This Article pertaining to CONSTITUTION IS SUPREME – Re-arrest procedure explained by the Hon’ble Supreme Court in the case of Jaskaran Jeet Singh Deol v. State of Punjab – 2026 INSC 1022 is Authored by A. Rangadham, Superintendent (AR), Customs, Excise and Service Tax Appellate Tribunal (CESTAT), Hyderabad.

In the case cited above the Hon’ble Supreme Court was seized of the question – can an accused who has suffered breach of both clauses (1) and (2) of Article 22 of the Constitution of India be re-arrested for the same offence? If so, under what circumstances, in what manner and the procedure that is required to be followed in such a case.

In the instant case the accused was arrested under POCSO and was produced before the Magistrate beyond the 24-hour time limit. The Magistrate noticed that no written grounds of arrest were served on the accused. Therefore, the Magistrate directed the accused to be released immediately since his arrest was illegal and issued directions to take appropriate action against the officer at fault.

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The SHO re-arrested the accused after furnishing the grounds of arrest. The Magistrate dismissed the remand application as not maintainable. The accused moved an application before the High Court under Sec. 482 Cr.P.C.  The Hon’ble High Court dismissed the petition of the accused and held that the investigating agency is not precluded from seeking his rearrest, provided that the subsequent arrest made is strictly in accordance with the procedure established by law. Regarding the illegal detention beyond 24 hours before production before the Magistrate, the Hon’ble High Court directed that appropriate legal action may be initiated against the defaulting police officials.

The Supreme Court held that –

• Art. 22(1) is a negative prohibition. It provides that no person who is arrested shall be detained in custody without being informed of the grounds for such arrest and he shall not be denied the right to consult and to be defended by a legal practitioner of his choice.
• Art. 22(2) provides that every person who is arrested and detained in custody shall be produced before the nearest magistrate within a period of 24 hours of such arrest.
• Sec. 50(1) of Cr.P.C mandates that every police officer arresting any person without warrant, to forthwith communicate to the person arrested, the full particulars of the offense for which he has been arrested. As per 50(2) where a police officer arrests any person without warrant, he shall inform the person arrested that he is entitled to be released on bail, for which he may arrange his sureties.
• Sec. 57 of Cr.P.C prohibits a police officer from detaining in custody a person arrested without warrant for a period exceeding 24 hours.
• In the case of Pankaj Bansal, the Hon’ble Supreme Court held that it would be essential for the arrested person to be aware of the grounds on which he was arrested. This will allow him to plead and prove before the special courts that there are grounds to believe that he is not guilty of the offense alleged so as to avail the relief of bail. Communication of the grounds of arrest as mandated by Article 22 of the Constitution is meant to serve this higher purpose and must be given due importance.
• In Prabir Purkayastha, the Hon’ble Supreme Court held that the right to life and personal liberty is the most sacrosanct fundamental right guaranteed under Articles 20, 21 and 22 of the Constitution of India. Any attempt to encroach upon the fundamental rights guaranteed, have to be dealt with strictly.
• In Vihaan Kumar,  the Hon’ble Supreme Court held that 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. The mode of conveying information of the grounds must be meaningful so as to serve the objects of Articles 21 and 22. If the requirement of Article 22 is not followed while arresting a person, it will also violate the fundamental right of liberty granted under Article 21, rendering such arrest illegal.
• In Mihir Rajesh Shah, the Hon’ble Supreme Court held that the written grounds of arrest must be communicated to the person not later than two hours prior to production of the arrestee before the magistrate for remand proceedings. If the arresting authority desires to re-arrest such a person., he has to move an application for custody before the magistrate furnishing the reasons and necessity for the same. It will also be necessary to supply the grounds of arrest in writing to such person, setting forth the explanation for non-supply thereof at the first place. The magistrates shall decide the same expeditiously, and preferably within a week, by adhering to the principles of natural justice.
• In Sri Darshan, the Hon’ble Supreme Court held that mere absence of written grounds does not render the arrest illegal unless it results in demonstrable prejudice or denial of a fair opportunity to defend. It was further held that procedural lapses in furnishing grounds of arrest do not ipso facto render custody illegal or entitles the accused to bail.

The Hon’ble Supreme Court summed up the matter on the core principles qua Art. 22(1) as follows – 

• Copy of written grounds of arrest has to be furnished to the arrested person without exception.
• Accused has a fundamental and statutory right to be informed about the grounds of his arrest in writing, and a copy of such written grounds of arrest has to be furnished to the arrested person without exception at the earliest. Failure to do so would vitiate the process of arrest and remand.
• Any breach or noncompliance would entail immediate release of the arrested person because such arrest is unconstitutional.
• Article 22 applies across the spectrum, including offenses under the IPC or under special enactments.
• Where there is violation of the Constitution, question of prejudice or demonstratable prejudice does not arise. It is not correct to say that procedure lapses in furnishing grounds of arrest do not ipso facto render custody illegal or entitles the accused to bail.
• When an accused is released for violation of his fundamental rights under Article 22, he is not enlarged on bail but is released from illegal and unconstitutional detention.

On the aspect of re-arrest, the Hon’ble Supreme Court held that – 

•  The investigating agency has to file an application before the magistrate concerned for custody, mentioning therein the reasons for re-arrest of the accused and the necessity for the same.
• The application should contain the explanation for non-supply of the grounds of arrest to the accused at the first instance.
• This application can be moved only after furnishing the grounds of arrest to the accused.
• The application must have the endorsement of the immediate superior authority.
• The magistrate shall decide the application expeditiously, preferably within a week of its submission, by adhering to the principles of natural justice.
• It is only when the magistrate is satisfied that for bona fide reasons, the grounds of arrest could not be furnished to the arrestee at the first instance, he may pass an order permitting the investigation agency to re-arrest the accused.
• The superior authority, when presented with the application, seeking his endorsement for custody of the accused who had been released for violation of Article 22(1) shall hand over the investigation of the case to another officer, further directing departmental inquiry for such a serious lapse.

Regarding the application of Art. 22(2), the Hon’ble Supreme Court held that continuation of the accused in custody without being produced before the nearest magistrate within the stipulated time frame of 24 hours is completely illegal and infringes the fundamental rights of the accused and Article 22 of the Constitution of India. Violation of Article 22 infringes the fundamental right to liberty granted under Article 21 also. The arrest made would be rendered otiose.

It was concluded that the interpretation of Constitution cannot be left to imponderables. The violation of the Constitution or a constitutional provision cannot be countenanced. It has to be dealt with strictly. It is not dependent on the nature or gravity of the offense. It cannot be interpreted in a restrictive manner. The gravity of the evil to the community resulting from antisocial activities can never furnish an adequate reason for invading the personal liberty of a citizen except in accordance with the procedure established by the Constitution and the laws.

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