuated by the legislature by incorporating Section 50 of CrPC/Section 47 of BNSS which puts into force the procedural mandate providing for the protection of the personal liberty of the person so arrested. Section 47 of BNSS casts a duty on the police officer or other person arresting any person without a warrant shall communicate him the grounds of arrest. Section 50A CrPC/ Section 48 BNSS was further added to extend the scope of such protection by casting a duty upon the person arresting to inform such grounds of arrest to his friend, relative or any other person nominated by arrested person.
Taking note of the afore-stated constitutional and statutory scheme on communication of the grounds of arrest, the Court then delved into relevant case laws that developed this jurisprudence. The Court relied on Pankaj Bansal v. Union of India, (2024) 7 SCC 576, wherein the Supreme Court had underscored that Article 22(1) of the Constitution mandates that no arrested person shall be detained without being informed of the grounds of such arrest at the earliest opportunity. The manner in which such grounds are to be communicated must be efficacious and substantive which must fulfil the essential objective and mandate of the constitutional provisions. It was further held that there exists no plausible justification as to why a written copy of the grounds of arrest ought not be provided to the arrestee as a standard procedural requirement without any exception. Similarly, in Prabir Purkayastha v. State (NCT of Delhi), (2024) 8 SCC 254, the Supreme Court had reiterated the principle in Pankaj Bansal (supra), while dealing with offences under UAPA and held that any individual arrested for alleged commission of offences under the UAPA or any other offence for that matter, has both a fundamental and a statutory right to be informed in writing such grounds of arrest.
“The arrest of an individual invariably impacts not only the person arrested himself, but also the persons associated with him, i.e. family, friends, relatives, etc., affecting their psychological balance and overall social well-being”.
The Court pointed out that the mandate contained in Article 22(1) of the Constitution is unambiguous and clear. The objective enshrined in Article 22(1) stems from the fundamental principle of providing opportunity to a person to allow him to defend himself from the accusations that are levelled against him leading to his arrest. The salutary purpose of informing the grounds of arrest is to enable the person to understand the basis of his arrest and engage legal counsel to challenge his arrest, remand or seek bail and/or avail of any other remedy as may be available to him/her under law.
The obligation to inform the grounds of arrest to the arrestee is thus, not just a mere procedural formality, instead it flows from the fundamental right of personal liberty which sets the further course for protection from the oppressive restrictions imposed upon the free movement in the society of an arrestee during remand. Furthermore, it is a mandatory binding constitutional safeguard which has been included in part III of the Constitution under the head of Fundamental Rights.
“Thus, if a person is not informed of the grounds of his arrest as soon as maybe, it would amount to the violation of his fundamental rights thereby curtailing his right to life and personal liberty under Article 21 of the Constitution of India, rendering the arrest illegal”.
The Court further emphasised that mere communication of the grounds in a language not understood by the person arrested does not fulfil the constitutional mandate under Article 22 of the Constitution and renders the constitutional safeguards illusory and infringes the personal liberty of the person as guaranteed under Article 21 and 22.
The Court explained that there is no harm in providing the grounds of arrest in writing in the language the arrestee understands, this approach would not only fulfil the true intent of the constitutional mandate but will also be beneficial for the investigating agency to prove that the grounds of arrest were informed to the arrestee when a challenge is made to the arrest on the plea of non-furnishing of the grounds of arrest. The Court thus opined that to achieve the intended objective of the constitutional mandate of Article 22(1) of the Constitution, the grounds of arrest must be informed to the arrested person in each and every case without exception and the mode of the communication of such grounds must be in writing in the language he understands.
The Court also addressed the obligation which has been imposed on a person making arrest, as provided under Section 50A read with Section 50 CrPC (Section 48 and 47 of BNSS) to inform the arrestee of his right to indicate his relative, friend or such other person for the purpose of giving information with regard to his arrest. The Court stated that the police officer/person making any arrest shall make an entry of the fact as to who has been informed of such an arrest in a book to be kept in the police station. Further protection in this regard is reflected when a duty has been cast on the Magistrate to satisfy himself, when the arrestee is produced before him, that the above requirement stands complied with. This requirement is in addition to the rights of an arrestee to be made aware of the grounds of arrest.
The Court considered the 2nd issue that whether in exceptional cases, where on account of certain exigencies it will not be possible to furnish the grounds of arrest either before arrest or immediately after arrest, the arrest would be vitiated on the ground of non-compliance with the provisions of Section 50 of the CrPC. The Court held that in cases where the police are already in possession of documentary material furnishing a cogent basis for the arrest, the written grounds of arrest must be furnished to the arrestee on his arrest. However, in exceptional circumstances such as offences against body or property committed in flagrante delicto, where informing the grounds of arrest in writing on arrest is rendered impractical, it shall be sufficient for the police officer or other person making the arrest to orally convey the same to the person at the time of arrest. Later, a written copy of grounds of arrest must be supplied to the arrested person within a reasonable time and in no event later than two hours prior to production of the arrestee. The Court explained that lower limit of two hours minimum interval before the production is grounded in the functional necessity so that the right as provided to an arrestee under the Constitution and the statute is safeguarded effectively. This period would ensure that the counsel has adequate time to scrutinize the basis of arrest and gather relevant material to defend the arrestee proficiently and capably while opposing the remand.
Lastly the Court clarified that there existed no consistent or binding requirement mandating written communication of the grounds of arrest for all the offences. “Holding as above, in our view, would ensure implementation of the constitutional rights provided to an arrestee as engrafted under Article 22 of the Constitution of India in an effective manner”.
[Mihir Rajesh Shah v. State of Maharashtra, Criminal Appeal No(s).2195/2025, decided on 6-11-2025]
*Judgment by Justice Augustine George Masih
Advocates who appeared in this case:
For Appellant(s): Mr. Siddharth Sharma, AOR Ms. Ishika Chauhan, Adv. Ms. Aishwarya, Adv. Ms. Smriti Churiwal, Adv. Ms. Akshada Pasi, Adv. Mr. Vishesh Vijay Kalra, AOR Ms. Sonia Sharma, Adv. Mr. Jaiveer Kant, Adv. Mr. Vikram Chaudhri, Sr. Adv. Mr. Rishi Sehgal, Adv. Mr. Nikhil Jain, AOR Ms. Muskaan Khurana, Adv. Ms. Divya Jain, Mr. Karl P. Rustomkhan, Adv. Mr. Vaibhav Jagtap, Adv. Mr. Ashish Pandey, AOR Mr. Shubham Saxena, Adv. Mr. Siddharth Sharma, AOR Mr. Vishesh Vijay Kalra , AOR Mr. Nikhil Jain, AOR Mr. Ashish Pandey, AOR
For Respondent(s): Ms. Rukhmini Bobde, Adv. Mr. Aaditya Aniruddha Pande, AOR Mr. Sourav Singh, Adv. Mr. Siddharth Dharmadhikari, Adv. Mr. Shrirang B. Varma, Adv. Mr. Amlaan Kumar, Adv. Mr. Jatin Dhamija, Adv. Mr. Vinayak Aren, Adv. Mr. Aaditya Aniruddha Pande, AOR
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