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Synopsis

The Supreme Court, on February 7, 2025, observed that informing an arrested person of the grounds of arrest is not merely a formality but a mandatory requirement under Article 22(1) of the Constitution.

"Non-compliance with the requirements of Article 22(1) vitiates the arrest of the accused. Hence, further orders passed by a criminal court of remand are also vitiated. Needless to add that it will not vitiate the investigation, charge sheet and trial. But, at the same time, filing of charge sheet will not validate a breach of constitutional mandate under Article 22(1)," a bench of Justices Abhay S Oka and N Kotiswar Singh said.

The apex court, in its judgment, also explained that the information about the arrest is completely different from information about the grounds of arrest.

"Mere information of arrest will not amount to furnishing grounds of arrest," the bench said.

The court said if the mandate of Article 22 is not followed while arresting a person or after arresting a person, it will also violate fundamental right to liberty guaranteed under Article 21, and the arrest will be rendered illegal.

"Once it is held that arrest is unconstitutional due to violation of Article 22(1), the arrest itself is vitiated. Therefore, continued custody of such a person based on orders of remand is also vitiated. Filing a charge sheet and order of cognizance will not validate an arrest which is per se unconstitutional, being violative of Articles 21 and 22(1) of the Constitution of India. We cannot tinker with the most important safeguards provided under Article 22," the bench said.

Court also said the mode and method of communication must be such that the object of the constitutional safeguard is achieved.

Acting on an appeal by one Vihaan Kumar, the apex court found that his arrest, shown on June 10, 2024, was rendered illegal on account of failure to communicate the grounds of arrest to the appellant as mandated by Article 22(1) of the Constitution.

Court ordered forthwith release of the appellant. He was arrested in a case lodged on March 25, 2023, at Gurugram for the offences under Sections 409, 420, 467, 468 and 471 read with Section 120-B of the IPC.

The appellant contended after the arrest, he was not produced before the judicial magistrate within 24 hours. There was a violation of Article 22(2) of the Constitution and Section 57 of the Code of Criminal Procedure Code.

He also claimed after his arrest, he was admitted to the hospital, was handcuffed, and chained to the hospital bed.

His counsel, senior advocate Kapil Sibal, by relying upon decisions of the Supreme Court in the case of Pankaj Bansal Vs Union of India (2024) and Prabir Purkayastha Vs State (NCT of Delhi) (2024), submitted that on the failure of the Haryana police to comply with the mandate of Article 22(1) and Section 50 of CrPC, the arrest of the appellant was illegal.

Senior advocate R Basant, appearing for the Haryana government, submitted that it was not argued that grounds of arrest were not even orally communicated as there is no requirement under Article 22 (1) or in Section 50 of CrPC to communicate the grounds of arrest to the arrestee in writing. He submitted that in the daily diary, an entry was made at 6.10 p.m. on June 10, 2024, noting that the appellant was arrested after informing him of the grounds of arrest.

After holding his arrest as illegal, the bench referred to the shocking treatment given to the appellant by the police. "He was taken to a hospital while he was handcuffed and he was chained to the hospital bed. This itself is a violation of the fundamental right of the appellant under Article 21 of the Constitution of India. The right to live with dignity is a part of the rights guaranteed under Article 21," the bench said.

Court directed the Haryana government to issue guidelines or departmental instructions to the police to ensure that the act of handcuffing an accused while he is in a hospital bed and tying him to the hospital bed is not committed again and to ensure that the constitutional safeguards under Article 22 are strictly followed.

Court pointed out that Clause (1) of Article 22 provides that no person who is arrested shall be detained in custody without being informed, as soon as may be, of the grounds for such arrest. Section 50 of CrPC (Section 47 of the BNSS), states that a person arrested is to be informed of the grounds of arrest and of the right to bail.

"In a given case, even assuming that the case of the police regarding requirements of Article 22(1) of the constitution is to be accepted based on an entry in the case diary, there must be a contemporaneous record, which records what the grounds of arrest were. When an arrestee pleads before a Court that grounds of arrest were not communicated, the burden to prove the compliance of Article 22(1) is on the police," the bench said.

It also said when an arrested person is produced before a judicial magistrate for remand, it is the duty of the magistrate to ascertain whether compliance with Article 22(1) has been made.

"The reason is that due to non-compliance, the arrest is rendered illegal; therefore, the arrestee cannot be remanded after the arrest is rendered illegal. It is the obligation of all the Courts to uphold the fundamental rights," the bench said.

"When a violation of Article 22(1) is established, it is the duty of the court to forthwith order the release of the accused. That will be a ground to grant bail even if statutory restrictions on the grant of bail exist. The statutory restrictions do not affect the power of the court to grant bail when the violation of Articles 21 and 22 of the Constitution is established," the bench said.

In his separate and concurring view, Justice Singh sought to supplement the judgment authored by Justice Oka on behalf of the bench. He said the issue on the requirement of communication of grounds of arrest to the person arrested, as mandated under Article 22(1) of the Constitution of India, which has also been incorporated in the Prevention of Money Laundering Act, 2002 under Section 19 thereof has been succinctly reiterated in this judgment.

Justice Singh held that the requirement of communicating the grounds of arrest in writing is not only to the arrested person but also to the friends, relatives or such other person as may be disclosed or nominated by the arrested person, so as to make the mandate of Article 22(1) of the Constitution meaningful and effective failing which, such arrest may be rendered illegal.

Case Title: Vihaan Kumar Vs State of Haryana & Anr