The Supreme Court has laid down that investigating agencies cannot re-arrest an accused on their own after release for violation of Article 22(1) or 22(2) of the Constitution. Rather, they must move a custody application before the Magistrate with written grounds of arrest, reasons for re-arrest, and superior authority endorsement. The Apex Court explained that breach of Article 22(1) (non-supply of written grounds of arrest) and Article 22(2) (non-production before Magistrate within 24 hours) renders the arrest illegal and unconstitutional, and the release of the arrestee is not a grant of bail but a release from illegal and unconstitutional detention.
The Court said that re-arrest after such release is permissible but cannot be effected by the investigating agency on its own executive discretion, and judicial sanction of the concerned Magistrate is mandatory before any re-arrest can be carried out. Further, the investigating agency must move a custody application before the Magistrate furnishing the written grounds of arrest, the reasons and necessity for re-arrest, and the explanation for non-supply of grounds at the first instance, with the endorsement of the immediate superior authority.
The Magistrate is required to decide such custody application expeditiously and preferably within a week, adhering to the principles of natural justice, and the superior authority must simultaneously hand over investigation to another officer and initiate departmental enquiry against the erring police officers, added the Court, while clarifying that in cases of violation of Article 22(2), the High Court may, depending on facts, award compensation as a public law remedy while preserving the liberty of the affected person to pursue civil remedies against the State and erring officials.
A Two-Judge Bench comprising Justice Ujjal Bhuyan and Justice Atul S. Chandurkar observed that Article 22(1) confers a fundamental right on every arrestee to be informed of the grounds of arrest as soon as may be, and that this mandate is not a mere formality but a mandatory binding constitutional safeguard applicable across all statutes including IPC/BNS and special enactments like POCSO, PMLA and UAP. The Court noted that any infringement of Article 22(1) vitiates the process of arrest and remand, and that subsequent filing of chargesheet or order of cognizance cannot validate an arrest which is per se unconstitutional.
On Article 22(2), the Court observed that the constitutional command to produce every arrested person before the nearest Magistrate within 24 hours (excluding travel time) admits of only two exceptions, enemy aliens and persons arrested under preventive detention laws, and that any detention beyond 24 hours without Magistrate’s authority is peremptorily prohibited. The Court emphasised that once there is a breach of Article 22(1) or 22(2), the power to re-arrest cannot be left to the discretion of the very same authority that violated the Constitution, and that judicial imprimatur is essential before any re-arrest can be effected.
Briefly, the case arose out of an FIR registered at Mataur Police Station, SAS Nagar (Punjab) against the appellant Jaskaran Jeet Singh Deol under Sections 64, 65(1) and 351 of the Bharatiya Nyaya Sanhita, 2023 read with Section 6 of the POCSO Act, 2012, on allegations of physical and sexual abuse of a minor stepdaughter from October-November 2024 onwards. The appellant was arrested on May 17, 2026, from his Ludhiana residence and produced before the Judicial Magistrate on May 18, 2026, beyond the 24-hour constitutional window, without any written grounds of arrest having been communicated to him.
The Judicial Magistrate declared the arrest illegal for non-supply of written grounds of arrest in violation of Article 22(1) read with Section 50(1) CrPC/Section 47 BNSS, and directed immediate release of the appellant, while clarifying that the investigating agency was not precluded from proceeding in accordance with law. On the same day, the same SHO moved a fresh remand application, which the Additional Chief Judicial Magistrate dismissed as not maintainable since grounds of arrest were still not supplied to the accused.
The appellant then moved the Punjab and Haryana High Court under Section 482 CrPC seeking a blanket restraint on re-arrest, which was dismissed, holding that the investigating agency could not be prohibited from seeking warrants of arrest or re-arresting the appellant. The matter travelled to the Supreme Court, which had granted interim protection from arrest since July 27, 2026, and directed departmental action against the erring officers, resulting in suspension of ASI Gurtej Singh and transfer of SHO Rupinder Singh to Police Lines.
