No written grounds, no prejudice: Supreme Court cancels High Court bail in Pokhran espionage case
Justice M.M. Sundresh and Justice Prasanna B. Varale set aside a Rajasthan High Court order freeing a man accused of passing troop movements to Pakistani handlers, holding that a signed arrest memo and an unobjecting counsel met Section 47 BNSS.
A man from Jaisalmer district accused of sending photographs, videos and troop movement details from Pokhran to handlers of a Pakistani intelligence agency must return to custody within two weeks. On 28 October 2026 the Supreme Court allowed the State of Rajasthan’s appeal and cancelled the regular bail that the High Court of Judicature for Rajasthan, Bench at Jaipur, had granted to Jhabra Ram on 18 May 2026. The High Court had released him on a single ground: that the grounds of his arrest had not been given to him in writing before or at the remand hearing, and that oral intimation or a case diary entry did not satisfy Section 47 of the Bharatiya Nagarik Suraksha Sanhita, 2023, read with the Supreme Court’s decision in Mihir Rajesh Shah v. State of Maharashtra, (2026) 1 SCC 500.
The judgment, written by Justice Prasanna B. Varale for a bench that also included Justice M.M. Sundresh, does not dilute the rule that an arrested person must be told why he has been arrested. What it rejects is the use of that rule as an automatic key to bail. Where the record shows that the accused knew the case against him, was represented by counsel at remand and raised no complaint there, and cannot point to any prejudice, the Court held that a defect in the form of communication cannot by itself unlock release, least of all in a case of alleged espionage touching national security. The judgment is marked non-reportable.
Two statutory notices, then an arrest at four in the afternoon
The case began with intelligence gathered by an Assistant Sub-Inspector of the CID (BI) post at Pokhran, Jaisalmer, indicating that Jhabra Ram was in contact with foreign handlers belonging to a Pakistani intelligence agency and was passing sensitive military intelligence about the Indian Army in exchange for money. Before any FIR was registered, two notices under Section 8(1) of the Official Secrets Act, 1923, dated 23 January and 26 January 2026, were served on him. They required him to appear at the Joint Interrogation Centre, Jaisalmer, on 25 January and at the Central Interrogation Centre, Jaipur, on 28 January, and to furnish whatever he knew about a suspected offence under Section 3 of the Act.
A preliminary inquiry and technical analysis followed. According to the State, this established that he was operating a WhatsApp number through which military photographs, videos and strategic troop movement details in Pokhran and Jaisalmer were being sent to Pakistani handlers, who used three other numbers including a virtual one, in return for financial consideration. FIR No. 01/2026 was registered at the Special Police Station, District CID (Security), Jaipur, at 12:27 pm on 30 January 2026, for offences under Sections 3 and 9 of the Official Secrets Act and Sections 152 and 238(b) of the Bharatiya Nyaya Sanhita, 2023. He was formally arrested at 4:00 pm the same day.
What happened in the next ten minutes became the centre of the appeal. The arrest memo setting out the accusations was drawn up, read over to him in the presence of two witnesses, both police personnel posted at the Special Police Station, an Assistant Sub-Inspector and a Constable, and signed by him. At 4:10 pm the investigating officer obtained the mobile number of his brother, Bhomaram, from him and telephoned the brother to inform him of the arrest, again in the presence of the same two witnesses. That call was recorded in an Arrest Information Memo, which was read out before the witnesses and which Jhabra Ram also signed.
Remand without objection, bail refused by the Sessions Court
On 31 January 2026 he was produced before the Additional Chief Judicial Magistrate No. 5, Jaipur Metropolitan-I. He had a lawyer, who opposed police custody remand on the merits. Neither he nor his counsel said anything about grounds of arrest not having been communicated or furnished. The Magistrate looked at the case diary and the Section 47 notice annexed to it and recorded in the remand order that the family had been informed of the arrest, that sufficient grounds existed on record, and that the accused appeared to have been apprised of them.
