In a landmark judgment strengthening the protection of personal liberty, the Supreme Court (SC) has ruled that every person arrested for any offence under the Indian Penal Code (IPC), the Bharatiya Nyaya Sanhita (BNS) 2023, or any other law, must be provided with the written grounds of arrest in a language they understand.
A bench of chief justice BR Gavai and justice Augustine George Masih held that failure to comply with this constitutional mandate would render both the arrest and subsequent remand proceedings illegal.
“The obligation to inform the arrestee of the grounds of arrest in writing flows directly from Article 22(1) of the Constitution,” the bench says. “If such information is not furnished, the arrest would amount to a violation of the fundamental rights guaranteed under Articles 21 and 22(1), thereby rendering it illegal.”
The SC clarified that the right to be told the reasons for one’s arrest is a mandatory and binding constitutional safeguard included in Part III of the Constitution.
“The requirement of informing the arrested person of the grounds of arrest… is not a mere formality but a mandatory, binding constitutional safeguard,” the judgment stated. “If a person is not informed of the grounds of arrest as soon as may be, it would curtail his or her right to life and personal liberty.”
Until now, courts had enforced the written-grounds requirement mainly in arrests under special laws such as the Prevention of Money Laundering Act (PMLA) or the Unlawful Activities (Prevention) Act (UAPA). The SC has now extended it to all arrests under all laws, including those under the IPC 1860 and its replacement, the BNS 2023.
Key directions
Summarising its conclusions, the bench issued clear directions to all law-enforcement authorities:
• “The constitutional mandate of informing the arrestee (of) the grounds of arrest is mandatory in all offences under all statutes, including offences under the IPC 1860 (now BNS 2023).”
• “The grounds of arrest must be communicated in writing to the arrestee in the language he or she understands.”
• “Where immediate written communication is not possible, the arresting officer may inform the grounds orally, but “the said grounds shall be supplied 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.”
• “In case of non-compliance with the above, the arrest and subsequent remand would be rendered illegal, and the person will be at liberty to be set free.”
The case arose from the arrest of a petitioner accused in a high-profile hit-and-run incident in Mumbai. While the Bombay High Court (HC) had acknowledged procedural lapses, it declined to declare the arrest illegal, citing the gravity of the offence and the accused’s alleged attempts to evade custody.
Challenging that order, the petitioner argued before the SC that he had never been furnished with the written grounds of arrest, violating his constitutional rights.
The apex court agreed, declaring the arrest illegal but limited its finding to the legal question rather than the merits of the criminal case. The petitioner, who was on interim bail, was granted permanent relief.
Authoring the judgment, justice Masih reiterated that providing the grounds of arrest in writing is a substantive constitutional right, not a procedural nicety.
“It enables the arrested person to understand the accusation against him or her, obtain legal advice, challenge police custody, and apply for bail,” the SC says. “Non-supply of written grounds deprives the person of a fair opportunity to defend their liberty.”
The court warned that compliance could not be left to discretion.
“The duty to inform is not contingent upon the seriousness of the offence or the subjective satisfaction of the police officer,” the bench observed. “It is an unconditional constitutional requirement.”
Acknowledging the possibility of 'exceptional circumstances', such as when a crime is committed in the presence of a police officer, the court says oral communication may suffice at the time of arrest. However, this must be followed strictly by a written record.
“Later, a written copy of the 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 before the magistrate,” the judgment directed.
The bench clarified that the absence of written grounds at the moment of arrest would not automatically invalidate the arrest, provided compliance occurs within this narrow timeframe.
“Non-supply of grounds of arrest in writing to the arrestee prior to or immediately after arrest would not vitiate such arrest… provided the said grounds are supplied in writing within a reasonable time and at least two hours before production for remand,” the court held.
Calling the safeguard an 'indispensable element of personal liberty', the SC ordered that copies of the judgment be circulated to all HCs and state governments to ensure uniform compliance.
