Challenge To Initial Remand Order For Violation Of Article 22(1) Constitution Of India Not Maintainable After Cognizance Is Taken: Allahabad High Court

"The conclusion recorded in the case of Vihaan Kumar... obviously pertains to the initial stage of remand after arrest and not subsequent remand either under Section 209 or Section 309 Cr.P.C." Allahabad High Court, in a ruling dated 01 October 2026, held that a challenge to an order of remand on the grounds of violation of the fundamental right to be informed of the reasons for arrest under Article 22(1) of the Constitution is not maintainable once cognizance of an offence has been taken and the stage of Section 167 Cr.P.C. has concluded.

Dealing with an application under Section 528 of the Bharatiya Nagarik Suraksha Sanhita (BNSS), a bench of Justice Manish Mathur observed that the protections under Article 22(1) are intended to safeguard an accused during the initial stages of investigation and do not permit a challenge to the legality of detention once the trial process has commenced.

The petitioner had challenged the order of formal arrest and subsequent remand orders, contending that the failure to communicate the grounds of arrest violated the fundamental rights enshrined in Article 22(1) of the Constitution of India. It was argued that such non-compliance vitiated not only the initial arrest but also all subsequent orders of remand. The state, however, contended that the remand was legally valid as it followed a change in custody and that, regardless, the subsequent filing of a charge sheet and the passing of a cognizance order rendered the initial remand challenge moot.

The court was primarily called upon to determine whether a remand order passed against an accused while they are already in custody constitutes a fresh arrest and whether any non-compliance with Article 22(1) of the Constitution renders such detention illegal even after the filing of a charge sheet. Furthermore, the court had to decide if the recent line of Supreme Court judgments, including Vihaan Kumar v. State of Haryana, established a binding precedent that invalidates all subsequent remand orders regardless of the progression of the case.

Arrest While In Custody Amounting to Fresh Arrest

The court clarified that an accused who is already in judicial custody regarding a previous case can be formally arrested in a different offence, and such a formal arrest constitutes a fresh arrest rather than a mere continuation of the previous custody. Relying on the Supreme Court's decision in Dhanraj Aswani v. Amar S. Mulchandani, the court affirmed that this process necessitates compliance with constitutional safeguards at the time of the fresh arrest.

Constitutional Safeguards and Section 167 Cr.P.C.

The bench underscored that the right to be informed of the grounds of arrest is a mandatory requirement of Article 22(1) meant to provide the accused and their relatives the opportunity to seek legal recourse. However, this constitutional mandate is inextricably linked to the initial stages of investigation governed by Section 167 of the Code of Criminal Procedure (Cr.P.C.). Once the investigation concludes and a charge sheet is filed, the nature of judicial custody shifts to the post-cognizance stage.

Compliance at the Stage of Section 207 Cr.P.C.

The court observed that Section 207 of the Cr.P.C. requires the supply of police reports and other relevant documents to the accused, which ensures the accused is fully apprised of the allegations against them. The court held that the broad contours of Article 22(1) stand substantively satisfied once these documents are provided. Consequently, any plea regarding the invalidity of the initial arrest based on Article 22(1) cannot be entertained after the provisions of Section 207 have been complied with.

Scope of Supreme Court Precedents

Addressing the reliance placed by the petitioner on Vihaan Kumar v. State of Haryana, the court distinguished the ruling by noting that it did not discuss the subsequent stages of criminal proceedings under Sections 204, 207, 209, or 309 of the Cr.P.C. The court held that the ratio of Vihaan Kumar is restricted to the stage of Section 167 Cr.P.C. and does not extend to the post-cognizance period.

Distinction from Habeas Corpus Jurisprudence

The bench emphasized that earlier judgments concerning habeas corpus petitions consistently held that the legality of detention must be judged on the date of the return of the notice or the hearing, rather than solely on the initial arrest. The court concluded that when an accused remains in custody through valid subsequent remand orders under Sections 209 or 309 of the Cr.P.C., they cannot be set at liberty solely on the ground of a procedural infirmity in the initial detention.

Dismissal of the Petition

Concluding that the petitioner did not furnish bail during the currency of the Section 167 Cr.P.C. stage and that the proceedings had advanced to trial, the court held that the plea of constitutional violation was raised at a belated stage. Finding the petition devoid of merits, the court dismissed the application under Section 528 BNSS.

Date of Decision: 01 October 2026