Non-Compliance With Section 47 BNSS Regarding Informing Grounds Of Arrest Vitiates Detention, Accused Entitled To Bail: Orissa High Court

"Section 47 BNSS are not empty formality, but statutory duty cast on the authorities concerned because the liberty of a person is priceless and violation thereof cannot be compensated in terms of money," Orissa High Court, in a significant ruling, held that the failure of arresting officers to communicate the grounds of arrest in writing to an accused, as mandated under Section 47 of the Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023, renders the detention illegal.

A single-judge bench of Justice G. Satapathy observed that these procedural safeguards are not merely statutory requirements but are inextricably linked to the fundamental right against arbitrary arrest guaranteed under Article 22(1) of the Constitution of India.

The five petitioners were arrested by the Cyber Crime & Economic Offences Police, Cuttack, for allegedly opening fake business accounts using electronic instruments of unsuspecting persons to facilitate illegal fund transfers. The petitioners sought bail on several grounds, primarily alleging that the mandatory procedures for arrest under the new criminal code, BNSS, were not followed by the investigating agency. They had been in custody since January 2026, while the principal accused had already been enlarged on bail.

The primary question before the court was whether the non-compliance with Section 47 and Section 48 of the BNSS regarding the communication of grounds of arrest and notification of relatives entitles an accused to be released on bail. The court also examined whether the requirement to provide written grounds of arrest is a mandatory constitutional safeguard under Article 22(1).

Sections 47 and 48 BNSS Reflect Fundamental Rights Under Article 22(1)

The Court began by emphasizing that the provisions of Section 47 of the BNSS, which require an arresting officer to inform the arrestee of the particulars of the offence, are a statutory manifestation of Article 22(1) of the Constitution. Justice Satapathy noted that Section 47 makes it imperative for the officer to forthwith communicate the grounds of arrest to any person arrested without a warrant.

"This is not only the statutory right of the accused person, but also his fundamental right as guaranteed under Article 22(1) of the Constitution of India, which provides for 'Protection against arrest and detention in certain cases'."

Obligation To Inform Relatives Under Section 48 BNSS

The Court further highlighted the mandatory nature of Section 48 of the BNSS, which corresponds to Section 50-A of the old CrPC. This section casts an obligation on the person making the arrest to inform a relative or friend nominated by the arrestee about the arrest and the place of detention. The Court noted that the Magistrate has a duty to satisfy themselves that these requirements have been complied with upon production of the accused.

"Sec.48 of BNSS makes it obligatory for the Arresting Officer to forthwith give the information relating to arrest in case where the accused person is being held, to any of his friends, relatives or such other persons."

Written Grounds Of Arrest Are Mandatory Per Supreme Court Precedent

Relying on the precedent set by the Supreme Court in Mihir Rajesh Shah v. State of Maharashtra (2026), the Court explained why grounds of arrest must be provided in writing. The bench noted that reading out grounds orally is often insufficient as an arrestee may not be in a frame of mind to remember the contents. The Court reiterated that written grounds must be supplied at least two hours prior to the production of the arrestee before the Magistrate.

Court Discusses Mode Of Informing Grounds Under Section 47 BNSS

The Court observed that while Section 47 does not explicitly mention "writing," judicial interpretation has made it mandatory to ensure the constitutional protection is not rendered nugatory. In cases where documentary material providing a basis for arrest exists, the written grounds must be furnished. The Court noted that non-compliance renders the subsequent remand illegal, and the person is at liberty to be set free.

"The grounds of arrest must be communicated in writing to the arrestee in the language he/she understands."

Procedural Lapses In The Present Case Found To Be Fatal

Upon perusing the Case Diary, the Court found significant lapses in the arrest procedure for several petitioners. There was no mention of the specific date and time of arrest for petitioners Rudra Madhab Mohapatra, Pananga Narayan Dash, and Smruti Ranjan Moharana. Furthermore, the record failed to show that written copies of the grounds of arrest were furnished to the arrestees or included in the remand papers as required by law.

"Nowhere it has been reflected either in the affidavit or in the Case Diary or record that a written copy of grounds of arrest were furnished to the arrestees immediate after their arrest or two hours prior to their production."

Liberty Is Priceless And Violation Cannot Be Compensated

The Court concluded that the liberty of an individual is of paramount importance and that statutory duties cast upon the authorities must be strictly followed. Given that the investigation was complete and the charge sheet had been filed, coupled with the fact that the principal accused was already on bail, the Court found no reason to further detain the petitioners in light of the procedural violations.

The High Court allowed all five bail applications, directing the release of the petitioners on a bail bond of Rs. 50,000 each with one solvent surety. The Court underscored that non-compliance with the mandatory provisions of Sections 47 and 48 of the BNSS, read with Article 22(1) of the Constitution, entitles the accused to be set at liberty.

Date of Decision: 30 April 2026