2025 (11) TMI 367 - SC - Indian Laws

Written grounds of arrest required under Article 22(1) and Section 50 CrPC (now Section 47 BNSS); noncompliance invalidates remand

Mihir Rajesh Shah Versus State of Maharashtra And Another

SC held that failure to furnish written grounds of arrest violated Article 22(1) and Section 50 CrPC (now Section 47 BNSS) and undermines procedural ... Appellants were not informed of grounds of their arrest in writing - Violation of the Appellants’ right under Article 22(1) of the Constitution of India and Section 50 of the Code of Criminal Procedure, 1973 (CrPC 1973) now Section 47 of Bharatiya Nagarik Suraksha Sanhita, 2023 - HELD THAT:- The genesis of informing the grounds of arrest to a person flows from the Constitutional safeguard provided in Article 21 of the Constitution of India, 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. In Pankaj Bansal [2023 (10) TMI 175 - SUPREME COURT], this Court while dealing with the issue of furnishing grounds of arrest under Section 19(1) of PMLA has 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. The mandate contained in Article 22(1) of the Constitution of India is unambiguous and clear in nature, it provides that the arrested person must be informed of the grounds of arrest as soon as they can be. It further provides that the arrested person has the right to defend himself by consulting a legal practitioner of his choice. This constitutional mandate has been effectuated by the legislature in Section 50 of CrPC 1973 (now Section 47 of BNSS 2023) which provides that an arrested person shall be forthwith communicated with the grounds of his arrest - The objective enshrined in Article 22(1) of the Constitution of India for furnishing grounds of arrest 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. Section 167 of CrPC 1973 (now Section 187 of BNSS 2023) while dealing with remand provides for a positive mandate on the police officer to forward the accused to the magistrate before expiry of such period as fixed under Section 57 CrPC 1973 (now Section 58 of BNSS 2023) when investigation cannot be completed in twenty-four hours. It further mandates that the magistrate to not authorize the detention of accused unless he is physically produced before him. The purpose of this provision mandating the production of accused before magistrate for exercise of the power of remanding him to custody under this section is with the dual purpose - The magistrate is not acting as a post office simply putting a stamp of approval to the remand papers as presented before him. The legal position which emerges is that the constitutional mandate provided in Article 22(1) of the Constitution of India is not a mere procedural formality but a constitutional safeguard in the form of fundamental rights. The intent and purpose of the constitutional mandate is to prepare the arrested person to defend himself. If the provisions of Article 22(1) are read in a restrictive manner, its intended purpose of securing personal liberty would not be achieved rather curtailed and put to disuse. The mode of communicating the grounds of arrest must be such that it effectively serves the intended purpose as envisioned under the Constitution of India which is to enable the arrested person to get legal counsel, oppose the remand and effectively defend himself by exercising his rights and safeguards as provided in law. The grounds of arrest must be provided to the arrestee in such a manner that sufficient knowledge of facts constituting grounds is imparted and communicated to the arrested person effectively in a language which he/she understands - This Court is of the opinion that to achieve the intended objective of the constitutional mandate of Article 22(1) of the Constitution of India, 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. When grounds of arrest are not furnished either prior to arrest or immediately after the arrest, would it vitiate the arrest for non-compliance of the provisions of Section 50 of CrPC 1973 (now Section 47 of BNSS 2023) irrespective of certain exigencies where furnishing such grounds would not be possible forthwith? - HELD THAT:- It is by now settled that if the grounds of arrest are not furnished to the arrestee in writing, this non-compliance will result in breach of the constitutional and statutory safeguards hence rendering the arrest and remand illegal and the person will be entitled to be set at liberty. The statute is silent with regard to the mode, nature or the time and stage at which the grounds of arrest has to be communicated. Article 22 says ‘as soon as may be’ which would obviously not mean prior to arrest but can be on arrest or thereafter. The indication is as early as it can be conveyed. There may be situations wherein it may not be practically possible to supply such grounds of arrest to the arrested person at the time of his arrest or immediately. 