The Delhi High Court has held that adding POCSO offences to the FIR cannot justify a re-arrest that bypasses the Mihir Rajesh Shah v. State of Maharashtra [(2026) 1 SCC 500] and Jaskaran Jeet Singh Deol v. State of Punjab, 2026 INSC 1022] safeguards, and directs forthwith release of the petitioner on the same terms as his earlier release. The Court also held that re-arrest of an accused who was earlier released for breach of Article 22(1) of the Constitution is not a fresh arrest at the discretion of the Investigating Officer, and it must carry a judicial imprimatur from the concerned Magistrate and the endorsement of the immediate superior authority.
The Investigating Officer must, before seeking re-arrest, file an application before the Magistrate stating the reasons for re-arrest, the necessity for custodial interrogation, and an explanation for the non-supply of grounds of arrest at the first instance, and the Magistrate must decide the application expeditiously, preferably within a week, after adhering to the principles of natural justice, added the Court.
The High Court said that the superior authority, on being approached for endorsement, is required to hand over the investigation to another officer and direct a departmental enquiry, with adverse findings entailing departmental action and entry in the service book of the erring officers. The mere addition of offences under the Protection of Children from Sexual Offences Act, 2012 to the FIR does not, by itself, justify a re-arrest that bypasses the constitutional and statutory safeguards; the safeguards under Article 22(1) apply across the spectrum, including IPC offences and special enactments, and are not statute-specific.
An accused released for violation of Article 22(1) is released from illegal and unconstitutional detention and not enlarged on bail, and subsequent filing of a chargesheet or order of cognizance will not validate such an arrest, and any breach of Article 22(1) entails immediate release because the safeguards are mandatory constitutional safeguards and not mere procedural formalities, concluded the High Court.
The Division Bench comprising Justice Navin Chawla and Justice Arun Bhardwaj reiterated that the grounds of arrest must be in writing and in a language understood by the accused, a copy of such written grounds must be furnished to the arrested person as a matter of course and without exception at the earliest, and any breach of Article 22(1) of the Constitution is not a mere procedural lapse but a violation of a sacrosanct fundamental right which vitiates the arrest and remand and entails immediate release.
The Court further reiterated that subsequent filing of a chargesheet or order of cognizance will not validate such an arrest, and Article 22(1) applies across the spectrum, including offences under the IPC and special enactments. The re-arrest procedure requires the investigating agency to file an application before the concerned Magistrate containing the reasons for re-arrest, the necessity therefor, and an explanation for the non-supply of grounds of arrest at the first instance, with the endorsement of the immediate superior authority, and the Magistrate must decide the application expeditiously, preferably within a week, after adhering to the principles of natural justice.
The superior authority, on being presented with such an application, is required to hand over the investigation to another officer and direct a departmental enquiry, with adverse findings entailing departmental action and entry in the service book of the erring officers, added the Court.
Briefly, the petitioner, moved the Delhi High Court by way of a Habeas Corpus petition under Article 226 of the Constitution read with Section 528 of the Bharatiya Nagarik Suraksha Sanhita, 2023, contending that he was being held in illegal custody in connection with FIR registered at Police Station New Usmanpur, North-East Delhi. He was arrested on July 20, 2026, but was produced before the Judicial Magistrate First Class, Karkardooma Courts, Delhi, only on July 23, 2026.
The JMFC noted that the grounds of arrest supplied to the petitioner did not bear any date or time of service, nor did they contain any details of the incident for which he was arrested, thereby falling foul of the mandate in Mihir Rajesh Shah v. State of Maharashtra [(2026) 1 SCC 500]. The petitioner was accordingly directed to be released on furnishing a bail bond of Rs. 10,000/- with one surety of the like amount. The petitioner was, however, re-arrested on Aug 21, 2026, without following the procedure prescribed in Mihir Rajesh Shah. His challenge to the re-arrest was rejected by the Additional Sessions Judge, and on the very same date he was remanded to police custody for two days.
