Police cannot clear their own re-arrest after breaching Article 22, holds Supreme Court
A Division Bench rules that once an arrest is voided for want of written grounds, only a magistrate can permit re-arrest, on an application endorsed by a superior officer.
When a police officer arrests someone without giving written grounds of arrest, the arrest is unconstitutional and the person must be released. The harder question is what happens next: can the same officer simply arrest again? On 21 September 2026, the Supreme Court answered no. In Jaskaran Jeet Singh Deol v. State of Punjab, a Division Bench of Justice Ujjal Bhuyan and Justice Atul S. Chandurkar held that once an accused has been released for a breach of Article 22 of the Constitution, the decision to re-arrest cannot rest with the agency that committed the breach. It requires a reasoned application to a magistrate, endorsed by the officer’s immediate superior, and a judicial order. The Court quashed a Punjab and Haryana High Court order that had left the police free to re-arrest, and directed its judgment be circulated to every Director General of Police in the country.
An arrest that collapsed within a day
The case arose from a first information report lodged on 13 May 2026 at the Mataur police station in SAS Nagar district, Punjab. The informant alleged that his wife had left his company and begun living with the appellant from about October–November 2024, taking both of their daughters with her, and that his elder daughter — the alleged victim, a child — had returned to him on 9 May 2026 and described abuse by the appellant. The FIR was registered as FIR No. 73/2026 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.
The appellant was arrested on 17 May 2026 at about 07:54 am. He was produced before the Judicial Magistrate In-Charge (Duty) the next day, 18 May 2026, at around noon, when the police sought one day’s remand. Two things had gone wrong by then, and both were constitutional rather than merely procedural.
The first was that no written grounds of arrest had been furnished to him. The magistrate recorded this, referred to this Court’s decision in Mihir Rajesh Shah v. State of Maharashtra, and held that the investigating agency had failed to comply with the requirement of supplying written grounds — a violation of Article 22(1) read with Section 50(1) of the Code of Criminal Procedure, 1973 and Section 47 of the Bharatiya Nagarik Suraksha Sanhita, 2023. The arrest being rendered illegal, the magistrate directed his immediate release and said action should be taken against the officers at fault.
The second was the interval itself. The appellant had been arrested at 07:54 am on 17 May and produced only around noon on 18 May, beyond the twenty-four hours that Article 22(2) allows for production before the nearest magistrate.
The magistrate did not, however, close the door on the investigation. She clarified that if the agency found it necessary, it could move an application for remand or custody, setting out the reasons and the necessity, after supplying written grounds of arrest along with an explanation for not having supplied them earlier; and that her order would not preclude the agency from proceeding in accordance with law and in strict compliance with the statutory and constitutional mandate.
What the High Court left open
The appellant moved the Punjab and Haryana High Court in CRM-M-31323-2026 seeking protection against being re-arrested for the same offence. By its order dated 29 May 2026, the High Court dismissed the petition, holding that the investigating agency could not be prohibited or restrained from seeking warrants of arrest against him, from re-arresting him, or from seeking his custody or remand.
On the detention beyond twenty-four hours, the High Court’s answer was to leave the appellant to his own devices: he could take appropriate legal action against the defaulting police officials. But it added a proposition that became the pivot of the appeal — that because the appellant stood accused of a serious and grave offence, the agency could not be restrained from re-arresting him. The Supreme Court framed the issue bluntly: is that the correct legal proposition?
A question of wide constitutional import
The Bench described the appeal as raising an issue of wide constitutional import, and set out the question it had to answer: can an accused who has suffered a 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 by what procedure?
It is worth being precise about what was and was not in dispute. The Court was not asked to decide whether the allegations were true, and it expressly said it was expressing no opinion on the merit of the accusation. Nor was it reconsidering whether an arrest without written grounds is bad — that follows from Mihir Rajesh Shah, by which the Bench said it was bound. The live question was the sequel: who controls the re-arrest.
What was already settled about the grounds of arrest
To see what the Court added, it helps to set out what Mihir Rajesh Shah had already laid down, which this judgment reproduces. That decision concluded that the constitutional mandate of informing an arrestee of the grounds of arrest is mandatory in all offences under all statutes, including offences under the Indian Penal Code, 1860, now the Bharatiya Nyaya Sanhita, 2023. The grounds must be communicated in writing, in a language the arrestee understands.
Where the arresting officer is unable to communicate the grounds in writing on or soon after arrest, they are to be given orally, and then communicated in writing within a reasonable time — in any case at least two hours before the arrestee is produced for remand proceedings before the magistrate. And if that schedule is not adhered to, the arrest and the subsequent remand are rendered illegal, and the person is at liberty to be set free.
That earlier judgment had also sketched what follows on release: an application for remand or custody, if required, moved with the reasons and necessity, after supplying the grounds of arrest in writing with an explanation for the earlier non-supply, to be decided by the magistrate expeditiously and preferably within a week, consistent with natural justice. The present judgment endorses that course and then tightens it.
