Last week, a two-judge Bench of the Supreme Court comprising Justices Abhay S. Oka and N. Kotiswar Singh handed down an important decision regarding the furnishing of grounds of arrest to accused.
The Bench observed that informing the detained person of the grounds of arrest is not a formality but a mandatory constitutional requirement.It emphasized that the grounds of arrest must be provided to the arrested person in such a manner as to sufficiently convey knowledge of the basic facts constituting the grounds to the arrested person effectively, in the language that they understand.
Facts of the case
The facts of the case are as follows. One Vihaan Kumar was arrested in connection with a first information report (FIR) lodged on March 25, 2023, for the offences under Sections 409,420, 467, 468 and 471 read with Section 120-B of the Indian Penal Code (‘IPC’).
According to Kumar, he was arrested on June 10, 2024, at about 10.30 a.m. at his office premises in Gurugram, Haryana. On June 11, 2024, at 3:30 p.m, he was produced before the Judicial Magistrate(in charge). Since Kumar was not produced before the magistrate within 24 hours of his arrest, he alleged the violation of Article 22(2) of the Constitution, which mandates that, "every person who is arrested and detained in custody shall be produced before the nearest magistrate within a period of twenty-four hours of such arrest excluding the time necessary for the journey from the place of arrest to the court of the magistrate and no such person shall be detained in custody beyond the said period without the authority of a magistrate."
A similar requirement is incorporated in
Section 57 of the Code of Criminal Procedure (CrPC), 1973. The State of Haryana, however, claimed that Kumar was arrested on June 10, 2024, at 6:00 p.m, and thus Article 22(2) was complied with.
Kumar further alleged that neither in the remand report nor in the order dated June 11, 2024, passed by the Magistrate, the time of arrest was mentioned.
Decision of the Court
Conditions of Section 41 (ba) have to be satisfied
The Bench first examined statutory provisions regarding arrest. Section 41(1) of the CrPC details when police 'may' arrest a person without a warrant. The corresponding proviso in the
Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) is
Section 35. Since in
Kumar, the commission of a cognizable offence is punishable with imprisonment for a term that may extend to more than seven years had been alleged, clause (ba) of Section 41(a) was attracted.
This implies that a police officer can arrest a person without an order of a Magistrate or warrant subject to the following conditions:
a) Credible information has been received against the person that he has committed a cognizable offence punishable with imprisonment for more than seven years and
b) The police officer has reason to believe on the basis of the information received that such a person has committed the offence.
The Bench opined that a police officers cannot casually arrest a person against whom the commission of an offence punishable with imprisonment for more than seven years is alleged. They can arrest the accused provided the twin conditions in clause (ba) are satisfied.
Grounds of arrest under Article 22 (1) have to be furnished
The Bench thereafter examined the allegations of grounds of arrest having not supplied to the petitioner.
Article 22(1) of the Constitution provides that no person who is arrested shall be detained in custody without being informed, as soon as may be, of the grounds for such arrest. The Article does not state that the grounds of arrest are to be given in writing.
Relying upon the decisions in Pankaj Bansal and Prabir Purkayastha, the Bench observed that grounds should be effectively and fully communicated to the arrestee in a manner in which he will fully understand the same. The Bench added that if the grounds of arrest are not communicated to the arrestee, as soon as may be, he will not be able to effectively exercise the right to consult an advocate.
"This requirement incorporated in Article 22(1) also ensures that the grounds for arresting the person without a warrant exist. Once a person is arrested, his right to liberty under Article 21 is curtailed. When such an important fundamental right is curtailed, it is necessary that the person concerned must understand on what grounds he has been arrested. That is why the mode of conveying information of the grounds must be meaningful so as to serve the objects stated above", the Bench held.
The Bench thus held that informing the person arrested of the grounds of arrest is not a formality but a mandatory constitutional requirement.
"Article 22 is included in Part III of the Constitution under the heading of Fundamental Rights. Thus, it is the fundamental right of every person arrested and detained in custody to be informed of the grounds of arrest as soon as possible", the Bench held.
The Bench found that when a person is arrested without a warrant, and the grounds of arrest are not informed to him, as soon as may be, after the arrest, it will amount to a violation of his fundamental right guaranteed under Article 21 as well.
"In a given case, if the mandate of Article 22 is not followed while arresting a person or after arresting a person, it will also violate fundamental right to liberty guaranteed under Article 21, and the arrest will be rendered illegal. On the failure to comply with the requirement of informing grounds of arrest as soon as may be after the arrest, the arrest is vitiated. Once the arrest is held to be vitiated, the person arrested cannot remain in custody even for a second", the Bench added.
Filing of the chargesheet doesn’t absolve observing Article 22 requirements
The Bench rejected the argument of the state government that Kumar after arrest was repeatedly remanded to custody, and now a chargesheet has been filed, and thus custody of Kumar was under a court order.
The Bench observed that accepting such an argument would amount to completely nullifying Articles 21 and 22(1) of the Constitution.
