New Delhi, Sep 21 (PTI) In a significant judgment, the Supreme Court on Monday held that an investigating agency must approach a magistrate for re-arresting a person if he/she is released by the court in the same case for not being provided grounds of arrest or being in detention for more than 24 hours.
The top court said that Articles 22(1) and 22(2) of the Constitution, which say that no person can be arrested without being provided grounds of arrest and every person arrested/detained shall be produced before the nearest magistrate within a period of 24 hours, respectively, cannot be tinkered with.
It added that what is sought to be highlighted is that once there is a breach of Article 22(1), the power to rearrest the accused must not be left to the discretion of the same authority which had violated the said provision of the Constitution, and it must have the judicial imprimatur.
A bench of Justices Ujjal Bhuyan and A S Chandurkar said that the Constitution or a constitutional provision cannot be interpreted in a vacuum, and that interpretation of the Constitution cannot be left to imponderables in the form of ifs and buts.
“The Constitution is based on certain basic principles, much above the statutory threshold. Therefore, violation of the Constitution or a constitutional provision cannot be countenanced. It has to be dealt with strictly. It is not dependent on the nature or gravity of the offence, encompassing within its sweep all offences. It cannot be interpreted in a restrictive manner,” the bench said.
Justice Bhuyan, who penned the verdict on behalf of the bench, said that when a certain procedure is prescribed by the Constitution or the laws for depriving a citizen of his personal liberty, it is the duty of the court to ensure that such a procedure is rigorously observed, howsoever strange this might sound to some ears.
“If upon release of such an accused, the investigating agency is still of the opinion that for furthering the course of investigation it is necessary to have custodial interrogation of the accused, then, as directed in Paragraph 65 of Mihir Rajesh Shah (2025 verdict), the investigating agency has to file an application before the concerned magistrate for custody, mentioning therein the reasons for rearrest of the accused and the necessity for the same,” the bench said.
The top court strengthened the mechanism, which was held in the Mihir Rajesh Shah case, and directed that application for rearrest be brought to the knowledge of superior officers and department proceedings be initiated against erring police officers.
Justice Bhuyan said the court is bound by the ratio laid down in the Mihir Rajesh Shah case and endorses the course of action declared thereof and would like to further stress upon and strengthen the safeguards introduced by way of the said judgment when it comes to rearrest of an accused who is released from custody for breach of Article 22(1).
The bench said the application for rearrest of the person should also contain the explanation for non-supply of the grounds of arrest to the accused at the first instance and can only be moved after furnishing the grounds of arrest to the accused.
“To rule out any foul play or collusion, such an application must have the endorsement of the immediate superior authority. This is because the immediate superior authority should know that the concerned officer has committed an unbecoming act of violating a constitutional provision for which necessary remedial steps will have to be taken.
“On receipt of such application with the endorsement, the concerned magistrate shall decide the same expeditiously and as directed in the Mihir Rajesh Shah case, preferably within a week of its submission, by adhering to the principles of natural justice,” the top court said.
The bench said only when the magistrate is satisfied that for bona fide reasons the grounds of arrest could not be furnished to the arrestee at the first instance but furnished subsequent to his release and on further satisfaction that the accused needs to be re-arrested, he may pass an order permitting the investigating agency to rearrest.
“On the administrative side, the superior authority, when presented with the application seeking his endorsement for custody of the accused who has been released for violation of Article 22(1), shall hand over the investigation of the case to another officer, further directing a department inquiry for such a serious lapse.
“If the enquiry culminates in an adverse finding against the erring police officer(s), it would entail department action with entry in the service book of such officer(s),” the top court said.
The court set aside the Punjab and Haryana High Court order of May 29, which dismissed the plea of Jaskaran Jeet Singh Deol, a POCSO case accused, against quashing of his arrest and order of the magistrate saying the investigating agency cannot be prohibited or restrained from seeking warrants of arrest against the appellant or from re-arresting him or seeking his custody/remand.
The magistrate had earlier released Deol from custody after finding that Article 22(1) was not complied with but allowed the Punjab Police to arrest him by following the due course of law. PTI MNL ARI
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