His first bail application went to the Additional District and Sessions Judge-3, Jaipur Metropolitan-I, who rejected it on 10 March 2026. The Sessions Judge addressed the merits and also held that the detailed grounds recorded in the signed arrest memo amounted to complete compliance in substance with Section 47, so that the absence of a separate written document was no ground for bail. Jhabra Ram then moved the High Court in S.B. Criminal Miscellaneous Bail Application No. 4778 of 2026, and on 18 May 2026 the High Court, exercising its power under Section 483 of the BNSS, let him out.
The High Court’s own order, the Supreme Court later pointed out, contained two concessions that undercut its conclusion. In paragraph 16 it recorded that the case diary showed the investigating officer had informed the accused of the fact and reasons for his arrest as Section 47 requires. In paragraph 17 it acknowledged that no grievance about non-communication had been raised before the Magistrate.
What the State and the accused argued
Rajkumar Bhaskar, Additional Solicitor General, appeared for Rajasthan. He submitted that the High Court had granted bail without considering the gravity of accusations involving national security or the material gathered in the investigation, and had done so on a purely hyper-technical ground. Article 22(1) of the Constitution and Section 47 of the BNSS had been meaningfully complied with: the accused was told the factual basis of his arrest, it was spelled out in the arrest memo he signed, and his brother was told of the arrest by telephone under a contemporaneous memo. He had prior knowledge of the allegations from the two Official Secrets Act notices, and at remand his counsel had fought police custody on the merits without a word about grounds of arrest.
The ASG relied on Kasireddy Upender Reddy v. State of Andhra Pradesh, (2026) 8 SCC 275, and State of Karnataka v. Sri Darshan, (2026) 8 SCC 223, for the proposition that substantial compliance with procedural safeguards is enough unless the accused shows demonstrable prejudice. He distinguished Pankaj Bansal v. Union of India, (2024) 7 SCC 576, and Prabir Purkayastha v. State (NCT of Delhi), (2024) 8 SCC 254, as cases where prejudice had been established; here the accused was named in the FIR, knew the precise allegations and had neither pleaded nor proved any prejudice.
Counsel for Jhabra Ram defended the High Court’s order. Non-furnishing of written grounds of arrest, he argued, is a mandatory violation of Article 22(1) and Section 47, and the seriousness of an allegation cannot cure a breach of a constitutional protection. Citing Pankaj Bansal, Prabir Purkayastha, Vihaan Kumar v. State of Haryana, (2025) 5 SCC 799, and Mihir Rajesh Shah, he submitted that written grounds must be served on the arrestee or his counsel at least two hours before the remand hearing, and that oral communication or case diary entries cannot substitute for actual written service. He asked that the petition be dismissed and the bail order affirmed.
A safeguard, not a key
The bench began by affirming the principle. Communication of grounds of arrest, it said, is a crucial constitutional and statutory safeguard under Article 22(1) and Section 47, designed so that an arrested person can promptly consult a lawyer, oppose remand and pursue remedies. There was no dispute about the principles in Pankaj Bansal, Prabir Purkayastha and Mihir Rajesh Shah. But the facts on record showed “substantial and effective compliance with this mandate of law”.
From there the Court turned to what a regular bail application under Section 483 actually requires. The court deciding it must weigh the nature and gravity of the accusation, the severity of the punishment on conviction, the danger of the accused absconding or tampering with evidence, and the overarching impact on public interest and national security. A hyper-technical objection about the form or mode of communicating grounds of arrest, the judgment said, cannot be treated as a “self-executing, blanket key to unlock regular bail” that bypasses those core parameters.
