Violation Of Article 22(1) & (2) | Arrestee Entitled To Release, But Investigating Agency Not Precluded From Re-Arresting If Due Procedure Is Followed: Supreme Court

"The investigating agency cannot be prohibited or restrained from seeking warrant of arrest of the appellant or from re-arresting him or seeking his custody/remand." Supreme Court, in a judgment dated September 21, 2026, held that while a breach of the constitutional safeguards under Article 22(1) and (2) of the Constitution of India renders an arrest illegal and entitles the accused to immediate release, it does not grant the accused "blanket immunity" from future arrest in the same case.

A bench comprising Justice Ujjal Bhuyan and Justice Atul S. Chandurkar observed that the prosecution’s power to effect a lawful arrest remains preserved, provided the subsequent procedure strictly complies with statutory and constitutional mandates.

Violation of Constitutional Safeguards

The appellant, facing allegations of serious offences under the Bharatiya Nyaya Sanhita (BNS) and the POCSO Act, had been released by a Magistrate because the police failed to provide him with written grounds of arrest, a violation of Article 22(1). The High Court had dismissed his plea seeking a permanent restraint on his re-arrest, a decision which the Supreme Court upheld. The bench clarified that the release consequent upon such a violation is not a release on bail, but a release from unconstitutional detention.

Fundamental Right to Information

The court underscored that the obligation to inform an arrestee of the grounds of arrest is a mandatory, sacrosanct constitutional safeguard. Quoting Mihir Rajesh Shah, the bench reiterated that non-compliance with the procedural requirement of providing written grounds of arrest vitiates the arrest and the subsequent remand. The court emphasized that the state must ensure these rights are protected in every case, irrespective of the gravity of the alleged offence.

Necessity of Judicial Imprimatur - Court Limits Discretion of Investigating Agency

The bench held that where an arrest is rendered illegal due to such violations, the power to re-arrest cannot be left to the unilateral discretion of the same authority that committed the initial breach. Instead, the investigating agency must move a formal application before the jurisdictional Magistrate. This application must furnish the grounds of arrest, the reasons for the prior non-compliance, and the necessity for further custodial interrogation.

Endorsement by Superior Authority

Ensuring Accountability in Police Action

To prevent abuse or collusion, the court further mandated that any such application for re-arrest must bear the endorsement of an immediate superior authority. This ensures that the superior officer is cognizant of the "unbecoming act" committed by the investigating officer in violating constitutional provisions. The Magistrate, upon receiving such an application, must decide it expeditiously, preferably within a week, adhering to the principles of natural justice.

Distinction from Default Bail

The court rejected the state's reliance on precedents like Sanjay Dutt and Rakesh Kumar Paul, distinguishing the present case from matters of "default bail." While those cases allowed for re-arrest after a default, the court noted that the current matter involves fundamental rights violations at the very threshold of the arrest process. The court clarified that while compensation may be awarded for such illegal detention as a public law remedy, it does not create a permanent bar against future valid police action.

Procedures for Re-arrest -Safeguarding Personal Liberty

Ultimately, the Supreme Court quashed the High Court's order only to the extent that it did not fully articulate the required protective procedures. The court directed that if the respondents find custodial interrogation necessary, they must strictly follow the mandate laid down in Mihir Rajesh Shah and the procedures articulated in this judgment. The bench clarified that it expressed no opinion on the merits of the allegations against the appellant, leaving the investigation to proceed in accordance with law.

Date of Decision: 21 September 2026