Background

The Supreme Court of India indicated that it might refer the legal question of whether investigating agencies are mandatorily required to provide the 'grounds of arrest' in writing to an accused, to a larger Bench. The issue arose after the Meghalaya High Court granted bail due to an incorrect BNS provision in the arrest memo.

Key Issue

The State argued that a clerical error should not invalidate an arrest if the accused was informed of the reasons. However, the Supreme Court, citing conflicting precedents, indicated that the issue may require consideration by a larger Bench to resolve the inconsistency in judicial interpretation.

Conflicting Judgements on Written 'Grounds of Arrest'

Pankaj Bansal vs Union of India (2023)

  • The Supreme Court ruled that the Enforcement Directorate (ED) must mandatorily supply the grounds of arrest to an accused in writing in cases under the Prevention of Money Laundering Act (PMLA), 2002
  • Held that oral communication is susceptible to factual disputes

Prabir Purkayastha Case (2024)

  • Extended this protection to the Unlawful Activities (Prevention) Act, 1967
  • Stated that the right to receive written grounds of arrest is a fundamental constitutional safeguard
  • Held that since Articles 22(1) and 22(5) use identical language regarding communication of grounds, the principles governing preventive detention under Article 22(5) also apply to arrest under Article 22(1)

Mihir Rajesh Shah vs State of Maharashtra (November 2025)

  • Held that grounds of arrest must be provided in writing to the accused in all cases (including ordinary crimes under BNS/IPC)
  • This was to give full effect to constitutional mandates

Dr Rajinder Rajan vs Union of India (April 2026)

  • The Supreme Court upheld the requirement to furnish the grounds of arrest to the accused

Vihaan Kumar vs State of Haryana (February 2025)

  • A coordinate Bench ruled that while communicating the grounds of arrest is an indispensable safeguard, furnishing them in writing may not be "practicable" in every single case
  • Held that as long as the grounds are effectively communicated orally, the arrest is not necessarily vitiated
  • This created a conflict with the other rulings

Constitutional Safeguards Against Arbitrary Arrest

Article 22(1)

  • Guarantees that no arrested person shall be detained without being informed, as soon as possible, of the grounds of arrest
  • Ensures the right to consult and be defended by a legal practitioner of their choice

Article 22(5)

  • Similar provision for preventive detention cases
  • Uses identical language regarding communication of grounds

Article 21

  • The safeguard is rooted in Article 21, as knowledge of the grounds of arrest is essential for an accused to seek bail and effectively exercise the right to legal defence

Statutory Provisions under BNSS, 2023

Section 47 of BNSS, 2023

  • Mandates the immediate communication of the full particulars of the offence to a person arrested without a warrant

Section 48 of BNSS, 2023

  • Requires the person making the arrest to inform a relative, friend, or any other person nominated by the arrested person about:
  • The arrest
  • The place where the arrested person is being held

Significance

The conflicting rulings have created legal uncertainty regarding a fundamental procedural safeguard against arbitrary arrest. A larger Bench ruling would:

  • Settle the law on whether written grounds are mandatory in all cases
  • Provide clarity on the practical implementation of constitutional rights
  • Ensure uniformity in judicial approach across different statutes

The safeguard is crucial because knowledge of grounds of arrest is essential for:

  • Seeking bail
  • Effectively exercising the right to legal defence
  • Preventing arbitrary detention
  • Ensuring compliance with due process under Article 21