The Grounds of Arrest

In one line

An arrested person must be given, in writing, the grounds personal to him that made his arrest necessary, and an arrest made without that is vitiated and he must be released.

The provisions

Article 22(1) of the Constitution. No person who is arrested shall be detained in custody without being informed, as soon as may be, of the grounds for such arrest.

Section 47 of the procedure code. Every police officer or other person arresting any person without warrant shall forthwith communicate to him full particulars of the offence for which he is arrested or other grounds for such arrest. And where the officer arrests without warrant a person other than a person accused of a non bailable offence, he shall inform the person arrested that he is entitled to be released on bail and that he may arrange for sureties.

The second limb is often forgotten. For a bailable offence the officer must tell the arrested person not only why he is being arrested but that he may be released on bail.

Why the right matters

The right is not merely a courtesy. It is the precondition of everything else the arrested person can do.

• He cannot instruct a lawyer usefully unless he knows what is alleged.
• He cannot resist a remand application unless he knows what the police say made his arrest necessary.
• He cannot apply for bail unless he knows the case he must meet.

That is the reasoning the Supreme Court has adopted, and it explains the shape of the modern law.

Reading out is not enough

Pankaj Bansal v. Union of India, decided on 3 October 2023, is the first of the two decisions that changed the practice. The appellants were arrested under the money laundering statute, and the Investigating Officer merely read out, or permitted the reading of, the grounds of arrest, and left it at that.

The Court held that a copy of the written grounds of arrest must be furnished to the arrested person as a matter of course and without exception. It reasoned that grounds of arrest in such cases may run to several pages, and a person cannot be expected to retain their contents from a single reading, whatever their length and detail. Because the grounds recorded are personal to the person arrested, there is ordinarily no risk of sensitive material being divulged; and where sensitive material does appear, the officer may redact those portions and furnish an edited copy, so that the investigation is protected. Decisions of two High Courts holding the contrary were held not to lay down the correct law.