IF ARRESTED PERSON IS NOT INFORMED ABOUT THE GROUNDS OF ARREST THEN ARREST GETS VITIATED AND HE IS ENTITLED TO GET BAIL: SUPREME COURT

“Innocent until proven Guilty” – Indian Criminal Jurisprudence is based on this statement ensuring that no wrong is done to a person who is innocent. Despite the fact that an individual is accused of committing an offence, such person still has Human Rights / Fundamental Rights guaranteed under the Indian Constitution which cannot be violated. These Rights include Right to remain Silent which is guaranteed under Article 20(3) of the Indian Constitution, Right to be informed about the Grounds of Arrest guaranteed under Article 22(1), Right to be taken to Magistrate without Delay guaranteed under Article 22(2), Right to consult Legal Practitioner, etc.

In consonance with the Indian Constitution, earlier CRPC 1973 (Code of Criminal Procedure) had Right to be informed about the Grounds of Arrest enshrined under Section 50(1) which provided that “Every police officer or other person arresting any person without warrant shall forthwith communicate to him full particulars of the offence for which he is arrested or other grounds for such arrest.”

This Right to be informed about the Grounds of Arrest is also retained in section 47 of Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) which has now replaced CRPC which is reproduced below:

Section 47 (BNSS) - Person arrested to be informed of grounds of arrest and of right to bail.

(1) Every police officer or other person arresting any person without warrant shall forthwith communicate to him full particulars of the offence for which he is arrested or other grounds for such arrest.

(2) Where a police officer arrests without warrant any person other than a person accused of a non-bailable offence, he shall inform the person arrested that he is entitled to be released on bail and that he may arrange for sureties on his behalf.

 Recently Hon’ble Supreme Court of India in the case of Vihaan Kumar v. State of Haryana decided on 07.02.2025 arising out of SLP (Crl.) No. 13320 of 2024, has directed immediate release of the appellant on the ground that it was proved that he was not informed of the Grounds of his arrest, which constitutes violation of his Fundamental Rights and he was entitled to Bail. In this case, it came on record that while informing the wife of appellant, Police informed his wife about the Grounds of Arrest, whereas the person himself was not informed as such. Hon’ble Supreme Court held that:

Communication of the grounds of arrest to the wife of the arrestee is no compliance with the mandate of Article 22(1).

Hon’ble Supreme Court culled out PRINCIPLES regarding the said Right to be informed of Grounds of arrest, which are as under:

21. Therefore, we conclude:

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

b) The information of 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. The mode and method of communication must be such that the object of the constitutional safeguard is achieved;

c) 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);

d) 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. Needless to add that it will not vitiate the investigation, charge sheet and trial. But, at the same time, filing of charge-sheet will not validate a breach of constitutional mandate under Article 22(1);

 e) 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; and

f) 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.

Extending this Right further, Hon’ble Delhi High Court in the case of Pranav Kuckreja v. State (NCT of Delhi) 2024 SCC Online Del 9549 decision dated 28.02.2025, has held that it is mandatory that grounds of arrest must be communicated in writing to the arrested individual expeditiously. Further, interpreting the expression “forthwith” used in Section 50 CrPC, it was observed that it implies that ―Grounds of such Arrest have to be communicated at the earliest. The Delhi High Court even suggested that a column be incorporated in the format of an arrest memo requiring the Investigating Officer / Arresting Officer to mention the grounds of arrest at the time of arrest itself and ensure that such grounds are communicated to the arrestee forthwith at the time of issuing arrest memo.