The Supreme Court has held that when an accused is released because the arrest violated the constitutional safeguards under Article 22(1) or Article 22(2) of the Constitution, the investigating agency cannot simply re-arrest the person at its own discretion. Any subsequent attempt to secure custody must follow a judicially supervised procedure.

The Bench of Justice Ujjal Bhuyan observed that  the power to re-arrest should not remain with the same authority that had committed the constitutional violation. Judicial sanction, or what the Court described as judicial imprimatur, is required before such re-arrest can take place. 

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The matter arose from an FIR registered at Mataur Police Station, SAS Nagar, under Sections 64, 65(1) and 351 of the Bharatiya Nyaya Sanhita, 2023, along with Section 6 of the Protection of Children from Sexual Offences Act, 2012.

The appellant was arrested by the police at about 7:54 a.m. on May 17, 2026. He was produced before the Judicial Magistrate on May 18, 2026, at around noon, when the investigating agency sought police remand.

However, the Magistrate found that the appellant had not been supplied the written grounds of arrest. Relying upon the Supreme Court’s ruling in Mihir Rajesh Shah v. State of Maharashtra, the Magistrate held that the failure to furnish the grounds of arrest violated Article 22(1) of the Constitution and the corresponding statutory safeguards. The appellant was consequently directed to be released. 

The record also raised an issue under Article 22(2). The appellant had been arrested on May 17 and produced before the Magistrate on May 18, beyond the constitutionally prescribed period of 24 hours, excluding necessary travel time. 

On the same day as the appellant’s release, the Station House Officer moved another application seeking custody and remand.

The Additional Chief Judicial Magistrate subsequently dismissed the application on May 22, 2026. The court noted that the prosecution had moved the application without first supplying the grounds of arrest and, importantly, before the appellant had been arrested again. The Magistrate held that custody or remand could be granted only after arrest and could not be granted in the absence of the accused. 

The appellant thereafter approached the Punjab and Haryana High Court seeking, among other reliefs, protection against re-arrest, fresh custody/remand and arrest warrants.

The High Court dismissed the petition on May 29, 2026.

While the High Court accepted that the original arrest had been declared illegal because written grounds of arrest were not supplied, it held that the investigating agency was not completely barred from seeking a subsequent arrest, provided that any subsequent arrest complied with the law.

The High Court also observed that the appellant could pursue appropriate legal remedies concerning the alleged detention beyond 24 hours. It declined to grant blanket immunity against future arrest. 

The matter then reached the Supreme Court.

The Supreme Court explained that Article 22 provides two critical safeguards in ordinary arrests.

Article 22(1) requires a person arrested to be informed, as soon as may be, of the grounds of arrest and protects the right to consult and be defended by a legal practitioner.

Article 22(2) requires an arrested person to be produced before the nearest Magistrate within 24 hours of arrest, excluding the time necessary for the journey to the Magistrate’s court. Detention beyond that period requires the authority of a Magistrate. 

The Court noted that these constitutional protections are reflected in statutory provisions, including Section 47 of the BNSS, corresponding to Section 50 of the Cr.P.C., concerning communication of grounds of arrest, and Section 58 of the BNSS, corresponding to Section 57 of the Cr.P.C., concerning the 24-hour production requirement. 

The Supreme Court relied extensively upon its earlier decisions in Pankaj Bansal, Prabir Purkayastha, Vihaan Kumarand Mihir Rajesh Shah.

The Court reiterated that informing an arrested person of the grounds of arrest is not merely a procedural formality. The information must enable the person to understand why he has been arrested and to effectively consult legal counsel, challenge the arrest or remand and seek bail. 

In Mihir Rajesh Shah, the Court had clarified that, ordinarily, written grounds of arrest must be furnished to the arrested person. In exceptional circumstances where written communication at the time of arrest is impractical, the grounds may initially be conveyed orally, but written grounds must subsequently be supplied within a reasonable time and, in any event, at least two hours before production for remand proceedings. 

If this requirement is not complied with, the arrest becomes illegal and the arrestee is entitled to release. 

The Supreme Court then addressed the central issue in the case.

It held that if an accused has been released because of a violation of Article 22(1) and the investigating agency subsequently believes that custodial interrogation remains necessary, the police cannot simply re-arrest the person on their own.

Instead, the investigating agency must: Furnish the grounds of arrest in writing to the accused; File an application before the concerned Magistrate seeking custody; State the reasons and necessity for the proposed re-arrest; Explain why the grounds of arrest were not supplied at the initial stage; Obtain an endorsement from the immediate superior authority; and have the application considered by the Magistrate in accordance with the principles of natural justice. 

Where an accused has been released because of an Article 22(1) violation, the superior police authority considering a request for re-arrest is required to hand over the investigation to another officer.

The Court further directed that a departmental inquiry should be initiated into the constitutional lapse. If the inquiry results in an adverse finding against the concerned police officials, departmental action would follow, including an entry in the service record of the erring officers. 

The Supreme Court separately considered the consequence of failure to produce an arrested person before a Magistrate within 24 hours.

The Court referred to its earlier ruling in Bhim Singh v. State of Jammu & Kashmir and other authorities dealing with unlawful detention.

It held that the constitutional requirement under Article 22(2) cannot be treated as a mere procedural technicality. Where an accused is detained beyond the constitutionally prescribed period without the requisite judicial authority, the detention becomes unlawful. 

If, after such release, the investigating agency still considers custody necessary, the same basic judicially supervised procedure is to be followed before further custody is sought. The Court additionally noted that, depending on the facts, the High Court may award compensation as a public law remedy for violation of Article 22(2), without preventing the affected person from pursuing a private civil remedy. 

An important aspect of the judgment is the Court’s treatment of the gravity of the allegations.

The State had argued that the allegations were serious and that the seriousness of the offence justified the investigating agency retaining the ability to re-arrest the appellant if custody became necessary.

The Supreme Court, however, emphasized that constitutional safeguards cannot depend upon the nature or gravity of the alleged offence. The Court stated that violation of a constitutional provision must be dealt with strictly and cannot be interpreted restrictively depending on the offence involved. 

At the same time, the Court clarified that it was not expressing any opinion on the merits of the allegations against the appellant.

The Supreme Court also distinguished the present situation from cases involving default bail.

The State had relied upon decisions such as Sanjay Dutt and Rakesh Kumar Paul, where the Court had held that release on default bail does not necessarily prevent subsequent arrest or re-arrest on cogent grounds.

The Supreme Court held that those cases involved a fundamentally different situation. Default bail arises from failure of the investigating agency to complete the investigation and file the chargesheet within the prescribed period.

The present case, by contrast, involved violations of the accused’s fundamental constitutional rights under both Article 22(1) and Article 22(2) at the threshold of arrest. Therefore, the principles governing default bail could not simply be transplanted to the present circumstances. 

The Supreme Court set aside and quashed the Punjab and Haryana High Court’s order dated May 29, 2026, as well as the relevant observations made by the Magistrate on May 18, 2026.

The Court directed that if the respondents considered custodial interrogation necessary, they would have to follow the procedure laid down in Mihir Rajesh Shah and the safeguards prescribed in the present judgment concerning violations of Articles 22(1) and 22(2). 

The Court also ordered that a copy of the judgment be circulated to all Directors General of Police of the States and Union Territories, Registrars General of the High Courts and Directors of State Judicial Academies.

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