By Ranu Sharma* and Aklovya Panwar
The power to arrest is vested in police officers, serving as a critical tool for maintaining law and order across the nation. However, it is the duty of the police officer to exercise this power responsibly by complying with the principles of justice and the rule of law.
It is the primary duty of the police officer to inform the person of the “grounds of arrest” before the arrest. The provision in Article 22 of the Constitution of India addresses “Protection against arrest and detention in certain cases.” Article 22(1) states that a person who has been arrested shall not be detained in custody without first being informed of the grounds for such arrest. This means the person has the right to be informed about the grounds for the arrest prior to such arrest. Other rights are also granted to the arrested person under this provision.
However, the issue is whether the ground of arrest needs to be communicated in writing or oral communication is sufficient?
In Harikisan v. State of Maharashtra, it was held that under Article 22(5), the grounds on which a citizen’s liberty is curtailed must be communicated in writing so that he can seek remedial measures against it. Earlier, exceptions existed, allowing authorities to disclose grounds “as soon as possible” under certain circumstances, such as when immediate disclosure posed practical challenges or operational risks. In State of M.P. v. Shobharam, the courts held that reasonable cause and justification of circumstances could exempt the arresting authorities from immediate disclosure of arrest grounds.
The Code of Criminal Procedure, 1973 (CrPC), also mandates rights for the arrested person. Section 50 CrPC (replaced by Section 47 BNSS, 2023) outlines two critical obligations for police officers making an arrest: first, to communicate the grounds and particulars of arrest to the arrested person before the arrest; and second, to inform the individual of their right to bail. Splitting these duties ensures clarity and emphasizes both aspects of compliance. Additionally, Section 50A CrPC (replaced by Section 48 BNSS, 2023) obligates the arresting officer to inform the relative or friend of the arrested person about the arrest, the grounds for it, and the place of detention.
In Joginder Kumar v. State of U.P. the landmark judgment was pronounced by the Supreme Court of India that addresses the arbitrary use of arrest powers by the police officer which led to unlawful arrest and unlawful detention. This case emphasizes the importance of ensuring individual liberty and ensuring that the police exercise their power according to the procedure established by the law.
The Supreme Court in the case of D.K Basu v. State of West Bengal has established important guidelines to prevent custodial violence and to prevent abuse of the power of arrest by police officers. It is to ensure the protection of fundamental rights under Article 21 (Right to life and personal liberty) and Article 22 (Protection against Arbitrary arrest and detention).
Significant Changes
Despite these provisions, the abuse of arrest powers persists. Often, police officers make arrests without informing the person being arrested of the grounds, creating systemic voids and non-compliance with the principles of law. Recognizing this issue, the Supreme Court has implemented pivotal reforms, such as mandating written communication of arrest grounds, ensuring greater accountability and transparency in protecting the rights of arrested individuals.
The Supreme Court in Pankaj Bansal v. Union of India & Ors. mandated that the grounds of arrest must be furnished in writing as a matter of course to the arrested person. In the case, principle of law was laid down pertaining to the provision of The Prevention of Money Laundering Act, 2002 (“PMLA Act”).
Section 50 of the CrPC (Section 47 BNSS 2023) mandates the police officer who arrests someone without a warrant to immediately inform them of particulars of the offence and the grounds of arrest. This requirement is the same as mentioned in section 19(3) of the PMLA Act. It was held by the court that police authorities taking action in BNSS would be required to provide grounds of arrest in writing to avoid any doubt related to compliance. However, the use of the term “henceforth” in the judgment implied prospective applicability, meaning arrests made prior to its pronouncement on 3rd October 2023 were not invalidated.
In Ram Kishor Arora v. Directorate of Enforcement, the Court emphasized that oral communication of arrest grounds followed by written communication within 24 hours is sufficient compliance with both Section 19 of the PMLA and Article 22(1) of the Constitution. This aligns with the principles set forth in Vijay Madanlal Choudhary v. Union of India, where the Court held that the officer’s duty is fulfilled as long as the arrested person is informed in writing within a reasonable time, deemed to be within 24 hours.
Insights from the recent cases
In Prabir Purkayastha vs. State (NCT of Delhi) the Supreme court held that anyone who is arrested on suspicion of committing an offense under the Unlawful Activities (Prevention) Act , 1967 (“UAPA Act”) or for that matter, any other offence has a fundamental and statutory right to be informed about the reasons of arrest as well as grounds of arrest in writing, a copy must be given to the arrested person as a matter of course and without exception as soon as possible.
This ruling by the Supreme Court has changed the rules. As the case was specifically about UAPA but the court has mentioned “or any other offence as well” which means this provision is now subject to interpretation.
The Supreme Court also examined the applicability of the Pankaj Bansal precedent. The Court observed that the prospective effect of the judgment in Pankaj Bansal cannot invalidate an arrest merely because the judgment was uploaded late. The Court explicitly stated that the rule mandating written communication of arrest grounds applies to offenses under the UAPA and “any other offense,” requiring compliance within 24 hours of arrest.
Therefore, in cases like Ram Kishor Arora and Prabir Purkayastha, the judiciary has consistently upheld that timely provision of written arrest grounds is vital to safeguarding individual liberty. Informing the arrested person at the earliest—through oral or written means—is fundamental, as delayed or non-communication undermines transparency and constitutional guarantees.
The observation of the Supreme Court was followed by the Uttarakhand High Court recently in the case of Pawan Dhingra v. State of Uttarakhand. In this case, the grounds of arrest were never communicated to the petitioners (revisionist) in writing as mandated by the Supreme Court in the case of Prabir Purkayastha vs. State (NCT of Delhi) and Pankaj Bansal v. Union of India & Ors.
It is observed by the Hon’ble High Court that reading the statutory provision in context of the constitutional scheme as envisaged u/art 22 (1) makes it clear that the law has been laid down by the Supreme Court to convey the ground of arrest in writing. It cannot be said that this law is only applicable in the cases pertaining to the UAPA Act and PMLA Act. It has general applicability which extent to every offence within the view of Constitutional Scheme. As in the present case the grounds of arrest have not been communicated to the revisionists in writing. Therefore it is to be considered that the arrest and remand is not accordance to the procedure established by the law. The impugned order of arrest and remand is invalid held by the High court of Uttarakhand by following the precedent set by the Supreme Court.
Conclusion
Police officers are obliged to provide the grounds of arrest in writing prior to arrest to ensure compliance with the law, accountability, and transparency. This protects fundamental rights, prevents abuse of power, and ensures adherence to proper legal procedures. Failure to fulfill this duty undermines the principles of justice and the rule of law, eroding trust in both law enforcement and judicial processes.
(Contribution: Ranu Sharma is a lawyer by training. She is pursuing her Masters in Criminal Law. Her areas of focus are Criminal Justice, Constitutional Law, and Human Rights, where she aims to contribute meaningfully by advocating for justice.)