A grounds-of-arrest challenge has a shelf life: Allahabad High Court holds Article 22 cannot be invoked once charges are framed
Justice Manish Mathur accepts that a second arrest in custody is a fresh arrest and that an Article 22(1) breach vitiates remand, then holds the remedy expires when the Section 167 stage does.
A man already in jail on one FIR was formally arrested on a second one, produced on a prisoner transit warrant, and remanded. He was never told, he says, why. By the time he came to the Allahabad High Court, the charge sheet had been filed, cognizance taken and charges framed. Justice Manish Mathur agreed with him on both points of principle that mattered — that his second arrest was a fresh arrest and not a mere change of custody, and that a breach of Article 22(1) would vitiate both the arrest and every remand order built on it — and then dismissed his petition anyway. The constitutional challenge, the Court held, had to be brought while the Section 167 stage was still alive. After that, it is too late.
A production warrant, and an arrest nobody explained
The applicant, Moti Ram Jaat, also known as Moti Ram Jaat Fauji, is accused number 2 in a supplementary final report filed by the Uttar Pradesh Anti-Terrorist Squad. The case arises out of case crime number 4 of 2025 and carries offences under Sections 148, 152 and 61(2) of the Bharatiya Nyaya Sanhita. It is pending as sessions case number 131 of 2025.
The sequence he challenged is a narrow one. The ATS obtained a production warrant dated 13 August 2025. On 29 August 2025 he was produced before the special court on that warrant, formally arrested on the prisoner transit warrant, and remanded to judicial custody. On 11 September 2025 a further remand application placed him in police custody. He was, throughout, already in custody in connection with an earlier FIR.
His petition under Section 528 of the Bharatiya Nagarik Suraksha Sanhita attacked the formal arrest of 29 August 2025 and both remand orders. The principal ground was that no grounds of arrest had been supplied — not to him, and not to his family. He added that there was no specific order approving judicial custody on 29 August 2025, and alleged non-compliance with Section 48(4) BNSS. His counsel relied on the recent Supreme Court line: Vihaan Kumar v. State of Haryana, Prabir Purkayastha v. State (NCT of Delhi), Pankaj Bansal v. Union of India, Mihir Rajesh Shah v. State of Maharashtra and Kasireddy Upender Reddy v. State of Andhra Pradesh.
The State's answer came in two parts, and they are worth separating because the Court accepted only the second. First, that because the applicant was already in custody and on remand in an earlier FIR, what happened on 29 August was a change of custody and not a fresh arrest, so Article 22(1) and Section 48(3) BNSS simply did not engage. Second, that the charge sheet had been filed on 25 November 2025 and cognizance taken on 27 January 2026, so a remand under Section 167(2) CrPC had lost its significance and could no longer be attacked in isolation. For that the Additional Government Advocate relied on Neeraj v. State of U.P., a Division Bench decision of the same Court in a habeas corpus petition.
Justice Mathur framed three questions: whether a remand order passed against an accused already in custody on an earlier FIR is a change of custody or a fresh arrest; whether, if it is a fresh arrest, non-compliance with Article 22 renders the detention illegal; and whether Neeraj binds him.
Question A: a fresh arrest, not a change of custody
On the first question the Court went to Dhanraj Aswani v. Amar S. Mulchandani, where the Supreme Court had surveyed conflicting High Court views and accepted the approach of the Orissa High Court in Sanjay Kumar Sarangi v. State of Odisha.
There are, on that approach, two ways a person already in custody may be arrested in another case. The arrest may follow his release in the first case. Or, before he is set free, he may be formally arrested and a prisoner transit warrant obtained under Section 267 CrPC from the jurisdictional magistrate. A formal arrest of that kind does not transfer him into police custody — he remains in the custody of the magistrate who remanded him in the first offence — and it is only after the formal arrest that the officer applies under Section 267 for the transit warrant, on which the accused must then be produced.
