Arrest is illegal if grounds of arrest is not informed to the accused : Supreme Court

In a significant ruling, the Supreme Court on Friday held that it is the fundamental right of every person arrested to be informed of the grounds of arrest as soon as possible [Vihaan Kumar vs State of Haryana].

Failure by the investigating officer to do the same will amount to a violation of Article 22(1) of the Constitution thereby, rendering the arrest invalid.

"The requirement of informing a person arrested of grounds of arrest is a mandatory requirement of Article 22(1). Therefore, non-compliance with the requirements of Article 22(1) vitiates the arrest of the accused. Hence, further orders passed by a criminal court of remand are also vitiated," the Court's February 7 ruling said.

Such violation will entitle the accused to bail despite any statutory restrictions, the Court underscored.

"When a violation of Article 22(1) is established, it is the duty of the court to forthwith order the release of the accused. That will be a ground to grant bail even if statutory restrictions on the grant of bail exist. Statutory restrictions do not affect the power of the court to grant bail when the violation of Articles 21 and 22 of the Constitution is established."

Justice Abhay S Oka, Justice N Kotiswar Singh

Justice Abhay S Oka, Justice N Kotiswar Singh

It is the fundamental right of every person arrested to be informed of the grounds of arrest as soon as possible.

Supreme Court

Pertinently, the Bench of Justices Abhay S Oka and N Kotishwar Singh added that when an arrested person is produced before a judicial magistrate for remand, it is the duty of the magistrate to ascertain whether compliance with Article 22(1) has been made.

If there is non-compliance with Article 22(1), the arrest would be illegal and the person cannot be remanded, the Court ruled.

However, even if such arrest is illegal, it will not vitiate the investigation, chargesheet and trial, the Bench clarified.

At the same time, filing of a chargesheet will not validate a violation of Article 22(1) of the Constitution, the Court added, nor would a trial court's order of cognisance (judicial notice of a case) in such a scenario.

"Filing a charge sheet and order of cognizance will not validate an arrest which is per se unconstitutional, being violative of Articles 21 and 22(1) of the Constitution of India. We cannot tinker with the most important safeguards provided under Article 22," said the apex court.

Statutory restrictions do not affect power to grant bail when the violation of Articles 21 and 22 of the Constitution is established.

Supreme Court

The Bench laid down the following to safeguard the rights under Article 22 in the lead opinion authored by Justice Oka:

- The requirement of informing a person arrested of grounds of arrest is a mandatory requirement of Article 22(1);

- Information on the grounds of arrest must be provided to the arrested person in such a manner that sufficient knowledge of the basic facts constituting the grounds is imparted and communicated to the arrested person effectively, in the language which he understands;

- When arrested accused alleges non-compliance with the requirements of Article 22(1), the burden will always be on the Investigating Officer/ Agency to prove compliance with the requirements of Article 22(1);

- Non-compliance with Article 22(1) will be a violation of the fundamental rights of the accused guaranteed by the said Article. Moreover, it will amount to a violation of the right to personal liberty guaranteed by Article 21 of the Constitution. Therefore, non-compliance with the requirements of Article 22(1) vitiates the arrest of the accused. Hence, further orders passed by a criminal court of remand are also vitiated;

- Non-compliance with the above will not vitiate the investigation, charge sheet and trial. But, at the same time, filing of chargesheet will not validate a breach of constitutional mandate under Article 22(1);

- When an arrested person is produced before a Judicial Magistrate for remand, it is the duty of the Magistrate to ascertain whether compliance with Article 22(1) and other mandatory safeguards has been made;

- When a violation of Article 22(1) is established, it is the duty of the court to forthwith order the release of the accused. That will be a ground to grant bail even if statutory restrictions on the grant of bail exist. The statutory restrictions do not affect the power of the court to grant bail when the violation of Articles 21 and 22 of the Constitution is established.

In a separate concurring opinion, Justice Singh added that the grounds of arrest must be given not only to the accused, but to his friends, relatives or a person nominated by the arrested person as well.

This requirement is laid down in Section 50A of the CrPC (obligation of person making arrest to inform about the arrest to inform about the arrest, etc., to a nominated person), he observed.

This is to make the mandate under Article 22 (1) meaningful, so that the persons so informed of the grounds for arrest can take legal steps to challenge the arrest and secure the arrestee's liberty.

Failure to do so may render the arrest illegal, he added.