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 before the magistrate for remand proceedings. The remand papers shall contain the grounds of arrest and in case there is delay in supply thereof, a note indicating a cause for it be included for the information of the magistrate. The non supply of grounds of arrest in writing to the arrestee prior to or immediately after arrest would not vitiate such arrest on the grounds of non-compliance with the provisions of Section 50 of the CrPC 1973 (now Section 47 of BNSS 2023) provided the said grounds are supplied in writing within a reasonable time and in any case two hours prior to the production of the arrestee before the magistrate for remand proceedings. The constitutional mandate of informing the arrestee the grounds of arrest is mandatory in all offences under all statutes including offences under IPC 1860 (now BNS 2023) - The grounds of arrest must be communicated in writing to the arrestee in the language he/she understands - In case(s) 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. Appeal disposed off. ISSUES PRESENTED AND CONSIDERED 1. Whether Article 22(1) of the Constitution and Section 47 of BNSS 2023 (formerly Section 50 CrPC) require that grounds of arrest be furnished in writing in every case, including offences under the general penal code. 2. Whether non-communication in writing of grounds of arrest at or immediately after arrest vitiates the arrest in all circumstances, or whether exceptions exist where oral communication followed by subsequent written supply suffices. 3. If exceptions exist, what is the permissible timeframe and manner for supplying written grounds of arrest so as to satisfy Article 22(1) and the statutory mandate; and what is the remedial consequence of non-compliance. 4. Ancillary questions considered: (a) whether the grounds must be in a language understood by the arrestee; (b) the role of informing relatives/friends under Section 48 BNSS 2023 (formerly Section 50A CrPC) and the magistrate's duty to satisfy compliance; and (c) the effects of an unconstitutional arrest on subsequent remand/orders and filing of charge-sheet. ISSUE-WISE DETAILED ANALYSIS Issue 1 - Constitutional and statutory requirement to furnish grounds of arrest in writing in every case Legal framework: Article 22(1) guarantees that an arrested person shall be informed 'as soon as may be' of the grounds for arrest and shall have the right to consult a legal practitioner. Section 47 BNSS 2023 (formerly s.50 CrPC) imposes a duty on the arresting person to 'forthwith communicate' full particulars of the offence or other grounds for arrest. Section 48 BNSS 2023 (formerly s.50A CrPC) requires informing a nominated relative/friend and the magistrate to satisfy compliance. Precedent treatment: Earlier Supreme Court decisions (including the judgment in Pankaj Bansal and the subsequent Prabir Purkayastha) held that, to serve the purpose of Article 22(1), grounds of arrest should be furnished in writing as a matter of course and without exception; other precedents (notably Vihaan Kumar) recognised practical difficulties and did not read a rigid statutory mandate for written communication in every situation. Interpretation and reasoning: The Court reasoned that the constitutional mandate is mandatory and not statute-specific: its object is to enable the arrested person to understand allegations, consult counsel, oppose remand and seek bail. Written communication in a language understood by the arrestee best serves that object by eliminating disputes about compliance, facilitating counsel's preparation, and preserving dignity and liberty. The Court harmonised earlier authorities by reaffirming the general rule in favour of written communication while acknowledging operational realities. Ratio vs. Obiter: Ratio - the constitutional duty to inform grounds of arrest is mandatory in all offences and must, as a general rule, be communicated in writing in a language the arrestee understands. Obiter - observations describing the stigmatic and psychological impacts of arrest and policy remarks about police practices beyond immediate legal prescriptions. Conclusions: The grounds of arrest must be communicated in writing to the arrested person in each and every case and in a language understood by him/her, to effectuate Article 22(1) and Section 47 BNSS 2023, subject to the nuanced temporal exceptions addressed below. Issue 2 - Whether non-communication in writing at the time of arrest always vitiates the arrest; permissible exceptions Legal framework: Article 22(1)'s phrase 'as soon as may be' permits temporal flexibility; Section 47 BNSS 2023 requires 'forthwith' communication. No express statutory timetable or mandatory mode is prescribed in the statute. Precedent treatment: Pankaj Bansal and Prabir Purkayastha emphasised written communication generally and treated non-compliance as vitiating arrest; Vihaan Kumar emphasised practical difficulty and observed written communication may not be possible in every situation. Interpretation and reasoning: The Court reconciled authorities by distinguishing routine/documentary arrests from exigent, flagrante delicto situations. Where the arresting agency already possesses documentary material or the circumstances permit, written grounds must be furnished on arrest. Where immediacy of arrest is compelled by the nature of the offence (e.g., offences committed in the presence of police, imminent risk of absconding or further harm), oral communication at arrest is permissible provided a written copy is supplied subsequently within a defined reasonable interval. The Court balanced constitutional safeguards with legitimate operational exigencies of law enforcement. Ratio vs. Obiter: