A Bench of Justices Ujjal Bhuyan and Atul S Chandurkar reiterated that a failure to furnish written grounds of arrest violates Article 22(1) of the Constitution and renders the arrest illegal.
Consequently, any accused arrested without such grounds being furnished must be released from illegal and unconstitutional detention, the Court held.
The Bench clarified that such a release does not permanently protect the accused from arrest in the same case.
However, if the investigating agency still requires the accused’s custody, it must first furnish the written grounds of arrest and obtain permission from the concerned magistrate.
The superior officer must then transfer the investigation to another officer and order a departmental inquiry into the lapse, the Court added.
A Bench of Justices Ujjal Bhuyan and Atul S Chandurkar reiterated that a failure to furnish written grounds of arrest violates Article 22(1) of the Constitution and renders the arrest illegal. Consequently, any accused arrested without such grounds being furnished must be released from illegal and unconstitutional detention, the Court held.
The Bench clarified that such a release does not permanently protect the accused from arrest in the same case. However, if the investigating agency still requires the accused’s custody, it must first furnish the written grounds of arrest and obtain permission from the concerned magistrate.
The Bench added that the custody application must explain why the grounds were not supplied at the time of the initial arrest and why custodial interrogation is necessary.
“Once there is a breach of Article 22(1) of the Constitution, the power to re-arrest the accused must not be left to the discretion of the very same authority who had violated the said provision of the Constitution. It must have the judicial imprimatur,” the Court further said.
The magistrate may permit re-arrest only after being satisfied that the grounds could not initially be supplied for bona fide reasons, that they were furnished after the accused’s release and that re-arrest is necessary, the Court held.
While reaffirming the procedure laid down in Mihir Rajesh Shah v. State of Maharashtra, the Court introduced additional safeguards governing any attempt to secure the accused’s custody again.
The Bench directed that the custody application must carry the endorsement of the investigating officer’s immediate superior. The superior officer must then transfer the investigation to another officer and order a departmental inquiry into the lapse, the Court added.
“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 departmental enquiry for such a serious lapse. If the enquiry culminates in adverse finding against the erring police officer(s), it would entail departmental action with entry in the service book of such officer(s),” the judgment stated.
