In an important judgment with a bearing on personal liberty, the Supreme Court ruled Thursday that the requirement of furnishing grounds of arrest to a person placed under arrest will apply even to offences under the Indian Penal Code and Bharatiya Nyaya Sanhita (BNS) and not just offences under special statutes like the Prevention of Money Laundering Act, 2002 (PMLA) and Unlawful Activities (Prevention) Act, 1967 (UAPA).
The bench of Chief Justice of India B R Gavai and A G Masih said, “The constitutional mandate of informing the arrestee the grounds of arrest is mandatory in all offences under all statutes including offences under IPC 1860 (now BNS 2023).”
“The requirement of informing the arrested person the grounds of arrest, in the light of and under Article 22 (1) (Protection against arrest and detention in certain cases) of the Constitution of India, is not a mere formality but a mandatory binding constitutional safeguard which has been included in Part III of the Constitution under the head of Fundamental Rights,” the bench said, adding that “the grounds of arrest must be communicated in writing to the arrestee in the language he/she understands… within a reasonable time and in any case at least two hours prior to production of the arrestee for remand proceedings before the magistrate”.
Failure to comply would render the arrest and subsequent remand illegal and the person will be at liberty to be set free, it said.
The ruling came on appeals arising out of the arrest of the accused in the BMW hit-and-run case in Worli in July 2024. The accused contended that their arrest was illegal since the grounds of arrest were not supplied to them. The Bombay High Court upheld their arrest following which they approached the Supreme Court.
Granting bail to the accused, the Supreme Court decided not to go into the merits of the case but only to examine the questions of law including the necessity of furnishing the grounds of arrest to the accused in IPC/BNS offences.
Answering the questions, the bench said, “The genesis of informing the grounds of arrest to a person flows from the Constitutional safeguard provided in Article 21 of the Constitution of India, which reads ‘No person shall be deprived of his life or personal liberty except according to procedure established by law’.” Article 22 (1) “further strengthens” this “by providing that a person arrested must be informed of the grounds of his arrest at the earliest and should not be detained without informing him of such grounds”.
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The bench said “the arrest of an individual invariably impacts not only the person arrested himself, but also the persons associated with him, i.e. family, friends, relatives, etc., affecting their psychological balance and overall social well-being… 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”.
It said “the salutary purpose of informing the grounds of arrest is to enable the person to understand the basis of his arrest and engage legal counsel to challenge his arrest, remand or seek bail and/or avail of any other remedy as may be available to him/her under law” and “early access to legal counsel becomes a quintessential object to ensure that the personal liberty of the arrested person is protected”.
It said the “manifestation of the constitutional safeguard sought to be achieved in Article 22… is that 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.”
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It said the language of Article 22(1) “shows that the intent of the Constitution makers… was not to create any exceptional circumstances, instead it reads as ‘No person who is arrested…’.”
The bench ruled that “mere communication of the grounds in a language not understood by the person arrested does not fulfil the constitutional mandate under Article 22… The failure to supply such grounds in a language understood by the arrestee renders the constitutional safeguards illusory and infringes the personal liberty of the person as guaranteed under Article 21 and 22”.
It said “the police officer/person making any arrest shall make an entry of the fact as to who has been informed of such an arrest in a book to be kept in the police station” and the magistrate has to ensure that this has been complied with when the arrested person is produced for remand purposes.
The ruling acknowledged that “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” and “a rigid insistence upon informing of written ground(s) of arrest before or at the time of effecting the arrest or immediately thereafter may result into police officer not being able to discharge their duty and responsibility efficiently and effectively”.
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It said “the constitutional safeguards, valuable as they are, cannot be interpreted in a manner so as to allow it to metamorphose into a procedural impediment that handicaps the law enforcing agencies in due lawful discharge of their duties.”
“In cases 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 someone is caught red-handed), 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.”