The Supreme Court had been explicit about why it set out that procedure at all: to negate the reasoning of the Rajasthan, Delhi and Allahabad High Courts that once in custody, a person cannot be re-arrested for a different offence. Confronted with a transit warrant, it observed, such a person has no choice but to submit to the custody of the officer who obtained it; there is no confinement by touch, but there is submission to custody. On production, he may be remanded to police or judicial custody, or released on bail and sent back to the first custody — exactly as with the arrest of a free person.
From that, Justice Mathur drew the conclusion the applicant wanted. A second arrest while in custody cannot be construed as a continuing arrest. It falls within the scope of a fresh arrest. Question A was answered accordingly.
Question B: and so Article 22(1) applies
The second answer followed from the first almost mechanically. Once the subsequent formal arrest is a fresh arrest, Article 22(1) read with Section 48(2) BNSS has to be complied with. The right to be informed of the grounds of arrest sits in Part III of the Constitution, and the consequential statutory right has to be honoured without violation.
The Court then set out the conclusions in Vihaan Kumar at length: that informing an arrested person of the grounds is a mandatory requirement of Article 22(1); that the information must convey sufficient knowledge of the basic facts, effectively, in a language he understands; that where non-compliance is alleged the burden lies on the investigating officer to prove compliance; that non-compliance vitiates the arrest and the remand orders that follow, though not the investigation, charge sheet or trial; that filing a charge sheet does not validate the breach; that a magistrate taking up a remand must himself ascertain compliance; and that once a violation is established the court must order release forthwith, statutory bail restrictions notwithstanding.
It also recorded the concurring opinion's extension, drawn through Section 50-A CrPC, that the grounds must be communicated not only to the arrested person but to the friends, relatives or nominated persons he names — because it is they who can engage lawyers and move for bail while he cannot.
A Division Bench of the same Court had recently followed Vihaan Kumar in Rakesh v. State of U.P., holding that a failure of Article 22(1) compliance renders a remand order illegal. Justice Mathur held, in terms, that a violation of Article 22(1) renders the initial detention and the remand order illegal, and that the accused must be set at liberty forthwith.
At the close of question B the applicant had, on the face of it, won twice.
Question C: declining to follow Neeraj, and declining its reasoning too
The third question is where the judgment does its real work, and it does something more interesting than simply applying or refusing a precedent.
Neeraj had held that the recent Supreme Court judgments — Vihaan Kumar, Prabir Purkayastha, Pankaj Bansal, Mihir Rajesh Shah, Kasireddy — are not binding precedent, because they were rendered without considering an older line, including Naranjan Singh Nathawan, Sanjay Dutt v. State through CBI, A.K. Gopalan, Kanu Sanyal and Col. Dr. B.R. Ramachandra Rao. On that basis the Division Bench had followed the older judgments and concluded that once a charge sheet is filed and cognizance taken, the first remand order cannot be challenged, having regard to Sections 209 and 309 CrPC.
Justice Mathur first disposed of Neeraj on a narrow ground. The questions framed there were confined to whether a person arrested or detained may file a habeas corpus petition on an Article 21 and 22 violation at any time after remand, and whether there is a time line for such a petition. The answer turned on the presumption of validity of custody that attends a habeas corpus return. The present case is not a habeas corpus petition at all; it is a Section 528 BNSS petition challenging the legality of the remand itself. That alone, he said, would suffice.
But he went further, and the reason he gave is the reason this judgment matters. Because Neeraj had also declared the Vihaan Kumar line non-binding, and because the applicant's case rested on precisely that line, the Court was compelled to address the point.
Its answer was that there is no contradiction to resolve. Having gone through Naranjan Singh Nathawan, Ram Narayan Singh v. State of Delhi and Kanu Sanyal — all habeas corpus cases, all concerned with whether legality is judged at the institution of proceedings, at the return of notice, or at the hearing — Justice Mathur held that the earlier judgments and Vihaan Kumar do not collide, including the Constitution Bench decisions among them. They answer different questions.
