New Delhi: The Supreme Court ruled a day ago ruled that arrested persons must be informed of the grounds of their arrest in writing – importantly, in a language they understand – for any offences under the Bharatiya Nyay Sanhita (BNS) 2023, and other laws.

In exceptional circumstances where immediate written communication is impractical (such as offences committed in front of police), grounds can be conveyed orally at arrest, the court said, adding that it still must be provided in writing within a reasonable time and at least two hours before remand proceedings.

A bench of Chief Justice B.R. Gavai and Justice Augustine Masih has held that non-compliance would render the arrest and remand illegal.

The judgement came in a petition filed by the accused in a hit-and-run case in Mumbai last year in which a woman was killed. It benefits one Mihir Shah, the son of Shiv Sena (Shinde camp) leader Rajesh Shah, who had rammed his BMW car into a scooter. Shah's bail plea was earlier rejected by the Bombay high court. But the judgement is likely to have far reaching consequences in other cases across the country.

As The India Cable newsletter notes, recent cases like Pankaj Bansal (2024) and Prabir Purkayastha (2024) had held that providing written grounds for arrest were mandatory for special statutes like the Prevention of Money Laundering Act and the Unlawful Activities Prevention Act, but there was ambiguity about the procedure to be followed for regular criminal offences. This judgment settles the ambiguity by making written communication mandatory for all offences and establishing the two-hour minimum timeframe.

The bench said:

"This Court has reached the above conclusion based on the proposition that mere oral communication of such grounds, in the absence of any written document, renders the compliance susceptible to factual disputes which often result into conflicting Criminal Appeal claims between the arrested person and the investigating agency. This conflict results in jeopardizing the integrity of the arrest process and thereby giving an opportunity to the accused person to claim an immediate release. This situation may be obviated by furnishing the grounds of arrest in writing. Apart from the practical difficulties, furnishing grounds of arrest in writing also results into effective compliance of the mandate provided under Article 22 of the Constitution of India."

The court emphasised that this is not mere procedural formality but a fundamental constitutional safeguard:

“The requirement of informing the arrested person the grounds of arrest, in the light of and under Article 22(1) of the Constitution of India, is not a mere formality but a mandatory binding constitutional safeguard which has been included in part III of the Constitution under the head of Fundamental Rights. Thus, if a person is not informed of the grounds of his arrest as soon as maybe, it would amount to the violation of his fundamental rights thereby curtailing his right to life and personal liberty under Article 21 of the Constitution of India, rendering the arrest illegal."

Noteworthy also is the court's stress that the grounds of arrest be communicated in writing to the arrested "in the language he/she understands."

"The failure to supply such grounds in a language understood by the arrestee renders the constitutional safeguards illusory and infringes the personal liberty of the person as guaranteed under Article 21 and 22 of the Constitution of India. The objective of the constitutional mandate is to place the person in a position to comprehend the basis of the allegations levelled against him and it can only be realised when the grounds are furnished in a language understood by the person, thereby enabling him to exercise his rights effectively."

LiveLaw noted that the court stressed that the arrested person has to understand the accusation, seek legal advice, challenge police custody, and apply for bail.

It also said:

"This Court, as observed above, had held that it would not be ideal to read out the grounds of arrest to a person who is arrested, as he may not be in the frame of mind to remember the contents of grounds that are read out to him. The Court underscored that if the authorities are permitted to read out the grounds and claim compliance with the constitutional and statutory mandate, the very purpose of the constitutional protection would be nugatory."

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