No Written Arrest Grounds? Supreme Court Says Arrest Illegal, Officer Must Be Probed
Any proposed re-arrest must receive judicial approval, while further investigation should be entrusted to a different officer, rules the Court.
(By Syed Ali Taher Abedi)
New Delhi, September 21: The Supreme Court has reaffirmed that furnishing the grounds of arrest in writing is a mandatory constitutional safeguard and not a mere procedural formality.
A Bench comprising Justice Ujjal Bhuyan and Justice Atul S. Chandurkar held that an arrest carried out without providing the accused with written grounds is illegal and violates Article 22(1) of the Constitution.
The Court further directed that disciplinary proceedings should be initiated against the police officer responsible for such a breach.
The ruling came while the Court declared illegal the arrest of Jaskaran Jit Singh, a Shiromani Akali Dal-affiliated political functionary, in a case concerning allegations of sexual assault involving a minor.
The Court found that the grounds of arrest had not been furnished to him in writing.
The Bench clarified that a subsequent filing of a chargesheet or an order taking cognisance of the offence cannot retrospectively cure an unconstitutional arrest.
It also stressed that the protection under Article 22(1) applies irrespective of whether the case is registered under the Indian Penal Code or a special statute.
According to the Court, the grounds of arrest must be supplied in writing, in a language understood by the accused, and at the earliest opportunity.
Any violation of this requirement directly affects the legality of the arrest and subsequent detention.
The Court observed that a person released due to an unconstitutional arrest is not being granted bail in the conventional sense, but is instead being freed from illegal detention. Since the safeguard concerns personal liberty, the question of whether the accused suffered demonstrable prejudice does not arise.
Strict Procedure for Re-Arrest
The Supreme Court laid down detailed safeguards for cases in which the investigating agency seeks to re-arrest an accused whose earlier arrest has been declared unlawful.
Before seeking custody again, the investigating agency must:
- Furnish the written grounds of arrest to the accused;
- Move an application before the jurisdictional Magistrate explaining the need for re-arrest and custodial interrogation;
- Explain why the grounds of arrest were not supplied at the initial stage; and
- Obtain the endorsement of the immediate senior police officer.
The Magistrate must then consider the application expeditiously preferably within a week and pass an order in accordance with the principles of natural justice.
Re-arrest can take place only if the Magistrate is satisfied that the grounds could not genuinely be supplied at the initial stage and that further custody is necessary.
Accountability Within the Police Department
The Court made it clear that the officer responsible for the constitutional violation cannot continue to control the investigation or determine whether the accused should be taken into custody again.
Once the matter is placed before the superior authority, the further investigation must be transferred to another officer.
The superior authority must also order a departmental inquiry against the officer who failed to provide the written grounds of arrest.
If the inquiry returns adverse findings, the officer may face departmental action, with the outcome recorded in the officer’s service book.
Emphasising the enduring importance of constitutional safeguards, the Court directed that a copy of its judgment be circulated to the Directors General of Police of all States and Union Territories.
The judgment serves as a strong reminder that the power to arrest, though vital to criminal investigation, remains subject to constitutional discipline.
Personal liberty cannot be curtailed behind closed doors, and the law demands that every arrested person be told, clearly and in writing, why that liberty has been taken away.
