Courtesy: Mayank Pratap Singh
The right to personal liberty is among the most fundamental guarantees under the Constitution of India. Article 21 of the Constitution of India provides that no person shall be deprived of his life or personal liberty except according to procedure established by law. Article 22(1) supplements this guarantee by conferring upon every arrested person the right to be informed, as soon as may be, of the “grounds of arrest”, and the right to consult and be defended by a legal practitioner of his choice. Article 22(2) further requires that every arrested person be produced before a Magistrate within twenty-four hours of arrest. At the statutory level, Section 47 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (equivalent to Section 50 of the Code of Criminal Procedure) mandates that the arrested person be informed of the full particulars of the offence and the grounds of arrest, and of the right to bail where applicable. Section 187 of the BNSS governs the procedure for remand and casts a duty upon the Magistrate to independently apply mind before authorising custody. These provisions, taken together, constitute the constitutional and statutory framework within which arrests and remands must be effected.
What are “grounds of arrest” and how do they differ from an “Arrest Memo”?
An arrest memo is a document that records the procedural details of the arrest, such as the date, time, place, and the offences alleged, and generally contains the reasons of arrest. It does not, however, explain the specific factual basis upon which the investigating agency formed the view that arrest was necessary in the particular case. Grounds of arrest, on the other hand, must disclose the specific allegations, the material connecting the accused with the offence, and the circumstances that made arrest necessary.
In Anwar Dhebar v. State of Uttar Pradesh (2025:AHC:93236-DB), the petitioner challenged his arrest on the ground that while an arrest memo had been supplied, the actual grounds of arrest had not been communicated. The State contended that the disclosure of the FIR number and the offences alleged was sufficient compliance of Article 22(1). The Allahabad High Court rejected this contention and held that an arrest memo cannot be equated with the communication of grounds of arrest. The Court relied upon the Supreme Court’s decisions in Prabir Purkayastha v. State (NCT of Delhi), (2024) 8 SCC 254, and Mihir Rajesh Shah v. State of Maharashtra, 2025 SCC OnLine SC 2356, and reaffirmed that grounds of arrest must disclose specific allegations and the factual basis justifying the curtailment of the accused’s liberty. Generic references to the FIR or statutory provisions do not satisfy the constitutional requirement.
The consistent thread running through various judgments of the Hon’ble Supreme Court in Pankaj Bansal v. Union of India [(2024) 7 SCC 576], Prabir Purkayastha v. State (NCT of Delhi), (2024) 8 SCC 254, Vihaan Kumar v. State of Haryana [2025 SCC OnLine SC 456, Mihir Rajesh Shah vs. State of Maharashtra & Anr. (2026) 1 SCC 500, and Dr. Rajinder Rajan vs. Union of India & Anr. 2026 (Decided on 01.04.2026 in SLP(Crl) Nos. 3326 and 3327 of 2026) is that the requirement of informing an arrestee of the grounds of arrest is not a technical formality but a substantive, sacrosanct safeguard of personal liberty.
Is written communication of grounds of arrest mandatory in all cases?
Yes, as a general rule. The Supreme Court in Prabir Purkayastha (Supra) held that mere oral communication of the grounds of arrest is insufficient and that the grounds must be furnished in writing at the earliest opportunity. The Court drew upon the constitutional source of the right under Article 22(1) and held that the requirement to furnish written grounds applies to arrests under all criminal statutes, including special laws such as the Unlawful Activities (Prevention) Act, 1967, and is not confined to arrests under the Prevention of Money Laundering Act as the State had sought to contend. The Court also clarified the distinction between “reasons for arrest” and “grounds of arrest”:
- Reasons for arrest are generic considerations such as the need for investigation, prevention of tampering with evidence, or preventing the accused from absconding.
- Grounds of arrest must contain the specific factual basis, the role attributed to the accused, and the circumstances that made arrest necessary in the particular case.
