Procedural Safeguards Mandatory Even In National Security Cases: Rajasthan High Court Grants Bail Over Non-Supply Of Written Grounds Of Arrest

"Authoritative pronouncement rendered by the Hon’ble Supreme Court in Mihir Rajesh Shah (supra) leaves no scope for the investigating agency or the Magistrate to dilute or bypass the mandatory requirement of communicating the grounds of arrest in writing to the accused, the said safeguard being intrinsically connected with protection of personal liberty," Rajasthan High Court, in a significant ruling dated May 18, 2026, held that the failure to furnish written grounds of arrest to an accused person renders the arrest and subsequent detention illegal, regardless of the gravity of the alleged offense.

A bench of Justice Praveer Bhatnagar observed that the constitutional mandate under Article 22(1) and the statutory requirement under Section 47 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) are non-negotiable protections that ensure procedural fairness and transparency in the criminal justice system.

The petitioner, Jhabra Ram, was arrested in connection with FIR No. 01/2026 registered at the Special Police Station, CID Security, Jaipur, for offenses under Sections 3 and 9 of the Official Secrets Act, 1923, and Sections 152 and 238(b) of the Bharatiya Nyaya Sanhita, 2023 (BNS). The prosecution alleged that the petitioner was in contact with Pakistani handlers and was involved in transmitting sensitive military information via electronic modes. The petitioner sought bail primarily on the grounds that the mandatory procedural safeguards regarding the communication of grounds of arrest were violated at the time of his apprehension.

The primary question before the court was whether the failure of the investigating agency to provide the grounds of arrest in writing to the accused vitiates the legality of the arrest and subsequent remand. The court was also called upon to determine if substantial compliance or oral communication of grounds could suffice in cases involving threats to national security and sovereignty.

Constitutional And Statutory Safeguards Under BNSS

The Court began by emphasizing that the requirement to communicate grounds of arrest emanates directly from the constitutional guarantee enshrined under Article 21 and Article 22(1) of the Constitution of India. These protections are further codified in Section 47 of the BNSS (corresponding to the erstwhile Section 50 of the CrPC), which casts a mandatory obligation upon the police to forthwith communicate the grounds of arrest to any person apprehended without a warrant.

Reliance On Apex Court Precedents

Justice Bhatnagar placed heavy reliance on the evolving jurisprudence of the Supreme Court, citing the landmark rulings in Pankaj Bansal v. Union of India and Prabir Purkayastha v. State (NCT of Delhi). The Court noted that the Supreme Court has consistently held that furnishing written grounds of arrest is a substantive safeguard intended to enable an accused to effectively avail legal assistance and seek remedies such as bail.

The Two-Hour Threshold Established In Mihir Rajesh Shah

The Court highlighted the recent three-judge bench decision in Mihir Rajesh Shah v. State of Maharashtra, which authoritatively settled the mode and timing for supplying grounds of arrest. The bench noted that while grounds need not always be given at the exact moment of arrest in exigencies, they must be supplied in writing within a reasonable time and, in any event, no later than two hours prior to the production of the arrestee before a Magistrate for remand.

Failure To Adhere To Written Communication Mandate

Upon perusing the case diary and the Magistrate’s order-sheet, the High Court found that while the petitioner had been orally informed of the basis of his arrest, there was no record to indicate that written grounds were ever furnished. The Court observed that the illegality of this omission persisted through the remand proceedings, as the Magistrate granted custody without verifying if the mandatory requirement of written communication had been duly complied with by the investigating agency.

Magistrate’s Duty To Verify Procedural Compliance

The Bench underscored that a Judicial Magistrate has a proactive duty to ascertain whether Article 22(1) of the Constitution of India and Section 47 of the BNSS have been satisfied. The Court remarked that the absence of an objection by the petitioner at the first instance does not absolve the prosecution or the Magistrate of their duty to ensure strict adherence to these procedural mandates, as any lapse in this regard renders the continued detention legally unsustainable.

Procedural Compliance In National Security Offences

Addressing the prosecution's argument regarding the gravity of the offense, the Court stated that the serious nature of allegations involving national security actually necessitates even greater diligence in procedural compliance. The Court held that precisely because the case involves ramifications upon the sovereignty of the nation, the investigating authorities should have left no scope for controversy by strictly following the settled legal position regarding the arrest.

Distinguishing Substantial Compliance And Demonstrable Prejudice

The Court analyzed the State's reliance on State of Karnataka v. Sri Darshan, where a "prejudice-oriented test" was suggested for procedural lapses. However, the High Court noted that the subsequent Supreme Court ruling in Ahmed Mansoor v. State distinguished those findings, reiterating that the non-supply of written grounds is not a mere curable irregularity but a fundamental breach of constitutional rights that entitles the arrestee to be set at liberty.

Final Directions And Grant Of Bail

Concluding that the petitioner’s continued detention could not be sustained in law due to the procedural breach, the Court ordered his enlargement on bail. However, the Court granted liberty to the respondent State to take fresh recourse to law to arrest the petitioner if a case is made out, provided they follow proper procedural protocols. The Court also issued directions to the Registry to circulate the order to all subordinate courts for sensitization on mandatory safeguards.

Date of Decision: 18 May 2026