Supreme Court: Re-Arrest After Article 22(1) Breach Needs Magisterial Sanction

THE SUPREME COURT has ruled that once an arrest of an accused is quashed for want of non-supply of grounds of arrest, the accused could only be re-arrested with the permission of the magistrate.

A Bench of Justices Ujjal Bhuyan and Atul S. Chandurkar handed down the ruling on a petition challenging the order of the Punjab and Haryana High Court dismissing the petition filed by the appellant by holding that the investigating agency cannot be prohibited from seeking warrants of arrest against the appellant or from re-arresting him or seeking his custody.

The Bench observed that once there is a breach of Article 22(1) of the Constitution, the power to re-arrest the accused must not be left to the discretion of the very same authority who had violated the said provision of the Constitution.

“It must have the judicial imprimatur. It is only when the Magistrate is satisfied that for bona fide reasons the grounds of arrest could not be furnished to the arrestee at the first instance but furnished subsequent to his release and on further satisfaction that the accused needs to be re-arrested, he may pass an order permitting the investigating agency to rearrest”, the Bench ruled.

In this case, an FIR was registered by an informant against the appellant on May 13, 2026, before the Mataur Police Station in the district of SAS Nagar (Punjab), alleging that his wife had left his company and started living with the accused-appellant from about October-November 2024, taking with her both his daughters, including the alleged victim girl, being his elder daughter.

On May 9, 2026, the elder daughter (‘alleged victim’) came back to the company of the informant. It was stated that she narrated to the informant physical and sexual abuse committed on her by the accused-appellant from October 25-26, 2024 onwards, off and on. 

The FIR was registered under Sections 64, 65(1) and 351 of the Bharatiya Nyaya Sanhita, 2023 (‘BNS’) read with Section 6 of the Protection of Children from Sexual Offences Act, 2012, as amended (‘POCSO Act’).

The Magistrate’s Findings

On May 17, 2026, at around 07:54 a.m., the appellant was arrested by the police, whereafter he was produced before the Judicial Magistrate In-Charge (Duty) on the next day, i.e., on May 18, 2026, at around noon for obtaining police remand for one day. The Judicial Magistrate noted that though the appellant was arrested on May 17, 2026, and produced before her on May 18, 2026, no written grounds of arrest were provided to the appellant.

After referring to the judgment of the Supreme Court in Mihir Rajesh Shah vs. State of Maharashtra (2025), the Magistrate held that the investigating agency had miserably failed to comply with the mandate of law of providing written grounds of arrest. Therefore, appropriate action should be taken against the officers at fault.

For non-furnishing of written grounds of arrest, which was in violation of Article 22(1) of the Constitution read with Section 50(1) of the Code of Criminal Procedure, 1973 (‘Cr.P.C.’) and Section 47 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (‘BNSS’), the appellant was directed to be released immediately since his arrest was rendered illegal. However, the Magistrate clarified that if the investigating agency finds it necessary, they can move an application for remand or custody, if required, along with the reasons and the necessity for the same after supplying the grounds of arrest in writing to the appellant, setting forth the explanation for non-supply of grounds.

The Magistrate further clarified that her order would not preclude the investigating agency from proceeding in accordance with law and in strict compliance with the statutory and constitutional mandate.

On the same day itself, i.e., May 18, 2026, the same Station House Officer Rupinder Singh, who had caused the arrest of the appellant without furnishing the grounds of arrest and who had moved the earlier remand application, again moved a fresh application for custody and remand of the accused-appellant.

This time the subsequent custody/remand application was assigned to the Additional Chief Judicial Magistrate, who passed an order dated May 22, 2026, dismissing the said application as being not maintainable at that stage. The Additional Chief Judicial Magistrate noted that the said application was moved by the prosecution without supplying the grounds of arrest to the accused and before the arrest of the accused.

Referring to the decision of the Supreme Court in Mihir Rajesh Shah, the Magistrate observed that such an application could be moved only after supplying the grounds of arrest to the accused. According to him, in the present case, grounds of arrest have not been provided to the accused till then. Moreover, custody and remand of the accused can only be granted by the court after the arrest of the accused and it cannot be granted in the absence of the accused.