Supreme Court: Informing Grounds Of Arrest Mandatory For All Offences; Must Be Communicated In Writing Atleast 2 Hrs Prior To Production Of Arrestee Before Magistrate

The Supreme Court has held that informing the grounds of arrest to the arrestee is mandatory in all offences including the ones under the Indian Penal Code, 1860 (IPC)/Bharatiya Nyaya Sanhita, 2023 (BNS) and that the said grounds shall be communicated in writing at least two hours prior to the production of the arrestee before the Magistrate.

The Court was deciding Criminal Appeals in which the main issue was the alleged violation of the accused’s right under Article 22(1) of the Constitution and Section 50 of the Code of Criminal Procedure, 1973 (CrPC)/ Section 47 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS).

The two-Judge Bench comprising Chief Justice of India (CJI) B.R. Gavai and Justice Augustine George Masih held as follows –

i) The constitutional mandate of informing the arrestee the grounds of arrest is mandatory in all offences under all statutes including offences under IPC (now BNS).

ii) The grounds of arrest must be communicated in writing to the arrestee in the language he/she understands.

iii) 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.

iv) 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.

Senior Advocate Vikram Chaudhri appeared for the Appellant, while AOR Aaditya Aniruddha Pande appeared for the Respondents. Advocate Shri Singh was appointed as the Amicus Curiae.

Factual Background

In the lead case, in July 2024, a BMW car allegedly 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 ensnared 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.

Consequently, an FIR was registered under the relevant provisions of the BNS and the Motor Vehicles Act, 1999 (MV Act). Arrests soon followed, with co-accused being taken into custody and the Appellant-accused being apprehended. 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. It was alleged that the grounds of arrest were not furnished in writing to the accused. The challenge against the legality of arrest was ultimately considered by the Bombay High Court, which upheld its validity. Hence, the accused approached the Apex Court.

Court’s Observations

The Supreme Court after hearing the contentions of the counsel, observed, “The impacts of arrest are multidimensional and are not only limited to societal impact but also extend to the physical and mental health of the person. Mental health issues like depression due to custodial confinement can be aggravated by inadequate and overcrowded conditions prevalent in prisons. Such conditions severely impinge upon the fundamental rights of the arrested person and curtail his dignity and personal liberty.”

The Court noted that the mandate contained in Article 22(1) of the Constitution is unambiguous and clear in nature and it provides that the arrested person must be informed of the grounds of arrest as soon as they can be.

“… the arrested person must be well equipped with the information not only about his arrest but the reasons and grounds thereof prior to his production before the magistrate so as to enable him to effectively defend himself and oppose the police and judicial custody and even press for bail. 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”, it said.

The Court elucidated that the objective of the constitutional mandate is to place the person in a position to comprehend the basis of the allegations levelled against him and it can only be realised when the grounds are furnished in a language understood by the person, thereby enabling him to exercise his rights effectively.

“From the catena of decisions discussed above, 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”, it remarked.

The Court emphasised that the mode of communicating the grounds of arrest must be such that it effectively serves the intended purpose as envisioned under the Constitution 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. The mode of communication ought to be such that it must achieve the intended purpose of the constitutional safeguard. The objective of the constitutional mandate would not be fulfilled by mere reading out the grounds to the arrested person, such an approach would be antithesis to the purpose of Article 22(1). 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”, it further observed.

The Court was of the opinion 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.

“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”, it clarified.

The Court, therefore, held that 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”, it added.

The Court also said that the above indicated 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. Any shorter interval may render such preparation illusory, thereby resulting in non-compliance of the constitutional and statutory mandate. The two-hour threshold before production for remand thus strikes a judicious balance between safeguarding the arrestee’s constitutional rights under Article 22(1) and preserving the operational continuity of criminal investigations”, it noted.

Conclusion

Moreover, the Court held that if the abovesaid schedule for supplying the grounds of arrest in writing is not adhered to, the arrest will be rendered illegal entitling the release of the arrestee.

“On such release, an application for remand or custody, if required, will be moved along with the reasons and necessity for the same, after the supply of the grounds of arrest in writing setting forth the explanation for non-supply thereof within the above stipulated schedule. On receipt of such an application, the magistrate shall decide the same expeditiously and preferably within a week of submission thereof by adhering to the principles of natural justice”, it added.

The Court concluded by saying that such clarity on obligation would avoid uncertainty in the administration of criminal justice and the ends of fairness and legal discipline therefore demand that this procedure as affirmed above shall govern arrests henceforth.

Accordingly, the Apex Court disposed of the Appeals and directed the Registry to send one copy of the Judgment to all the Registrar Generals of the High Courts and the Chief Secretaries of all the States and Union Territories.

Cause Title- Mihir Rajesh Shah v. State of Maharashtra and Another (Neutral Citation: 2025 INSC 1288)

Appearance:

Appellant: Senior Advocate Vikram Chaudhri, AORs Siddharth Sharma, Vishesh Vijay Kalra, Nikhil Jain, Ashish Pandey, Advocates Ishika Chauhan, Aishwarya, Smriti Churiwal, Akshada Pasi, Sonia Sharma, Jaiveer Kant, Rishi Sehgal, Muskaan Khurana, Divya Jain, Karl P. Rustomkhan, Vaibhav Jagtap, and Shubham Saxena.

Respondents: AOR Aaditya Aniruddha Pande, Advocates Rukhmini Bobde, Sourav Singh, Siddharth Dharmadhikari, Shrirang B. Varma, Amlaan Kumar, Jatin Dhamija, and Vinayak Aren.

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