Justice Varale then went through the record stage by stage. The two Section 8(1) notices had put the accused on notice of an investigation into unauthorised transmission of classified military data. At arrest, the specific factual basis, espionage and the transmission of photographs, videos and troop movements in Pokhran and Jaisalmer to foreign handlers, was communicated to him; the High Court itself had found as much from the case diary. The arrest memo at Annexure P-5, in the vernacular, set out the material in detail: that on the technical examination of his phone and his interrogation he was found to have been in WhatsApp contact with handlers of a Pakistani intelligence agency in exchange for money, and to have sent photographs and videos of strategic importance relating to the Indian Army along with information on army movements. It recorded the date and time of arrest, the activities constituting the alleged offences, the identity of the arresting officer, Sub-Inspector Chaitanya Prakash, and that the accused was informed of his constitutional rights. A personal search had yielded Rs 430 in cash and a copy of the Section 8 notice, both deposited in the malkhana and made part of the record.
The Court also explained why the brother was informed by phone rather than in writing. The arrest took place at the Special Police Station at Jhalana Mahal, Jaipur, while the accused lived in Village Nedan, Tehsil Pokaran, District Jaisalmer. The only practicable way of promptly informing his family was by telephone, and the arresting officer could not have obtained the brother’s signature on a written intimation; the call was duly recorded in the memo. At remand the next day, counsel opposed police custody on the merits and raised no objection about grounds, and the Magistrate recorded a specific finding that the accused appeared to have been apprised of them.
The prejudice test from Sri Darshan
The governing principle, the Court held, is the prejudice-oriented test laid down in State of Karnataka v. Sri Darshan. The judgment quoted that decision at length: while the requirement to communicate grounds is mandatory, the consistent judicial approach has been to ask whether a procedural lapse caused demonstrable prejudice or denied a fair opportunity to defend. “The mere absence of written grounds does not ipso facto render the arrest illegal”, that decision said. In Sri Darshan the Karnataka High Court had treated the lack of written, individualised grounds as decisive while overlooking the gravity of a Section 302 IPC charge and the existence of a prima facie case; the Supreme Court held there that where the arrest memos and remand records showed the accused knew the reasons for arrest, were legally represented from the outset and applied for bail promptly, the irregularity was at best a curable defect that could not by itself warrant bail, and that reliance on Pankaj Bansal and Prabir Purkayastha was misplaced because those cases turned on different facts and statutory contexts.
The bench also drew on Kasireddy Upender Reddy, which explained the object of the rule by reference to Vihaan Kumar: the arrested person must learn the grounds so that he can seek bail, move a habeas corpus petition and prepare his defence in time. For Article 22(1), the authorities need not give full details of the offence; the information must be sufficient for the person to understand why he has been arrested, somewhat like the charge framed for trial.
Applied here, the record showed that Jhabra Ram was fully aware of the grounds of his apprehension and was effectively represented at remand. The substantive mandate of Article 22(1) had been met and no prejudice shown. The constitutional framework, the Court held, requires that an arrestee be informed of the grounds but does not insist on written communication as an indispensable formality regardless of the circumstances; absent demonstrable prejudice or denial of an opportunity to defend, a defect in the mode of service cannot by itself invalidate detention or entitle the accused to regular bail, more so where grave allegations of espionage affecting national security and sovereign integrity are involved.
The High Court’s error
The High Court, the bench concluded, had treated an alleged procedural irregularity as an automatic ground for bail while completely ignoring the gravity of the offences under Sections 3 and 9 of the Official Secrets Act and Sections 152 and 238(b) of the BNS, and the material collected in the investigation. It was not justified in releasing the accused, and its order could not be sustained in law. The Court was careful to add that it expressed no opinion on the merits of the allegations; its observations were confined to the appeal for cancellation of bail and would have no bearing on the trial.
Order
Leave was granted and the appeal allowed. The High Court’s judgment and order of 18 May 2026 in S.B. Criminal Miscellaneous Bail Application No. 4778 of 2026 is set aside, and the regular bail granted to Jhabra Ram stands cancelled. He must surrender before the trial court or the investigating agency within two weeks of 28 October 2026; if he does not, the State of Rajasthan is to take him into custody forthwith in accordance with law. Pending applications stand disposed of.