That is a pointed disagreement with a Division Bench of the same Court, reached without disobeying it: the single judge does not treat the recent Supreme Court judgments as non-binding, as Neeraj did, but arrives at a similar practical destination by a different road.
Section 207, and the moment the right is satisfied
That road runs through a provision nobody had been arguing about.
Section 207 CrPC requires the magistrate to supply the accused with a copy of the police report and the documents listed in it. Only once that is done can a further remand under Section 209 or Section 309 follow. And once it is done, the Court reasoned, the accused knows the allegations against him and the outcome of the investigation. At that point it cannot be said that he needs, all over again, to be made aware of the reasons and grounds of his arrest.
From that the Court drew its central proposition: Article 22(1) has to be followed only while the Section 167 stage exists, and not after — particularly not once Section 207 has been complied with. To hold otherwise, it added, would render Section 207 redundant between the stages of Section 207 and Sections 209 or 309, which cannot have been the legislative intention or the purpose of Article 22(1).
The underlying purpose of Article 22(1), as the judgment puts it, is that an accused should not remain in the dark about the allegations and the reasons for his arrest, so that he or his family can mount an effective defence. The broad contours of the guarantee therefore stand substantively satisfied at the Section 207 stage.
Two further strands support the reading. The first is an argument from silence: Vihaan Kumar does not discuss Sections 204, 207, 209 or 309 at all, and the Court treated that non-consideration as useful in understanding the judgment's purport — evidence that it was speaking to the Section 167 stage and no further. The second is internal to Vihaan Kumar itself. Its paragraph 21 says a breach vitiates the arrest and the further remand orders, but the same paragraph says it does not vitiate the investigation, the charge sheet or the trial. Since a criminal trial commences with the charge sheet and the framing of charges, the vitiating effect must attach to the initial remand after arrest, not to a subsequent remand under Section 209 or Section 309.
The Court also invoked Kasireddy for a carve-out that fits these facts closely: where a person is arrested on a warrant, the warrant is itself the ground of arrest, and reading it over to him is sufficient compliance. Moti Ram Jaat was produced and formally arrested on a prisoner transit warrant.
Finally, Explanation I to Section 167 was read with Section 309(2). Section 309(2) allows a remand by warrant only if the accused is in custody; Explanation I declares that notwithstanding the expiry of the specified period, the accused shall be detained in custody so long as he does not furnish bail. An accused who has not furnished bail by the time Section 309 applies is therefore in custody, and the subsequent remand is valid.
Order
The challenge to the initial detention and the initial remand order for violation of Article 22(1), the Court held, can be raised only while the Section 167 stage exists, and not thereafter.
In this case the Section 167 stage was over, charges having been framed and the trial under way. The applicant had not furnished bail while the Section 167 proceedings subsisted, so he was to be treated as being in custody. He could not raise a plea of violation of Article 22(1) at this belated stage. The question was answered negatively against him and the petition, found devoid of merit, was dismissed.
What survives is a timetable rather than a dilution. The Court did not say that grounds of arrest may be withheld, or that a magistrate need not check. It said the opposite on both counts, and it accepted that a prisoner re-arrested inside jail is entitled to the same information as a man picked up off the street. Its holding is about remedy. A detainee who wants his arrest and remand set aside for want of grounds must move before the police report is supplied to him under Section 207 and the case passes out of Section 167; after that, on this reading, the breach is no longer one the remand can be unwound for.
That is a demanding window for a prisoner who has not been told why he was arrested, and it sits against a Supreme Court line that has been moving the other way — Vihaan Kumar saying in terms that filing a charge sheet will not validate a breach of the constitutional mandate. Justice Mathur's answer is that the charge sheet is not what cures it; compliance with Section 207 is, because by then the accused has in his hands the material the guarantee was meant to give him. Whether that satisfies a constitutional right whose point is to operate at the moment of arrest, rather than months later through a different provision, is a question this judgment leaves for a larger Bench to take up.