Supreme Court holds police who breach Article 22 cannot decide on re-arrest themselves, and orders the judgment sent to every DGP
Justices Ujjal Bhuyan and Atul S. Chandurkar strengthen the safeguards in Mihir Rajesh Shah, requiring a superior officer's endorsement, a Magistrate's permission and a departmental enquiry.
A man released by a Magistrate because the police had not given him written grounds of arrest was re-arrested on the strength of a fresh application moved the same day by the very officer who had made the illegal arrest. The Supreme Court has held that this cannot be done. Where an accused has been released for breach of Article 22(1) or Article 22(2) of the Constitution, the decision to take him back into custody must carry judicial imprimatur: the investigating agency must apply to the Magistrate, explain why the grounds were not furnished in the first place, and obtain the endorsement of the officer's immediate superior — who must simultaneously transfer the investigation and order a departmental enquiry. The judgment is to be circulated to every Director General of Police in the country.
Arrested on a Sunday, released on a Monday, re-arrested the same day
The appellant was arrested on 17 May 2026 at about 7:54 a.m. in connection with a first information report registered four days earlier at the Mataur Police Station in SAS Nagar, Punjab, under Sections 64, 65(1) and 351 of the Bharatiya Nyaya Sanhita, 2023 read with Section 6 of the Protection of Children from Sexual Offences Act, 2012. He was produced before the Judicial Magistrate In-Charge (Duty) at around noon the following day, on an application for one day's police remand.
The Magistrate did not grant it. She recorded that although the appellant had been arrested on 17 May and produced before her on 18 May, no written grounds of arrest had been provided to him. Applying Mihir Rajesh Shah v. State of Maharashtra, she held that the investigating agency had failed to comply with the mandate of law, that the non-furnishing of written grounds violated Article 22(1) of the Constitution read with Section 50(1) of the Code of Criminal Procedure, 1973 and Section 47 of the Bharatiya Nagarik Suraksha Sanhita, 2023, and that his arrest was rendered illegal. She directed his immediate release and said appropriate action should be taken against the officers at fault.
She also left a door open: if the agency found it necessary, it could move for remand or custody with the reasons and the necessity for it, after supplying the grounds of arrest in writing along with an explanation for the earlier non-supply.
On the same day, the same Station House Officer who had made the arrest without furnishing grounds, and who had moved the earlier remand application, moved a fresh application for custody. The grounds now furnished were that the accused had committed aggravated sexual assault on a girl of about sixteen who was his step-daughter, that the offence was heinous and carried a minimum of twenty years on conviction, and that custodial interrogation was required.
There was a second constitutional problem alongside the first. Arrested at 7:54 a.m. on 17 May and produced at about noon on 18 May, the appellant had been held beyond the twenty-four hours Article 22(2) permits. On that, the Punjab and Haryana High Court said he might take appropriate legal action against the defaulting police officials — leaving the remedy to him to pursue. By its order of 29 May 2026 the High Court dismissed his petition, holding that the investigating agency could not be prohibited or restrained from seeking warrants of arrest, from re-arresting him, or from seeking his custody or remand.
The question, and why it is not the default bail question
The Supreme Court framed the issue as one of wide constitutional import: can an accused who has suffered breach of both clauses (1) and (2) of Article 22 be re-arrested for the same offence, and if so in what circumstances, in what manner, and following what procedure.
It first cleared away an analogy that might have disposed of the case the other way. There is a line of authority on whether an accused released on default bail, for failure to file the charge-sheet within the statutory period, may be arrested or re-arrested; the answer there is yes. The Bench held there is a fundamental difference. In those cases the question concerned the consequence of a statutory default. Here the Court was dealing not only with the violation of the appellant's statutory rights but with his fundamental rights under both clauses of Article 22, and both infringements occurred at the threshold of arrest rather than at a later stage of the investigation.
What the earlier decisions had left open
The Bench worked through the recent line on grounds of arrest before adding to it, and the sequence explains why a further judgment was needed at all.
Mihir Rajesh Shah is the governing authority, and it had already done two things: it declared that the failure to furnish written grounds of arrest vitiates the arrest, and it set out a course of action by which an investigating agency that still wants custody applies to the Magistrate, giving reasons for re-arrest and an explanation for the earlier non-supply, to be decided preferably within a week. The Bench recorded that it was bound by that ratio, endorsed the course of action, and set out to strengthen the safeguards.
Two later decisions were considered and found not to answer the present question. In one, the State of Maharashtra was before the Court on a related issue; in the other the Bench had made a passing observation on re-arrest. The Court held that whatever those decisions may have said, they did not decide the point now at hand, and that a passing observation cannot be read as laying down the procedure to be followed where a constitutional provision has been breached at the threshold of arrest.
The Court also went back to Khatri, the early decision establishing that a violation of the right to personal liberty can sound in compensation as a public law remedy, which is what underlies the direction on Article 22(2) later in the judgment.
The procedure the Court laid down
The Bench recorded that it was bound by the ratio in Mihir Rajesh Shah, endorsed the course of action declared in that judgment, and then set out to strengthen the safeguards it had introduced.
