New Delhi: In a landmark decision significantly strengthening the constitutional safeguards for personal liberty, the Supreme Court of India on Thursday held that the grounds of arrest must be communicated in writing to an accused in all cases, including those under the Bharatiya Nyaya Sanhita, 2023 (BNS) (formerly the Indian Penal Code, 1860).
Setting a new, mandatory procedural safeguard, a bench comprising Chief Justice of India B.R. Gavai and Justice Augustine George Masih ruled that any failure to provide these written grounds will render the arrest and subsequent remand illegal, entitling the arrested person to be set free.
The Court, in its judgment in Mihir Rajesh Shah v. State of Maharashtra, addressed the practical challenges of police work by creating a clear, time-bound rule. It held that in "exceptional circumstances" where providing written grounds at the moment of arrest is impractical, the arresting officer must do so orally, but must follow up with a written copy at least two hours before the accused is produced before a magistrate for their first remand.
This judgment effectively extends the principle laid down in cases like Pankaj Bansal (under the PMLA) to all criminal offences, grounding the right in the universal mandate of Article 22(1) of the Constitution, which is not statute-specific.
The Factual Backdrop: The Mihir Shah Case
The ruling stemmed from a tragic hit-and-run case. The appellant, Mihir Rajesh Shah, was accused of driving a BMW at high speed, hitting a scooter, and dragging the complainant's wife, who became ensnared in the car, leading to her death.
Shah was apprehended, and his remand was contested on the grounds that he was not furnished with the grounds of his arrest in writing, a violation of Article 22(1) of the Constitution and Section 47 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) (formerly Section 50 of the CrPC, 1973).
The Bombay High Court acknowledged this "procedural lapse" but upheld the arrest, reasoning that the appellant was "consciously aware" of the gravity of the offence and the substantial evidence against him. This decision was challenged before the Supreme Court, which decided to settle the overarching questions of law involved.
The Core Legal Questions
The Supreme Court formulated two key questions for consideration:
- Whether it is necessary to furnish written grounds of arrest in every case, including those under the BNS (formerly IPC)?
- Whether an arrest would be vitiated if, due to "exceptional exigencies," it's not possible to furnish these grounds immediately?
The Court's Comprehensive Analysis
The bench delivered a detailed analysis, weaving together constitutional principles, statutory mandates, and judicial precedent to arrive at its conclusion.
1. The Constitutional Foundation: Article 21 and 22(1)
The Court began by re-emphasizing that the right to be informed of the grounds of arrest flows from the fundamental rights to life and personal liberty under Article 21 and the specific protections in Article 22(1).
"The mandate contained in Article 22(1) of the Constitution of India is unambiguous and clear," the bench wrote. It described this right not as a "mere formality" but as a "mandatory binding constitutional safeguard."
The "salutary purpose" of this right, the Court explained, is to enable the arrested person to understand the basis of their arrest and immediately seek legal counsel to challenge the arrest, oppose remand, or seek bail.
2. Reconciling Precedents: Pankaj Bansal and Beyond
The appellant heavily relied on the 2023 judgment in Pankaj Bansal v. Union of India, where the Court had mandated written grounds of arrest under the special PMLA statute. The State, in opposition, argued that Pankaj Bansal was limited to special acts and didn't apply to IPC/BNS offences, where oral communication was sufficient.
The Supreme Court rejected this narrow interpretation. It affirmed that the principles in Pankaj Bansal and Prabir Purkayastha (which dealt with the UAPA) are not confined to special laws. The Court held that the constitutional obligation under Article 22 is "not statute-specific."
"This Court has made it explicit that the constitutional obligation under Article 22 is not statute-specific and it is grounded in fundamental right of life and personal liberty under Article 21 of the Constitution of India, therefore making it applicable to all offences including those under the IPC 1860 (now BNS 2023)."
3. Why 'Oral' Communication is Not Enough
The Court meticulously dismantled the argument that merely reading out the grounds is sufficient. It observed that a person who has just been arrested "would not be in a calm and collected frame of mind" and may be "utterly incapable of remembering" the contents.
Such an approach, the bench noted, would render the constitutional protection "nugatory" and "antithesis to the purpose of Article 22(1)." It also pointed out the practical benefit of a written document: it avoids factual disputes between the arrestee and the police, which can "jeopardize the integrity of the arrest process."
Furthermore, citing the Constitution Bench in Harikisan (supra), the Court held that the grounds must be in a language the arrestee understands, a requirement that "can only be realized" when the grounds are furnished in writing.
4. Balancing Rights with Practical Policing: The 'Two-Hour' Rule
The Court's most significant contribution in this judgment is the creation of a practical, time-bound framework that respects both individual rights and the realities of law enforcement.
The bench acknowledged that a rigid rule of "writing before arrest" might be impractical in all situations. It gave the example of an officer witnessing a murder in flagrante delicto (in the very act). In such "exceptional circumstances," a rigid insistence on written grounds might "handicap" the officer.
To solve this, the Court created a two-step process:
- General Rule: In most cases, especially those based on documentary evidence (like economic offences) or where the accused is already present at a police station (e.g., responding to a notice), the written grounds must be supplied at the time of arrest.
- Exceptional Circumstances: In cases like in flagrante delicto offences, where immediate written compliance is impractical, the officer can:
- (a) Orally convey the grounds at the time of arrest.
- (b) Mandatorily follow this up with a written copy of the grounds, to be served on the arrestee within a "reasonable time."
Crucially, the Court defined this "reasonable time" with a hard deadline: "...and in no event later than two hours prior to production of the arrestee before the magistrate for remand proceedings."
The bench explained this "two-hour threshold" is grounded in "functional necessity." It ensures the arrestee's counsel has "adequate time to scrutinize the basis of arrest and gather relevant material to defend the arrestee proficiently and capably while opposing the remand."
The Four Binding Directions
The Supreme Court crystallized its ruling into four clear, binding directions for all police forces and authorities in India:
- Mandatory for All: The constitutional mandate of informing the arrestee of the grounds of arrest is mandatory in all offences under all statutes, including the BNS 2023 (formerly IPC 1860).
- Must Be in Writing: The grounds of arrest must be communicated in writing to the arrestee in the language he/she understands.
- The Exception & Deadline: In cases where the arresting officer cannot provide written grounds on or soon after arrest, it must be done orally. However, the said grounds must be communicated in writing within a reasonable time, and in any case, at least two hours prior to the arrestee's production for remand before the magistrate.
- Consequence of Non-Compliance: In case of non-compliance with the above, the arrest and subsequent remand would be rendered illegal, and the person will be at liberty to be set free.
The Court directed that this judgment be sent to the Registrar Generals of all High Courts and the Chief Secretaries of all States and Union Territories to ensure its "diligent" implementation.
While the Court settled these questions of law, it disposed of the main appeal (Mihir Shah) as it had only issued notice to clarify the legal position. In connected appeals, it ordered that the ad-interim bail granted to the appellants shall continue.
JUDGEMENT LINK : https://api.sci.gov.in/supremecourt/2024/56321/56321_2024_9_1502_65444_Judgement_06-Nov-2025.pdf