The power of arrest constitutes the most formidable instrument in the state’s legal arsenal. This represents the conflict between systemic state power and an individual’s fundamental right to personal liberty. For decades, the Indian judiciary has navigated the complex, dual obligation of ensuring robust law enforcement while protecting individual liberties. This article is an attempt to explain to you the evolution of one such complexity: the grounds of arrest.

The genesis of informing the grounds of arrest to a person flows from the constitutional safeguard provided in Article 21 of the Constitution, which reads: “No person shall be deprived of his life or personal liberty except according to procedure established by law.” The expression “personal liberty” has been given a wide meaning through various judicial pronouncements. One of which is that personal liberty includes procedural safeguards from the abuse of power by the state agencies and scrutiny of the actions of the state. Article 22 of the Constitution further strengthens the protection of personal liberty of a person by providing that a person arrested must be informed of the grounds of his arrest at the earliest and should not be detained without informing him of such grounds.

Article 22(1) of the Indian Constitution

Individuals detained under Indian law have fundamental protection against illegal arrest through Article 22(1) of the Indian Constitution. All arrested persons must receive both their arrest reasons as well as legal defense support from an attorney they select. Under this provision, the state authority maintains its natural justice principles while stopping the misuse of government power.

Pankaj Bansal v. Union of India

Pankaj Bansal and his father Basant Bansal, promoters of M3M Group, were arrested by the Enforcement Directorate (ED) under Section 19(1) of the Prevention of Money Laundering Act (PMLA), 2002, for money laundering offenses. The Supreme Court ruled the Enforcement Directorate’s (ED) arrest of Pankaj Bansal and Basant Bansal under Section 19(1) PMLA illegal due to failure to provide written grounds of arrest. ED verbally informed them but did not furnish recorded reasons.

The Supreme Court has time and again stressed on fulfilling the requirement of “communication” of the grounds of arrest to the detenu. There was a conundrum as to whether grounds of arrest have to just be “informed” to the accused orally or the authorities are bound to furnish the written copy of it. It was settled in this case that it is the duty of the authorities to furnish the written copy of the grounds of arrest to the arrestee.

Judicial Reasoning in Pankaj Bansal

The Court has based its ruling on the basis of following two reasonings:

1. In order to eliminate a constant unending dispute between the arrestee and the investigating officer as to what were the exact grounds of arrest that were communicated.
2. The Constitution mandates conveyance of information to be in such a form that enables the arrested person to seek legal guidance and, thereafter, present a case for release/bail, and it shall not be practical for the arrested person to recall the exact grounds of arrest at a later stage with precision.

The court was of the opinion that the sole purpose of the constitutional and statutory protection under Article 21 and 22 will only be achieved when the authorities furnish the written copy of grounds of arrest, irrespective of their length and detail to the accused, rather than merely reading it out.

Prabir Purkayastha vs. State (2024)

Prabir Purkayastha, NewsClick editor, was arrested under UAPA for alleged foreign funding to spread Chinese propaganda; his remand was quashed for non-supply of written grounds. The ruling clarified uniform application across special statutes like UAPA and PMLA, rejecting agency claims of exemption due to procedural differences.

1. The Core Ruling

In a significant expansion of the ratio in Pankaj Bansal (which was initially limited to PMLA cases), the Supreme Court held that:

• Written Communication is Mandatory: Informing an arrestee of the grounds of arrest “as soon as possible” now necessitates providing them in writing.
• Consequence of Failure: Any arrest made without furnishing written grounds is inherently illegal and cannot be “cured” by a subsequent remand order.
• Constitutional Mandate: This requirement is an extension of Article 22(1), ensuring the accused can effectively consult a legal practitioner and challenge their detention.

2. “Reasons” vs. “Grounds”: A Critical Distinction

The Court clarified a common point of confusion between two legal terms:

Reasons for Arrest: The ‘reasons for arrest’ as indicated in the arrest memo are purely formal parameters, viz., to prevent the accused person from committing any further offence; for proper investigation of the offence; to prevent the accused person from causing the evidence of the offence to disappear or tempering with such evidence in any manner; to prevent the arrested person for making inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to the Investigating Officer. These are formal, statutory parameters as found in Section 35(1)(b)(ii) of the BNSS. These reasons would commonly apply to any person arrested on charge of a crime.