Where an accused has been released for breach of Article 22(1) and the investigating agency still considers custodial interrogation necessary to further the investigation, it must file an application before the Magistrate for custody. That application must state the reasons for re-arrest and the necessity for it. It must contain an explanation for the non-supply of the grounds of arrest at the first instance. And it can only be moved after the grounds of arrest have actually been furnished to the accused.
The requirement the Bench added to that scheme is an endorsement. To rule out any foul play or collusion, the application must carry the endorsement of the immediate superior authority. The reasoning is explicit about why: the superior should know that the officer concerned has committed an unbecoming act of violating a constitutional provision, for which remedial steps will have to be taken. On receipt of the application with that endorsement, the Magistrate is to decide it expeditiously — preferably within a week of submission, as directed in Mihir Rajesh Shah — adhering to the principles of natural justice.
The principle behind the machinery is stated in a single sentence. Once there is a breach of Article 22(1), the power to re-arrest must not be left to the discretion of the very same authority that violated the provision of the Constitution; it must have judicial imprimatur. Only where the Magistrate is satisfied that for bona fide reasons the grounds of arrest could not be furnished at the first instance but were furnished after release, and is further satisfied that the accused needs to be re-arrested, may he permit it.
The administrative consequence runs in parallel. A superior authority presented with an application seeking his endorsement for the custody of an accused released for violation of Article 22(1) shall hand over the investigation of the case to another officer, and shall further direct a departmental enquiry for such a serious lapse. If the enquiry culminates in an adverse finding against the erring officer or officers, it entails departmental action with an entry in the service book.
On Article 22(2), the Bench held that the same procedure applies where that clause has been breached and the agency still wants custody after the accused has been released for the constitutional violation. It added a remedy the High Court had declined to consider: depending on the facts and circumstances, the High Court may direct payment of compensation as part of the public law remedy for a violation of Article 22(2), leaving the accused at liberty to pursue his remedy under private civil law as well.
Why gravity made no difference
The judgment closes with a passage on how constitutional provisions are to be read, and it is directed at the argument that the seriousness of the allegation ought to weigh in the balance.
A constitutional provision cannot be interpreted in a vacuum, the Bench held, nor can its interpretation be left to imponderables in the form of ifs and buts. The Constitution rests on basic principles standing well above the statutory threshold, and a violation of it cannot be countenanced but must be dealt with strictly. That obligation does not depend on the nature or gravity of the offence; it encompasses all offences within its sweep and cannot be read restrictively.
For that proposition the Court reached back to Prabhu Dayal Deorah v. District Magistrate, Kamrup, a three-judge Bench decision given in the context of preventive detention. The gravity of the evil to the community resulting from anti-social activities, that judgment held, can never furnish an adequate reason for invading the personal liberty of a citizen except in accordance with the procedure established by the Constitution and the laws; and where such a procedure is prescribed, it is the duty of the court to ensure that it is rigorously observed — however strange that might sound to some ears.
A second safeguard that is administrative, not judicial
The requirement that the superior officer transfer the investigation and order a departmental enquiry deserves separate notice, because it is the part of the scheme that operates whatever the Magistrate decides.
The judicial check answers one question: may this accused be taken back into custody. The administrative check answers a different one: what happens to the officer who put the court in that position. The Bench tied them together by making the endorsement the trigger for both — the superior cannot sign the application without, by the same act, taking the case away from the officer and setting an enquiry in motion, with departmental action and an entry in the service book to follow if the enquiry goes against him.
That design closes the gap that made this case possible. An officer who knows that asking for custody after an illegal arrest means handing over his file and facing an enquiry has a reason to furnish the grounds of arrest at the outset, which is what the Constitution required of him in the first place.
Order
The Court set aside and quashed the High Court's order of 29 May 2026 as well as the observations of the Magistrate dated 18 May 2026.
It held and directed that in the event the respondents take the view that custodial interrogation of the appellant is necessary, they will have to follow the mandate of Mihir Rajesh Shah read with the paragraphs of this judgment setting out the application, endorsement, enquiry and Magistrate's permission requirements, as well as the direction extending the same procedure to breaches of Article 22(2).
The Bench clarified that it had expressed no opinion on the merits of the accusation against the appellant.
Finally, it directed that a copy of the judgment and order be circulated to all Director Generals of Police of the States and Union Territories, as well as to the Registrar Generals of the High Courts and the Directors of the State Judicial Academies. The appeal was allowed.
The choice of recipients tracks the three failures the case exposed. The police forces are told because the breach originated with an arresting officer and the remedy now runs through his superior. The High Courts are told because the High Court here treated the twenty-four-hour violation as a matter for the appellant to litigate on his own rather than as something the court should address. And the judicial academies are told because the Magistrate, having correctly found the arrest illegal and ordered release, went on to leave the door open to a fresh custody application in terms that the same officer used the same day — which is the gap the endorsement requirement is designed to close.
What the judgment does not do is prevent re-arrest. An accused released for a constitutional breach is not immunised from custody, and the Court was explicit that it had expressed no view on the allegations. The change is procedural and it is about who decides: the officer who broke the rule no longer controls whether its consequence is undone, the superior who must endorse the request is simultaneously obliged to take the investigation away from him and order an enquiry into his conduct, and the Magistrate decides whether the explanation for the original failure is bona fide.