-
by sayum
25 May 2026 1:46 PM
“Custody Is Legal Only If Arrest Is Lawful – Arrest Memo Must Reflect Mindful Compliance with Law, Not Mechanical Formality”, In a significant judgment strengthening the constitutional right against arbitrary detention, the Allahabad High Court allowed a habeas corpus petition and declared the arrest and judicial remand of a man accused under the Bharatiya Nyaya Sanhita (BNS) illegal, null and void for non-compliance with Article 22(1) of the Constitution and Sections 47 and 48 of the BNSS, 2023.
The Division Bench of Justice Siddharth and Justice Jai Krishna Upadhyay held that the failure to provide written grounds of arrest, in violation of the DGP-issued arrest memo format, rendered the arrest itself unlawful, thereby invalidating the subsequent judicial remand.
“This Court can entertain a habeas corpus writ petition, even when the accused is in judicial custody, if the initial arrest is shown to have been made in violation of procedure established by law,” the Court observed, setting a crucial precedent for future safeguards under the newly enacted BNSS.
“Constitutional Rights Are Not Empty Rituals”: Arrest Memo Without Grounds Violates Article 22(1)
The heart of the petitioner’s case lay in the challenge to his arrest on 26 December 2025 by U.P. Police from Haldwani, without being informed of the grounds of arrest, and the subsequent remand ordered by the Magistrate at Gautam Buddh Nagar on 27 December 2025.
The Court noted that the arrest memo (Annexure C.A.-5), which was claimed by the State to be in compliance with the BNSS and the Supreme Court’s guidelines, entirely failed to disclose the six mandatory particulars under Clause 13, which include:
The necessity of arrest,
Evidence or materials collected against the accused,
Specific grounds warranting custody, and
Reference to sections invoked along with supporting material.
“The arresting officer merely stated the sections under which the petitioner was booked and claimed the grounds were explained,” but the Court clarified, “None of the six sub-clauses under Clause 13 of the arrest memo were complied with. Not a single piece of material was disclosed to justify arrest.”
The Bench called this a clear and serious violation of both the statutory format and the constitutional mandate under Article 22(1).
Magistrate Must Apply Judicial Mind – Mechanical Remand Is Unacceptable
The Court did not stop at the police failure. The Bench strongly censured the Magistrate who authorised the judicial remand of the petitioner without verifying whether the arrest was in accordance with Sections 47 and 48 of BNSS, which require full communication of arrest grounds and legal rights.
"Admittedly, no such effort had been made by the learned Magistrate to ensure adequate legal aid to the accused petitioner," the Court stated, holding that this lack of judicial application of mind also vitiated the remand order, making it unsustainable in law.
Accordingly, the remand order dated 27.12.2025 passed by the Civil Judge (S.D.) F.T.C., Gautam Budh Nagar, was quashed.
“The Purpose of the Arrest Memo Is Being Frustrated by Police Officials Themselves”
The Court took particular note of the statewide circular dated 25.07.2025 issued by the Director General of Police, Uttar Pradesh, which introduced a detailed arrest memo format to ensure compliance with procedural safeguards laid down by the Supreme Court and the BNSS.
However, the Court found that the arresting officer failed to fill any of the crucial fields regarding grounds of arrest and evidence.
“It is high time that police officials, who are not complying with the requirements of the arrest memo... be sternly dealt with,” the Bench declared, observing that such conduct amounts to gross dereliction of duty and violation of constitutional rights.
In a strong direction to enforce accountability, the Court ordered that any such future violation of Clause 13 of the Arrest Memo “shall be treated as misconduct and will invite departmental proceedings, including suspension of the officer concerned.”
Petitioner Ordered to Be Released Forthwith – Arrest and Remand Both Declared Void
The Court, noting the complete breakdown of procedure in the present case, allowed the habeas corpus writ petition, quashed the arrest and remand order, and directed the immediate release of the petitioner, unless required in connection with any other case.
“It shall be open to the respondents to proceed afresh in accordance with law,” the Bench clarified.
Further, the Court ordered that the Registrar (Compliance) communicate this order to the Director General of Police, U.P. within one week, and ensure its circulation to all Commissioners, SSPs, and SPs across the state for strict implementation of Sections 47 and 48 of the BNSS, and the arrest memo format.
Arrest Is Not Lawful Until All Legal Requirements Are Fulfilled
This powerful judgment reinforces the constitutional principle that liberty cannot be curtailed without due process. It draws a sharp line between technical compliance and genuine adherence to safeguards under the law. The Allahabad High Court’s ruling is a clear message: police powers must be exercised transparently and responsibly, and judicial scrutiny at the remand stage cannot be perfunctory.
As the Court rightly said, “The requirement of furnishing written grounds of arrest is not a procedural luxury – it is a constitutional necessity.”
Date of Decision: 22 January 2026