Ratio - non-supply of written grounds at arrest does not ipso facto vitiate arrest if (i) oral grounds are provided at arrest due to exigency and (ii) written grounds are furnished within the prescribed reasonable timeframe; Obiter - illustrative examples of exigent scenarios and policy comments about police efficiency. Conclusions: Non-communication in writing at the moment of arrest will not automatically vitiate the arrest where exigent circumstances necessitate immediate action and oral communication is given; but written grounds must follow within the temporal limits set by the Court (see Issue 3). In non-exigent situations the written grounds must be furnished upon arrest. Issue 3 - Permissible timeframe, manner and remedial consequence of non-compliance Legal framework: Derived from Article 22(1), Section 47 and Section 48 BNSS 2023 together with remand provisions (Section 187 BNSS 2023 formerly s.167 CrPC) and judicial duty to scrutinise remand applications. Interpretation and reasoning: To make the right meaningful, the Court prescribes that where written grounds could not be supplied immediately due to exigency, a written copy must be provided within a reasonable time and in any event not later than two hours prior to production before the magistrate for remand proceedings. The two-hour minimum is founded on ensuring counsel has adequate time to review and prepare to oppose remand and to preserve the practical ability to exercise rights. Remand papers must contain the grounds and, if there is delay, a note explaining the cause for the magistrate's information. Precedent treatment: This calibrated temporal rule reconciles Pankaj Bansal/Prabir Purkayastha (emphasis on written grounds) with Vihaan Kumar (recognition of practical exceptions) by setting a concrete deadline consistent with Article 22(1)'s 'as soon as may be'. Ratio vs. Obiter: Ratio - written grounds must be supplied in the language understood by the arrestee and, if not delivered at arrest for valid reasons, must be supplied not later than two hours before remand hearing; failure to comply renders the arrest and subsequent remand illegal; Obiter - guidance about magistrate's expeditious disposal of applications after release and procedural entries at the police station. Conclusions: Written grounds must be supplied before remand within the two-hour pre-production threshold where immediate written supply was impractical; non-adherence to this schedule vitiates arrest and remand and entitles the arrested person to be released. Following release, custody/remand may be sought again only after written grounds are supplied and the magistrate adjudicates any fresh remand application expeditiously. Issue 4 - Language, informing relatives/friends, magistrate's duties, and effect of unconstitutional arrest on subsequent proceedings Legal framework and precedent: Harikisan and subsequent authorities require communication in a language and script the detenue/arrestee understands; Section 48 BNSS 2023 mandates informing a nominated relative/friend and keeping a station record; magistrate must satisfy himself about compliance. Interpretation and reasoning: The Court emphasized that communication in a language not understood by the arrestee defeats Article 22(1)'s purpose. Section 48's duty to inform relatives/friends and the magistrate's supervisory role are complementary safeguards to ensure prompt access to legal assistance. An arrest rendered unconstitutional by non-compliance cannot be validated retroactively by filing of a charge-sheet or subsequent cognizance; continued custody based on void arrest/remand is rendered unlawful. Ratio vs. Obiter: Ratio - grounds must be in language understood by the arrestee; arrest rendered unconstitutional by breach of Article 22(1)/s.47 cannot be cured by subsequent procedural acts such as charge-sheet or cognizance; magistrate has duty to ensure statutory requirements are fulfilled; Obiter - observations on stigma, mental health and social impact of arrest. Conclusions: Grounds must be in an understandable language; arresting officers must inform nominated persons and record compliance; magistrates must verify compliance; and an unconstitutional arrest/remand is not validated by later prosecutorial steps. Supplementary/Concurred Position A judge supplemented the opinion to reiterate that the written communication requirement extends equally to informing nominated relatives/friends so as to operationalize early legal assistance; the supplement underscored the purpose of Section 48 BNSS 2023 in empowering third parties to secure prompt legal relief for the arrested person. Net Holding / Practical Directions i) Grounds of arrest must be communicated in writing in each and every case and in a language understood by the arrestee as the general rule. ii) In true exigencies where immediate arrest is necessary, oral communication is permissible at arrest but a written copy must be supplied within a reasonable time and in any event not later than two hours before production for remand; remand papers must record grounds and explain any delay. iii) Failure to comply with the above will render the arrest and subsequent remand illegal, entitling the arrested person to release; remedial applications for custody/remand may be heard afresh post-supply of written grounds.