In Mihir Rajesh Shah (Supra), the Supreme Court elaborated further and recognised that there may be exceptional practical situations, such as arrests made during the commission of a crime, violent incidents, or circumstances involving imminent risk of escape, where immediate written communication may not be feasible. In such cases, oral communication of the grounds of arrest is permissible at the time of arrest. However, the Court held that written grounds must nevertheless be supplied within a reasonable time and, in any case, at least two hours before the accused is produced before the Magistrate for remand proceedings.
The position is thus settled that written communication of grounds of arrest is the constitutional norm, and oral communication, where initially unavoidable, does not discharge the obligation but only defers the requirement within a defined time.
Can a subsequent remand cure an illegal arrest?
No. The Allahabad High Court and the Supreme Court have consistently held that an illegal arrest does not become lawful merely because a remand order has subsequently been passed. In Prabir Purkayastha (Supra), the Supreme Court declared the arrest, the remand order, and the High Court judgment upholding the detention all to be unconstitutional, holding that the illegality of an arrest founded on non-compliance with Article 22(1) cannot be cured by subsequent judicial orders. The remand, being consequential to the arrest, stands vitiated along with it.
This principle has direct significance in practice. Where an accused has been arrested without being furnished the written grounds of arrest and has subsequently been remanded to custody, the challenge to the arrest necessarily extends to and encompasses the remand proceedings as well. In Anwar Dhebar, the Allahabad High Court held that any remand order founded upon an unconstitutional arrest is equally vulnerable and cannot be sustained in law, while clarifying that the criminal proceedings themselves would continue and the authorities were at liberty to take fresh action in consonance with constitutional requirements.
Can a remand order passed on a printed proforma be sustained?
No. The Allahabad High Court, in Pawan Singh Thakur (Corpus) and Another v. State of U.P. (2026:AHC:92481-DB), took serious note of the practice of passing remand orders on printed proformas and held such orders to be constitutionally unsustainable. In that case, the remand order dated 2 November 2025 had been passed on a printed proforma without any independent application of judicial mind. The Court held that a Magistrate is required to independently examine the legality of the arrest, the material produced by the investigating agency, and the necessity of granting custody. The mechanical authorisation of remand, without application of mind to the specific facts and circumstances of the case, is a failure of the judicial function that Section 187 of the BNSS casts upon the Magistrate.
The conditions that must be satisfied before a Magistrate authorises remand are as follows:
- The Magistrate must satisfy himself that the arrested person has been informed of the grounds of arrest as required under Article 22(1) and Section 47 of the BNSS.
- The Magistrate must independently examine the material placed before him by the investigating agency.
- The Magistrate must apply his mind to the necessity of granting custody and must not routinely authorise remand.
In Pawan Singh Thakur (Supra), the Hon’ble Allahabad High Court also addressed the question of whether a writ of habeas corpus is maintainable when the Magistrate has authorized the remand. Relying upon the Supreme Court’s decision in Gautam Navlakha v. NIA, the Court held that where a remand order is absolutely illegal or has been passed mechanically without judicial application of mind, the writ of habeas corpus is maintainable notwithstanding the existence of a judicial remand order.
What is the remedy available to a person illegally arrested or remanded?
An aggrieved person whose arrest or remand is in violation of the constitutional safeguards under Articles 21 and 22 of the Constitution of India may approach the Hon’ble Allahabad High Court by means of a Writ Petition under Article 226 of the Constitution of India praying for a writ of Habeas Corpus to produce the corpus detained illegally. Where the person continues to be in custody, the appropriate remedy is a Writ of Habeas Corpus, which the Court may entertain even where a remand order has been passed, provided the illegality is patent. In Pawan Singh Thakur (Supra), the Allahabad High Court allowed the habeas corpus petition, quashed the arrest memo and the remand order, and directed the immediate release of the petitioners. The Court simultaneously granted liberty to the investigating authorities to proceed afresh against the petitioners in accordance with law, making it clear that the quashing of the arrest and remand does not extinguish the underlying criminal proceedings.
It is thus proper for a person aggrieved by an illegal arrest or a mechanically passed remand order to invoke the jurisdiction of the Allahabad High Court under Article 226 of the Constitution of India without delay, as the continuance of custody in violation of constitutional safeguards constitutes an ongoing deprivation of the fundamental right under Article 21 of the Constitution of India.