Arrest Illegal If Reasons Not Informed; When Article 22(1) Is Violated, Court Must Grant Bail Despite Statutory Restrictions: SC
It is definitely most heart thrilling to learn that while upholding the legal right of the accused to be informed of the grounds of his arrest which is also a fundamental right, the Supreme Court in a most remarkable, robust, rational, reassuring and recent judgment titled Vihaan Kumar vs The State of Haryana And Anr in Criminal Appeal arising out of Special Leave Petition (Crl.) No. 13320 of 2024 and cited in Neutral Citation No.: 2025 INSC 162 and so also in 2025 LiveLaw (SC) 169 in the exercise of its criminal appellate jurisdiction that was pronounced as recently as on February 7, 2025 has minced just no words to hold in no uncertain terms that informing an arrested individual of the grounds for their arrest is a fundamental right under Article 22(1) of the Constitution. It was underscored by the top court that this information must be conveyed clearly and effectively. What was also underscored by the Court was that it emphasized the Magistrate’s duty to ensure compliance with Article 22(1) during remand noting that any violation could warrant the person’s release or justify the granting of bail, even in cases with statutory restrictions.
At the very outset, this learned, laudable, landmark, logical and latest judgment authored by Hon’ble Mr Justice Abhay S Oka for a Bench of the Apex Court comprising of himself and Hon’ble Mr Justice Nongmeikapam Kotiswar Singh sets the ball in motion by first and foremost putting forth in para 1 that, “Amongst other issues, the main issue canvassed by the appellant in this appeal is the violation of the appellant’s right under Article 22(1) of the Constitution of India (for short ‘the Constitution’) as the appellant was not informed of the grounds for his arrest.”
To put things in perspective, the Bench envisages in para 2 while dwelling on the factual aspect that, “A reference to a few factual aspects would be necessary. The challenge in this appeal is to the judgment and order dated 30th August 2024 passed by the learned Single Judge of Punjab and Haryana High Court. The appellant was arrested in connection with first information report no.121 of 2023 dated 25th March 2023 registered for the offences under Sections 409, 420, 467, 468 and 471 read with Section 120-B of the Indian Penal Code (for short, ‘IPC’). According to the appellant’s case, he was arrested on 10th June 2024 at about 10.30 a.m. at his office premises on the 3rd-5th floor of HUDA City Centre, Gurugram, Haryana. He was taken to DLF Police Station, Section 29, Gurugram. He was allegedly produced before the learned Judicial Magistrate (in charge) at Gurgaon on 11th June 2024 at 3.30 p.m. Therefore, there was a violation of Article 22(2) of the Constitution and Section 57 of the Code of Criminal Procedure Code, 1973 (for short, ‘CrPC’). The allegation is that neither in the remand report nor in the order dated 11th June 2024 passed by the learned Magistrate was the time of arrest mentioned. The FIR was registered at the instance of the 2nd respondent. We may note here that, according to the case of the 1st respondent, the appellant was arrested on 10th June 2024 at 6.00 p.m. Therefore, compliance with the requirement of Article 22(2) was made.”
Do note, the Bench notes in para 3 that, “There is another very serious factual aspect. The order dated 4th October 2024 passed by this Court records that after the appellant was arrested, he was hospitalised in PGIMS, Rohtak. The learned counsel appearing for the appellant produced photographs which showed that while he was admitted to the hospital, he was handcuffed and chained to the hospital bed. Therefore, a notice was issued on 4th October 2024 to the Medical Superintendent of PGIMS, calling upon him to file an affidavit stating whether the appellant was handcuffed and chained to the hospital bed. The order dated 21st October 2024 records the admission of the Medical Superintendent of PGIMS that when the appellant was admitted to the hospital, he was handcuffed and chained to the bed. On this aspect, we may note that an affidavit was filed on 24th October 2024 by Shri Abhimanyu, HPS, Assistant Commissioner of Police, EOW I and II, Gurugram, Haryana. The affidavit states that the officials who were deployed to escort the appellant to PGIMS have been suspended, and a departmental inquiry was ordered against them by the Deputy Commissioner of Police on 23rd October 2024.”
Quite significantly, the Bench propounds in para 12 stating that, “This Court held that the language used in Articles 22(1) and 22(5) regarding communication of the grounds is identical, and therefore, this Court held that interpretation of Article 22(5) made by the Constitution Bench in the case of Harikisan v. State of Maharashtra 1962 SCC, shall ipso facto apply to Article 22(1) of the Constitution of India insofar as the requirement to communicate the ground of arrest is concerned. We may also note here that in paragraph 21, in the case of Prabir Purkayastha v State (NCT of Delhi) (2024) 8 SCC 254, this Court also dealt with the effect of violation of Article 22(1) by holding that any infringement of this fundamental right would vitiate the process of arrest and remand. Paragraph 21 reads thus:
“21. The right to be informed about the grounds of arrest flows from Article 22(1) of the Constitution of India and any infringement of this fundamental right would vitiate the process of arrest and remand. Mere fact that a charge-sheet has been filed in the matter, would not validate the illegality and the unconstitutionality committed at the time of arresting the accused and the grant of initial police custody remand to the accused.” (emphasis added).””