Grounds of Arrest: The ‘grounds of arrest’ must contain all such details in the Investigating Officer’s possession that necessitated the arrest of the accused. Simultaneously, the written grounds of arrest must convey all basic facts to the arrested accused to provide them an opportunity of defending themselves against custodial remand and seeking bail (e.g., specific allegations of involvement in a conspiracy or gang). Thus, the ‘grounds of arrest’ would invariably be personal to the accused and one cannot equate them with the ‘reasons of arrest,’ which are general in nature.

3. Effect

In the case of Ram Kishore Arora v. Enforcement Directorate, a two-Judge Bench of the Supreme Court interpreted the judgment in the case of Pankaj Bansal to be having a prospective effect.

Vihaan Kumar v State of Haryana

In this case, the Supreme Court addressed the critical issue of an arrested person’s right to be informed of the grounds of arrest under Article 22(1) of the Constitution and Section 50 of the CrPC (corresponding section 47 of BNSS). Vihaan Kumar was arrested in connection with a serious criminal case but claimed that he was never informed of the reasons for his arrest. Instead, the police argued that they had informed his wife and relied on entries in the police diary and arrest memo to show compliance.

Ratio Decidendi

The ratio decidendi of this case included the following:

• Communication to the Arrestee is Mandatory: The Supreme Court held that the fundamental right enshrined in Article 22(1) requires the arrestee, personally, to be informed of the grounds. Communicating with a spouse or relative does not suffice.
• Quality and Mode of Communication: Communication must provide sufficient knowledge of the basic facts in a language understood by the accused. The “meaningfulness” of communication is essential—it should allow the accused to effectively exercise legal rights.
• Written Communication Ideal but not Mandatory: While not strictly mandatory, written communication is strongly preferred to prevent later factual disputes.
• Burden of Proof: If the arrestee alleges non-communication, the burden of proof shifts to the Investigating Officer/Agency.
• Non-compliance Vitiates Arrest and Remand: Failure to communicate grounds as mandated renders the arrest and subsequent judicial custody/remand orders illegal, regardless of whether a charge sheet was later filed.
• Magistrate’s Duty: When remanding an accused, Magistrates must ensure compliance with Article 22(1) and related safeguards.

Mihir Rajesh Shah v State of Maharashtra

In this landmark case, the accused was arrested for a hit and run case. He approached the Bombay High Court arguing that the grounds of his arrest were not communicated to him as mandated under Article 22 and Section 47 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS). The Bombay High Court upheld his arrest. On appeal, the Supreme Court stated that it will only look into the validity of his arrest and limited itself to two issues:

1. Whether grounds of arrest must be communicated in every offence under the IPC or BNS?
2. Would an arrest be declared illegal if the grounds are not communicated prior to or immediately after the arrest?

On the first issue, the Court held that there can be no exceptions in communicating the grounds of arrest to an accused. It has to be supplied in a written format, in a language which is understandable to them. If immediate communication is not possible, it must be completed within a reasonable period of time.

On the second issue, the Court held that an arrest is not illegal if the grounds are not communicated to an accused immediately after an arrest. A written copy of the grounds should be supplied within a reasonable time and not less than two hours before the accused’s appearance before a magistrate. 

The court further held that failure to provide the written grounds of arrest within the mandated schedule renders the arrest illegal and requires the immediate release of the arrestee. Following such a release, the authorities may file a new application for remand or custody, provided they supply the written grounds and include a formal explanation for the initial delay. The magistrate must then decide on this application expeditiously, preferably within one week, while strictly adhering to the principles of natural justice.

Conclusion

The evolution of Indian jurisprudence underscores that providing written grounds of arrest is a non-negotiable constitutional mandate under Article 22(1) to ensure procedural fairness. The judiciary through the aforementioned judgments set a strong precedent for safeguarding personal liberty and procedural fairness in India’s criminal justice system. It has fortified personal liberty against arbitrary state action, making immediate and meaningful communication the cornerstone of a valid arrest.