Giving grounds of arrest mandatory, not formality: Supreme Court
The Supreme Court ruled that providing grounds of arrest is a mandatory constitutional right, not a formality. Failure to do so violates Articles 21 and 22(1), rendering the arrest illegal and cannot be justified by later judicial remand.
Published on: 11 February 2025, 05:36 am
LAST week, a two-judge Bench of the Supreme Court comprising Justices Abhay S. Oka and N. Kotiswar Singh handed down an important decision regarding the furnishing of grounds of arrest to accused.
The Bench observed that informing the detained person of the grounds of arrest is not a formality but a mandatory constitutional requirement.It emphasized that the grounds of arrest must be provided to the arrested person in such a manner as to sufficiently convey knowledge of the basic facts constituting the grounds to the arrested person effectively, in the language that they understand.
Facts of the case
The facts of the case are as follows. One Vihaan Kumar was arrested in connection with a first information report (FIR) lodged on March 25, 2023, for the offences under Sections 409,420, 467, 468 and 471 read with Section 120-B of the Indian Penal Code (‘IPC’).
According to Kumar, he was arrested on June 10, 2024, at about 10.30 a.m. at his office premises in Gurugram, Haryana. On June 11, 2024, at 3:30 p.m, he was produced before the Judicial Magistrate(in charge). Since Kumar was not produced before the magistrate within 24 hours of his arrest, he alleged the violation of Article 22(2) of the Constitution, which mandates that, "every person who is arrested and detained in custody shall be produced before the nearest magistrate within a period of twenty-four hours of such arrest excluding the time necessary for the journey from the place of arrest to the court of the magistrate and no such person shall be detained in custody beyond the said period without the authority of a magistrate."
A similar requirement is incorporated in Section 57 of the Code of Criminal Procedure (CrPC), 1973. The State of Haryana, however, claimed that Kumar was arrested on June 10, 2024, at 6:00 p.m, and thus Article 22(2) was complied with.
Kumar further alleged that neither in the remand report nor in the order dated June 11, 2024, passed by the Magistrate, the time of arrest was mentioned.
Informing an arrested person of the grounds of arrest is not a formality but a fundamental constitutional right under Article 22(1).
Decision of the Court :
Conditions of Section 41 (ba) have to be satisfied
The Bench, in deciding the legality of the arrest of Kumar, heavily relied upon two decisions of the Supreme Court, Pankaj Bansal vs Union of India, and Prabir Purkayastha v. State (NCT of Delhi). In both these cases, the Court had dealt with the issue of supply of grounds of arrest to the arrestee, and had quashed the arrest on the facts of those cases.
The Bench first examined statutory provisions regarding arrest. Section 41(1) of the CrPC details when police 'may' arrest a person without a warrant. The corresponding proviso in the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) is Section 35. Since in Kumar, the commission of a cognizable offence is punishable with imprisonment for a term that may extend to more than seven years had been alleged, clause (ba) of Section 41(a) was attracted.
This implies that a police officer can arrest a person without an order of a Magistrate or warrant subject to the following conditions:
a) Credible information has been received against the person that he has committed a cognizable offence punishable with imprisonment for more than seven years and
b) The police officer has reason to believe on the basis of the information received that such a person has committed the offence.
The Bench opined that a police officers cannot casually arrest a person against whom the commission of an offence punishable with imprisonment for more than seven years is alleged. They can arrest the accused provided the twin conditions in clause (ba) are satisfied.