Written Grounds of Arrest Mandatory, Says Bombay HC While Granting Bail

The Bombay High Court has categorically held that an arrest carried out without furnishing written grounds to the accused is unconstitutional and illegal, as it violates the mandate of Article 22(1) of the Constitution of India and Section 50 of the Code of Criminal Procedure, 1973.

Justice Ashwin D. Bhobe, while granting bail, underscored that compliance with this constitutional safeguard is non-negotiable, and its breach vitiates the arrest irrespective of the gravity or nature of the offence alleged.

The decision came in a bail plea challenging the arrest of an individual accused of orchestrating a fraudulent scheme involving the availment and passing of Input Tax Credit (ITC) worth more than Rs. 20 crore under the Central Goods and Services Tax Act, 2017.

The accused had been arrested by the Directorate General of GST Intelligence (DGGI) on March 12, 2024, under Sections 132(1)(b), 132(1)(c), 132(1)(i) and 132(2), read with Section 132(5) of the Act, which classify the offence as cognizable and non-bailable.

He remained in custody for over a year before approaching the High Court under Section 483 of the Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023, after his earlier bail plea was rejected by the Sessions Court.

The challenge raised by the petitioner was that the arrest memo did not disclose specific grounds of arrest as required by law and that the authorisation to arrest, an internal communication within the DGGI was not addressed to or served upon the accused.

Senior Advocate Sudeep Pasbola, appearing for the applicant, argued that such omissions constituted a direct breach of fundamental rights under Article 22(1) and the statutory safeguards under Section 50 Cr.P.C., rendering the custody unlawful.

The prosecution, represented by Special Public Prosecutors Jitendra Mishra and Saket Ketkar, contended that the accused was aware of the nature of the offence and had acknowledged the arrest memo and authorization in Gujarati.

They maintained that these endorsements indicated compliance with the requirement of informing the accused of the reasons for his arrest.

However, the court rejected these arguments, holding that implied knowledge or oral communication cannot substitute the explicit obligation to provide written grounds.

“The requirement of informing a person arrested of grounds of arrest is a mandatory requirement of Article 22(1)… Non-compliance with Article 22(1) will be a violation of the fundamental rights guaranteed by the said Article and will vitiate the arrest of the accused", Court observed.

It was clarified that written communication of the grounds serves a substantive purpose: it allows the arrested individual to seek legal counsel, challenge the legality of the arrest, and prepare an effective defence. Mere oral explanation or vague references to the offence, particularly in complex economic cases involving voluminous records, fail to meet this constitutional standard.

Court placed strong reliance on recent Supreme Court pronouncements that have elevated the requirement of written grounds from procedural formality to a constitutional necessity; Citing Vihaan Kumar v. State of Haryana, 2025 5 SCC 799, the court reiterated that when an accused alleges non-compliance with Article 22(1), the burden lies squarely on the arresting agency to establish compliance. The judgment also referred to Prabir Purkayastha v. State (NCT of Delhi), 2024 8 SCC 254, which held that communication of grounds must be meaningful and ordinarily in writing, as oral disclosure leaves room for dispute and undermines the purpose of the safeguard.

The court further cited Pankaj Bansal v. Union of India, 2024) 7 SCC 576, where the Top Court emphasized that without knowing the grounds of arrest, an accused cannot effectively plead for bail or rebut the allegations against him.

Similarly, in Directorate of Enforcement v. Subhash Sharma, 2025 SCC OnLine SC 240, the Supreme Court held that if fundamental rights under Articles 21 and 22 are violated during or after arrest, it is the duty of the court to release the accused on bail, even in cases involving statutory restrictions.

Addressing the prosecution’s argument that the applicant had antecedents in a similar case in Gujarat, the court placed reliance on Prabhakar Tewari v. State of U.P., (2020) 11 SCC 648 to reiterate that pendency of other criminal cases cannot override constitutional violations when liberty is at stake.

It further noted the Supreme Court’s observations in Vineet Jain v. Union of India, Criminal Appeal No. 2269 of 2025, which criticized prolonged incarceration in economic offences largely based on documentary evidence.

Court allowed the bail application and directed release on a personal bond of Rs. 1 lakh with two sureties, subject to conditions including surrender of passport, providing contact details, and restrictions on travel outside Maharashtra without prior permission.

Advocate on record: Advocate Mohsin Ghaniwala

Case Title: Ashrafbhai Ibrahimbhai Kalavdiya v. Union of India & Anr.

Date of Judgment: July 18, 2025

Bench: Justice Ashwin D. Bhobe