New Delhi: The Supreme Court has held that an accused whose arrest has been declared illegal for violation of Article 22 of the Constitution cannot simply be re-arrested by the investigating agency without seeking the permission of a judicial magistrate.
In a judgement delivered Monday, a bench of Justices Ujjal Bhuyan and Atul S. Chandurkar set aside a Punjab and Haryana High Court order, which had allowed the investigating agency to seek the re-arrest, custody or remand of Jaskaran Jeet Singh Deol, an accused in a case registered under provisions of the Bharatiya Nyaya Sanhita and the Protection of Children from Sexual Offences Act.
The Supreme Court was considering whether an accused who had suffered violations of both Article 22(1) and Article 22(2)—the right to be informed of the grounds of arrest and the right to be produced before a Magistrate within 24 hours—could be re-arrested for the same offence.
It held that if the investigating agency continues to require the accused’s custody after such a constitutional violation, it must approach the magistrate and satisfy the safeguards laid down by the court. The judgement also makes clear that the gravity of the allegations cannot dilute constitutional protections governing arrest.
Grounds of arrest
The case arose after the accused was arrested on 17 May, and produced before a magistrate the following day for police remand. The magistrate found that the police had not furnished written grounds of arrest to the accused. This was held to violate Article 22(1) of the Constitution, read with the statutory requirement under the Code of Criminal Procedure and the Bharatiya Nagarik Suraksha Sanhita.
The accused was consequently directed to be released. The magistrate, however, observed that the investigating agency could proceed according to law if it considered custody necessary, provided the constitutional and statutory requirements were followed. A subsequent application seeking custody was rejected by the additional chief judicial magistrate, who noted that the grounds of arrest had not been supplied and that custody could not be granted before the arrest of the accused.
The accused then approached the Punjab and Haryana High Court, seeking to restrain the investigating agency from re-arresting him, seeking his custody or obtaining an arrest warrant. The high court dismissed the plea.
It held that the declaration of illegality of the earlier arrest did not give the accused blanket immunity from future arrest. According to the high court, the investigating agency could seek his re-arrest provided the subsequent arrest was carried out in accordance with law.
The Supreme Court has now set aside that order. Re-arrest cannot be left to the same agency that violated Article 22.
The Supreme Court examined the constitutional significance of furnishing grounds of arrest. It relied on its earlier judgement in Mihir Rajesh Shah vs State of Maharashtra, which held that an arrested person must be informed of the grounds of arrest so that he can understand the basis of his arrest, consult legal counsel and challenge the arrest, seek bail or pursue other remedies available in law.
The court noted that the constitutional mandate contains no exception based on the nature of the offence or the statute under which the arrest is made.
The bench then considered what should happen if the investigating agency wants custody after the accused has been released because of a violation of Article 22(1). It held that the agency must approach the magistrate with an application explaining the necessity for custody. The procedure laid down by the court requires the agency to comply with the safeguards flowing from the Mihir Rajesh Shah case, and the directions contained in the present judgement.
The court also directed that the matter be subjected to scrutiny at the administrative level. Where an accused is released because of a violation of Article 22(1), the superior authority, when dealing with a subsequent request for custody, must transfer the investigation to another officer and direct a departmental inquiry into the lapse. If the inquiry establishes wrongdoing, departmental action is to follow.
The reasoning is significant because the court has distinguished the case from situations involving default bail. The State had relied on earlier decisions, including Sanjay Dutt and Rakesh Kumar Paul, to argue that release of an accused does not necessarily prevent a subsequent arrest.
The Supreme Court said those judgements dealt with default bail and were therefore materially different. In the present case, the issue concerned violations of fundamental rights at the stage of arrest itself.
The court said the distinction was crucial: while an accused released on default bail may subsequently be arrested on cogent grounds, the same principle cannot simply be applied where the State has first violated the constitutional safeguards governing the arrest.
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The 24-hour rule
The court separately dealt with Article 22(2). The accused had also alleged that he was produced before the magistrate more than 24 hours after his arrest. The Supreme Court treated this as a separate constitutional violation from the failure to furnish written grounds of arrest.
It held that where an accused is released because of a breach of Article 22(2), and the investigating agency nevertheless considers his custody necessary, the same judicially supervised procedure must be followed.
The court specifically held that the investigating agency cannot rely on the seriousness of the allegations to bypass the constitutional requirement.
It also said that, depending on the facts, a high court may award compensation as a public law remedy for violation of Article 22(2), while leaving the accused free to pursue remedies under private civil law.
The judgement repeatedly emphasised that constitutional safeguards cannot be interpreted differently depending on the gravity of the alleged offence. “Violation of the Constitution or a constitutional provision cannot be countenanced,” the bench said, stressing that such protection extends across offences.
The court ultimately quashed the Punjab and Haryana High Court’s 29 May order as well as the relevant observations made by the magistrate on 18 May. It directed that if the investigating agency believes custodial interrogation of the accused is necessary, it must follow the procedure laid down in Mihir Rajesh Shah, the safeguards set out in paragraphs 24 to 25.1 of the judgement and the directions concerning Article 22(2).
At the same time, the bench expressly said that it had not expressed any opinion on the merits of the allegations against the accused. The court also directed that copies of the judgement be circulated to the police chiefs of all States and Union Territories, registrars general of high courts and directors of state judicial academies.
The appeal was accordingly allowed.
(Edited by Nardeep Singh Dahiya)