Most significantly, the Bench encapsulates in para 14 what constitutes the cornerstone of this notable judgment postulating that, “Thus, the requirement of 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. If the grounds of arrest are not informed as soon as may be after the arrest, it would amount to a violation of the fundamental right of the arrestee guaranteed under Article 22(1). It will also amount to depriving the arrestee of his liberty. The reason is that, as provided in Article 21, no person can be deprived of his liberty except in accordance with the procedure established by law. The procedure established by law also includes what is provided in Article 22(1). Therefore, 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.”
Be it noted, the Bench notes in para 15 that, “We have already referred to what is held in paragraphs 42 and 43 of the decision in the case of Pankaj Bansal v Union of India (2024) 7 SCC 576. This Court has suggested that the proper and ideal course of communicating the grounds of arrest is to provide grounds of arrest in writing. Obviously, before a police officer communicates the grounds of arrest, the grounds of arrest have to be formulated. Therefore, there is no harm if the grounds of arrest are communicated in writing. Although there is no requirement to communicate the grounds of arrest in writing, what is stated in paragraphs 42 and 43 of the decision in the case of Pankaj Bansal v Union of India (2024) 7 SCC 576 are suggestions that merit consideration. We are aware that in every case, it may not be practicable to implement what is suggested. If the course, as suggested, is followed, the controversy about the non-compliance will not arise at all. The police have to balance the rights of a person arrested with the interests of the society. Therefore, the police should always scrupulously comply with the requirements of Article 22.”
Most forthrightly, the Bench expounds in para 16 holding that, “An attempt was made by learned senior counsel appearing for 1st respondent to argue that after his arrest, the appellant was repeatedly remanded to custody, and now a chargesheet has been filed. His submission is that now, the custody of the appellant is pursuant to the order taking cognizance passed on the charge sheet. Accepting such arguments, with great respect to the learned senior counsel, will 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.”
It would be instructive to note that the Bench notes in para 20 that, “When an arrested person is produced before a Judicial Magistrate for remand, it is the duty of the Magistrate to ascertain whether compliance with Article 22(1) has been made. The reason is that due to non-compliance, the arrest is rendered illegal; therefore, the arrestee cannot be remanded after the arrest is rendered illegal. It is the obligation of all the Courts to uphold the fundamental rights.”
Most remarkably, the Bench propounds in para 31 holding that, “The learned Single Judge, unfortunately, has 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. Once a violation of a fundamental right under Article 22(1) was alleged, it was the duty of the High Court to go into the said contention and decide in one way or the other. When a violation of Article 22(1) is alleged with respect to grounds of arrest, there can be possible two contentions raised: (a) that the arrested person was not informed of the grounds of arrest, or (b) purported information of grounds of arrest does not contain any ground of arrest. As far as the first contention is concerned, the person who is arrested can discharge his burden by simply alleging that grounds of arrest were not informed to him. If such an allegation is made in the pleadings, the entire burden is on the arresting agency or the State to satisfy the court that effective compliance was made with the requirement of Article 22(1). Therefore, the view taken by the High Court is completely erroneous.
Finally, we see that the Bench then concludes by holding in para 33 that, “Hence, the appeal is allowed, and we pass the following order:
a) The arrest of the appellant shown on 10th June 2024 in connection with FIR no.121 of 2023 dated 25th March 2023 registered at Police Station DLF, Sector-29, Gurugram stands vitiated;
b) Therefore, the appellant shall be forthwith released and set at liberty;
c) We clarify that the finding of this Court that the arrest of the appellant stands vitiated will not affect the merits of the chargesheet and the pending case;
d) We direct the appellant to regularly and punctually attend the trial court unless his presence is exempted, and cooperate with the trial court for early disposal of the trial. We direct the appellant to furnish a bond in accordance with Section 91 of the BNSS to the satisfaction of the Trial Court within a period of two weeks from his release;
e) The State of Haryana shall issue guidelines/departmental instructions to the police (i) to ensure that the act of handcuffing an accused while he is on a hospital bed and tying him to the hospital bed is not committed again. (ii) to ensure that the constitutional safeguards under Article 22 are strictly followed. If necessary, the State Government shall amend the existing Rules/guidelines; and
f) A copy of the judgment shall be forwarded to the Home Secretary of the State of Haryana.”
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