An arrest cannot be sustained where the grounds were never furnished in writing

A Division Bench of Justices Rajeev Ranjan Prasad and Sunil Dutta Mishra allowed an NIA Act appeal and ordered release, holding a proforma arrest memo is not compliance with Article 22.

A man held in a National Investigation Agency case has been ordered released on bail by the Patna High Court because the agency could not show that the grounds of his arrest were ever given to him in writing. A Division Bench of Justice Rajeev Ranjan Prasad and Justice Sunil Dutta Mishra, deciding an appeal under Section 21(4) of the National Investigation Agency Act, 2008, held that a copy of the written grounds of arrest must be furnished to an arrested person as a matter of course and without exception, that a proforma arrest memo reciting that the grounds were conveyed is not compliance, and that on this record the prejudice to the accused was evident. The judgment was authored by Justice Rajeev Ranjan Prasad and marked for reporting.

The case and the route to the High Court

The appellant, a resident of Anantnag in Jammu and Kashmir, was aggrieved by an order of 15 July 2025 by which the Special Judge, NIA, Patna rejected his prayer for regular bail in Special Case No. 10 of 2024, corresponding to an NIA RC of 2024 and arising out of a Banjariya police station case of 5 September 2024. The offences charged are under the Bharatiya Nyaya Sanhita, 2023, including Sections 111, 178, 179, 180, 181, 317(5), 318(4), 336(3), 338, 340(2) and 61(2).

The prosecution case rests on the self-statement of an Assistant Sub-Inspector recorded at 6.15 p.m. on 5 September 2024 on a national highway near Kharwa Pool, Banjaria, in East Champaran district, Motihari, describing what the informant said happened at about 5.30 that evening while he was proceeding with other police personnel.

The appeal was brought under Section 21(4) of the NIA Act. Md. Tahir, Mr. Kundan Kumar Ojha and Mr. Navneet Prabhakar appeared for the appellant; Dr. Krishna Nandan Singh, Additional Solicitor General, with Mr. Arvind Kumar, Mr. Tirupati Gaurav Shahi and Ms. Angel, for the agency.

What the law now requires of an arresting officer

The Bench set out four propositions, and together they amount to a checklist.

The first is that on Article 22 of the Constitution read with the Code of Criminal Procedure it is necessary for the investigating agency or arresting authority to furnish a copy of the written grounds of arrest to the arrested person as a matter of course and without exception, as held by the Supreme Court in Pankaj Bansal versus Union of India, (2024) 7 SCC 576.

The second is that an arrest memo which is simply a proforma indicating that the grounds of arrest have been conveyed is not compliance with the Supreme Court's judgments in Ahmed Mansoor and Dr. Rajindra Rajan.

The third follows from it: templates of arrest memos carrying a statement that the arresting officer explained the grounds of arrest to the accused before the arrest are no compliance with the mandate of Article 22 read with Sections 50 and 50A of the Code of Criminal Procedure, now Sections 47 and 48 of the Bharatiya Nagarik Suraksha Sanhita, 2023.

The fourth is about timing, and it comes from Mihir Rajesh Shah. In terms of paragraph 66.3 of that judgment, the grounds of arrest must be communicated in writing within a reasonable time and in any case at least two hours before the arrestee is produced for remand before the Magistrate.

Why Sri Darshan did not help the agency

The agency's answer rested on Sri Darshan, where the Supreme Court had declined to interfere despite an alleged procedural lapse. The Bench distinguished it on its facts, and the distinction is the useful part of the judgment for anyone arguing either side of this point.

In Sri Darshan the arrest memos and remand orders themselves reflected that the respondents were aware of the reasons for their arrest. They were legally represented from the outset and applied for bail shortly after arrest, which evidenced an immediate and informed understanding of the accusations against them. In those circumstances the Supreme Court found that no material had been placed on record to establish that any prejudice was caused by the alleged procedural lapse. The present facts being entirely different, the Bench held that Sri Darshan must be read as explained in paragraph 8 of Ahmed Mansoor.

What the record showed, and what it did not

On the facts the agency failed twice over. It could not demonstrate that the grounds for arrest or detention had been furnished in writing, and although time was granted to it, no document showing service of the grounds of arrest in writing was placed before the court.

The Bench then examined the transit remand order of 13 September 2024 passed by the Chief Judicial Magistrate. Before that Magistrate the Bihar police produced the case diary and a remand petition, but there is nothing to indicate that a copy of the case diary and the remand application was served on the appellant two hours before his production. On that footing the prejudice caused to the accused was evident, and the Magistrate had not satisfied himself about compliance with Article 22 read with Section 50 of the Code, now Sections 47 and 48 of the BNSS.

The judgment adds the practical consequence of the omission. In the absence of service of the grounds of arrest, the appellant could not file an application for bail immediately, either before the Chief Judicial Magistrate at Budgam or before the Special Judge, NIA at Patna.

Order

Holding that the appellant had made out a case for interference and that his arrest could not be sustained, the Bench set aside the order of the trial court and directed his release from custody with the benefit of the ratio in Mihir Rajesh Shah. He is to be released on bail forthwith on furnishing bail bonds to the satisfaction of the trial court, which may impose such other conditions as it thinks fit to secure his attendance during the trial. It remains open to the trial court to secure his presence during the trial, if occasion arises, by issuing coercive orders in accordance with law. The appeal was allowed to that extent.