"Once it is held that arrest is unconstitutional due to violation of Article 22(1), the arrest itself is vitiated. Therefore, continued custody of such a person based on orders of remand is also vitiated. Filing a charge sheet and order of cognizance will not validate an arrest which is per se unconstitutional, being violative of Articles 21 and 22(1) of the Constitution of India. We cannot tinker with the most important safeguards provided under Article 22", the Bench underlined.
The Bench, however, did not address the other argument that the state government had advanced. It argued that even if the petitioner was released on the grounds of violating Article 22, the police could arrest him again. The Bench observed that it was not necessary to decide this issue.
Entry in Station Diary Entry must have grounds of arrest
On the facts of the case, the Bench noted that the police relied upon an entry in the case diary allegedly made at 6.10 p.m. on June 10, 2024, which recorded that the petitioner was arrested after informing him of the grounds of arrest.
Unimpressed with the argument, the Bench noted that if the police want to prove communication of the grounds of arrest only based on a diary entry, it is necessary to incorporate those grounds of arrest in the diary entry or any other document.
"The grounds of arrest must exist before the same are informed. Therefore, in a given case, even assuming that the case of the police regarding requirements of Article 22(1) of the constitution is to be accepted based on an entry in the case diary, there must be a contemporaneous record, which records what the grounds of arrest were", the Bench noted.
It added that when an arrestee pleads before a Court that grounds of arrest were not communicated, the burden to prove the compliance of Article 22 (1) is on the police.
Application of S. 50 CrPC cannot dilute the mandate of Article 22 (1)
The Bench addressed yet another argument of the state. It was argued under Section 50(1) of CrPC, there is an option to communicate to the person arrested the full particulars of the offence for which he is arrested or the “other” grounds for the arrest.
The Bench rejected the argument. It opined that Section 50 cannot have the effect of diluting the requirement of Article 22(1). If held so, Section 50 will attract the vice of unconstitutionality.
"Section 50 lays down the requirement of communicating the full particulars of the offence for which a person is arrested to him. The ‘other grounds for such arrest’ referred to in Section 50(1) have nothing to do with the grounds of arrest referred to in Article 22(1). The requirement of Section 50 is in addition to what is provided in Article 22(1). Section 47 of the BNSS is the corresponding provision. Therefore, what we have held about Section 50 will apply to Section 47 of the BNSS", the top court held.
It noted that in its response filed in the high court, the police did not deal with at all the grounds pleaded by the petitioner regarding non-supply of the grounds of arrest.
The police merely stated that the petitioner's wife was informed about the arrest.
The Bench noted that it was not even pleaded by the police before the high court that grounds of arrest were communicated or informed to the petitioner. However, in reply to the appeal filed in the Supreme Court, the police stated that when informing the petitioner’s wife about the petitioner’s arrest, the grounds of arrest were also explained to her in detail as per the provisions of Section 50A of CrPC.
The Bench held that the contention that the petitioner's wife was informed about the grounds of arrest is an afterthought, as no such contention has been raised in the reply filed before the High Court.
"Communication of the grounds of arrest to the wife of the arrestee is no compliance with the mandate of Article 22(1). As the ground of non-compliance with Article 22(1) has been specifically pleaded in this appeal, this was the second opportunity available to the 1st respondent to plead and prove that grounds of arrest were informed to the appellant. However, it has not been done, and his contention is that the grounds of arrest were communicated to the appellant’s wife", the Bench held.
Importantly, the Bench ruled that mentioning the grounds of arrest in the remand report is no compliance with the requirement of informing the arrestee of the grounds of arrest.
It underscored that informing of the accused of arrest cannot be equated with the furnishing of grounds of arrest.
High Court’s approach disapproved
Disapproving the approach of the high court, the apex court said the former had, unfortunately, equated information given regarding the appellant’s arrest with the grounds of arrest.
"The observation that the allegation of non-supply of the grounds of arrest made by the appellant is a bald allegation is completely uncalled for. All courts, including the High Court, have a duty to uphold fundamental rights", the Bench held.
When a violation of Article 22(1) is established, the Bench held, the court must forthwith order the release of the accused adding that this will be a ground to grant bail even if statutory restrictions on the grant of bail exist.
The Bench reminded judicial magistrates of their duty to ascertain the compliance of Article 22(1) before remanding the accused person to custody. It held that non-compliance of Article 22(1) renders the arrest illegal.
Chaining the accused to the bed in a hospital violated Article 21
The Bench noted another aspect. The petitioner was hospitalized in PGIMS, Rohtak after his arrest. When he was admitted to the hospital, he was handcuffed and chained to the hospital bed. The Bench held that this treatment itself is a violation of the fundamental right of the appellant under Article 21 of the Constitution.
The Bench not only quashed the arrest of the petitioner but directed the State of Haryana to issue guidelines to ensure that the act of handcuffing an accused while he is on a hospital bed and tying him to such a bed is not committed again and that the constitutional safeguards under Article 22 are strictly followed.
Justice Singh in his concurring opinion stated that the requirement of communicating the grounds of arrest in writing is not only to the arrested person but also to the friends, relatives or such other persons as may be disclosed or nominated by the arrested person, so as to make the mandate of Article 22(1) of the Constitution meaningful and effective, failing which, such arrest may be rendered illegal.
