On arrests declared ‘illegal’, Supreme Court’s new guardrails for re-arrest

“Any breach or non-compliance would entail immediate release of the arrested person because such arrest is unconstitutional. We cannot tinker with the most important safeguards provided under Article 22,” the court said.

The bench also directed high courts across the country to grant “suitable mandatory compensation” when arrests violate procedural safeguards.

Detailing the procedure for seeking re-arrests in such cases, the bench said the accused should first be provided written grounds of arrest, and an application should be filed before a magistrate explaining why a re-arrest was necessary and why the grounds were not given the first time. It also said that the investigation should be assigned to another officer, and a departmental inquiry should be ordered into the previous arrest.

The court said the power to re-arrest 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 said the magistrate can allow re-arrest only when 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 that the accused needs to be re-arrested.

“To rule out any foul play or collusion, such an application must have the endorsement of the immediate superior authority. This is because the immediate superior authority should know that the concerned officer has committed an unbecoming act of violating a constitutional provision for which necessary remedial steps will have to be taken,” the bench said in its 69-page ruling, adding that the magistrate must decide such an application within a week.

The superior officer giving endorsement “shall hand over the investigation of the case to another officer, further directing departmental enquiry for such a serious lapse.” An adverse finding “would entail departmental action with entry in the service book of such officer(s),” it said.

“Article 22(1) applies across the spectrum including offences under the BNS or under special enactments. It is not statute specific. It is not a mere formality or a matter of procedure. It is a mandatory binding constitutional safeguard. When there is violation of the Constitution, question of prejudice or demonstrable prejudice does not arise. The safeguards adumbrated in Article 22(1) are not mere procedural safeguards; these are fundamental principles which are required to be followed in the event liberty of a person is sought to be curtailed,” the court said.

Article 22(1) provides for the accused to be informed about the grounds of arrest.

The bench was hearing an appeal filed by an accused in a POCSO case in Punjab in May. The accused was released by the local magistrate on the ground that he was not provided the reasons for his arrest, but the magistrate allowed the police to arrest him again, complying with procedural safeguards. The police filed a fresh application the same day seeking his arrest, which was, however, dismissed by another magistrate.

The accused then moved the Punjab and Haryana High Court, challenging the magistrate’s decision to allow the police to arrest him again. After the HC, on May 29, allowed the police to arrest him again, the accused moved the Supreme Court.

The Punjab government had argued that given the serious nature of the allegations, police “should not face fetters” while arresting an accused. To this, the SC said that the violation of the Constitution “cannot be countenanced”.

“It has to be dealt with strictly. It is not dependent on the nature or gravity of the offence, encompassing within its sweep all offences,” the bench said.

Over the past three years, the SC has raised the bar for the state, reiterating that communicating the grounds of arrest is mandatory. In Pankaj Bansal v Union of India, the SC, in October 2023, held that all arrests under the stringent PMLA require that a written copy of the grounds of arrest be furnished to the arrested person “as a matter of course and without exception.”

A later order in Ram Kishor Arora v Directorate of Enforcement (December 2023) diluted the rule, holding that such grounds need not always be supplied in writing, and treated the Pankaj Bansal ruling as prospective in nature.

However, in May 2024, in Prabir Purkayastha v State (NCT of Delhi), the SC reaffirmed that an arrested person must be provided the grounds of arrest in writing at the earliest. The position was finally settled in Mihir Rajesh Shah v State of Maharashtra (November 2025), where the court held that written grounds of arrest must be furnished across all offences and statutes, in a language the arrestee understands, and directed that failure to do so would render both the arrest and subsequent remand illegal. Monday’s judgment builds on that line of reasoning.