‘Not A Formality But A Mandatory Constitutional Requirement’, SC On Informing Accused Grounds Of Arrest

The apex court said informing the person arrested of the grounds of arrest is not a formality but a mandatory constitutional requirement.

New Delhi:The Supreme Court on Friday said informing grounds of arrest to an accused was not a "formality but a mandatory constitutional requirement”, and also criticized the police for handcuffing a man, whose arrest court declared illegal, while being taken to the hospital and being chained to the hospital bed and stressed on man’s right to live with dignity.

The judgment was delivered by a bench comprising justices Abhay S Oka and Nongmeikapam Kotiswar Singh. “The requirement of informing the person arrested of the grounds of arrest is not a formality but a mandatory constitutional requirement. Article 22 is included in Part III of the Constitution under the heading of fundamental rights”, said the bench, adding that it is the fundamental right of every person arrested and detained in custody to be informed of the grounds of arrest as soon as possible.

Article 22 says, “Protection against arrest and detention in certain cases: (1) No person who is arrested shall be detained in custody without being informed, as soon as may be, of the grounds for such arrest nor shall he be denied the right to consult, and to be defended by, a legal practitioner of his choice".

The bench said if the grounds of arrest are not informed as soon as may be after the arrest, it would amount to a violation of the fundamental right of the arrestee guaranteed under Article 22(1), and it will also amount to depriving the arrestee of his liberty. The apex court said the reason is that, as provided in Article 21, no person can be deprived of his liberty except following the procedure established by law.

The bench said when a person is arrested without a warrant, and the grounds of arrest are not informed to him, as soon as may be, after the arrest, it will amount to a violation of his fundamental right guaranteed under Article 21 as well. “In a given case, if the mandate of Article 22 is not followed while arresting a person or after arresting a person, it will also violate the fundamental right to liberty guaranteed under Article 21, and the arrest will be rendered illegal. On the failure to comply with the requirement of informing grounds of arrest as soon as may be after the arrest, the arrest is vitiated. Once the arrest is held to be vitiated, the person arrested cannot remain in custody even for a second”, said Justice Oka, in the judgment authored by him.

The bench held the arrest of one Vihaan Kumar, who was represented by senior advocate Kapil Sibal and advocate Vishal Gosain, in a financial fraud case as unconstitutional and violative of his fundamental rights under Article 22(1) of the Constitution. Kumar was arrested by the Haryana police in a 2023 cheating and forgery case on June 10, 2024.

The apex court declared his arrest illegal and ordered his immediate release, emphasizing on the importance of procedural safeguards in criminal law. Justice Singh concurred with Justice Oka and wrote a few pages to highlight the importance of Article 22 and the right of the accused.

Justice Oka said the requirement of informing a person arrested on the grounds of arrest is a mandatory requirement of Article 22(1). "The information of the grounds of arrest must be provided to the arrested person in such a manner that sufficient knowledge of the basic facts constituting the grounds is imparted and communicated to the arrested person effectively in the language which he understands. The mode and method of communication must be such that the object of the constitutional safeguard is achieved,” said Justice Oka.

The apex court said when an arrested accused alleged non-compliance of Article 22(1), the burden would always be on the police to prove compliance.

The apex court strongly criticized the shocking treatment given to the appellant by the police. He was chained and handcuffed in the hospital in the case. “This itself is a violation of the fundamental right of the appellant under Article 21 of the Constitution. The right to live with dignity is a part of the rights guaranteed under Article 21. We, therefore, propose to direct the State Government to issue necessary directions to ensure that such illegalities are never committed”, said Justice Oka.

The bench said it has no hesitation in holding that the arrest of the appellant was rendered illegal on account of failure to communicate the grounds of arrest to the appellant as mandated by Article 22(1) of the Constitution.

Justice Singh said the requirement of communicating the grounds of arrest in writing is not only to the arrested person, but also to the friends, relatives or such other person as may be disclosed or nominated by the arrested person, so as to make the mandate of Article 22(1) of the Constitution meaningful and effective failing which, such arrest may be rendered illegal.