The procedure police must now follow
Endorsing the course of action declared in Mihir Rajesh Shah, the Court went further, saying it wished to strengthen the safeguards that judgment had introduced. It laid down what an investigating agency must do if, after an accused has been released for a breach of Article 22(1), it still believes custodial interrogation is necessary.
The agency must file an application before the concerned magistrate for custody, stating the reasons for re-arrest and the necessity for it. That application must also contain an explanation for the failure to supply the grounds of arrest in the first instance. Critically, it can only be moved after the grounds of arrest have been furnished to the accused — the defect must be cured before permission is sought, not alongside it.
The application must additionally carry the endorsement of the officer’s immediate superior authority. The Court explained the reason for this in terms that leave little room for treating it as a formality: the endorsement is required to rule out foul play or collusion, and because the superior authority 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 receiving such an application with the endorsement, the magistrate is to decide it expeditiously — preferably within a week of its submission, as directed in Mihir Rajesh Shah — while adhering to the principles of natural justice.
The consequence for the officer who breached
The requirement of a superior’s endorsement is not only a check on the re-arrest. It is also the trigger for consequences against the officer, and this is the part of the judgment likely to be felt most immediately inside police stations.
On the administrative side, the Court directed that the superior authority, when presented with an application seeking his endorsement for custody of an accused who has been 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 police officer or officers, it would entail departmental action, with an entry in the service book of the officer concerned.
The effect is that an officer who arrests without furnishing written grounds does not merely lose the arrest. He loses carriage of the investigation, faces a departmental enquiry as a matter of course rather than discretion, and risks a permanent notation on his service record. The judgment thus converts what had often been treated as a curable procedural slip into a documented professional consequence.
Why the violator cannot be the decider
Underlying the checklist is a single principle the Court was at pains to state. 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 constitutional provision. “It must have the judicial imprimatur.” Only where the magistrate is satisfied that the grounds of arrest could not, for bona fide reasons, be furnished at the first instance, and is further satisfied that the accused needs to be re-arrested, may an order permitting re-arrest follow.
The Bench also distinguished a line of cases the State had leaned on, concerning re-arrest after default bail — principally Sri Darshan, a two-Judge Bench decision of 14 August 2025 arising from a Karnataka High Court order enlarging accused persons on bail, and Sonam Raghuvanshi. Where an accused is released on default bail because the chargesheet was not filed within the statutory period, this Court has held that he may be arrested again. But that, the judgment reasoned, is a different proposition: default bail involves the breach of a statutory right arising from a later failure to complete the investigation in time, whereas this case involved infringement of fundamental rights under clauses (1) and (2) of Article 22, both infringements occurring at the very threshold of arrest.
The distinction does real work. It means the relative permissiveness of the default bail line cannot be carried across to constitutional breaches at the point of arrest, and that an agency cannot cite those cases as authority for simply arresting again after an Article 22 violation.
Article 22(2), and compensation as a public law remedy
Having dealt with clause (1), the Court turned to clause (2). It held that the same procedure must be followed where there is a breach of Article 22(2) and the agency still wants custody of the accused after his release for that constitutional violation. In other words, failing to produce a person within twenty-four hours carries the same consequence for re-arrest as failing to give him the grounds of his arrest.
The Court added a remedy on top. Depending on the facts and circumstances of the case, the High Court may direct payment of compensation as part of the public law remedy where Article 22(2) has been violated, leaving the accused at liberty to pursue his remedy under private civil law as well. The Bench discussed Bhim Singh, the case of a Jammu and Kashmir legislator arrested in September 1985, among the authorities on what follows a breach of Article 22(2).
Gravity of the offence is no answer
The most consequential passage answers the High Court’s reasoning directly. A constitutional provision, the Court said, cannot be interpreted in a vacuum, nor left to imponderables in the form of ifs and buts. Violation of the Constitution cannot be countenanced and has to be dealt with strictly. And then the sentence that disposes of the seriousness argument: “It is not dependent on the nature or gravity of the offence”, encompassing within its sweep all offences, and incapable of being read restrictively.
The Bench reinforced the point by recalling Prabhu Dayal Deorah v. District Magistrate, Kamrup, a three-Judge Bench decision from 1974 arising in the context of preventive detention, on the theme that the gravity of the evil to the community from anti-social activities cannot by itself justify departure from constitutional safeguards. The practical effect is that a POCSO case and a petty offence stand on the same footing so far as the consequences of an Article 22 breach are concerned.
Order
The Court set aside and quashed the High Court’s order dated 29 May 2026 and also the impugned observations of the magistrate dated 18 May 2026. It held and directed that if the respondents take the view that custodial interrogation of the appellant is necessary, they must follow the mandate of Mihir Rajesh Shah read with paragraphs 24 to 25.1 of this judgment and with paragraph 36, which extends the procedure to Article 22(2) breaches. The Court clarified that it had expressed no opinion on the merit of the accusation against the appellant. The appeal was allowed.
Finally, the Bench directed that a copy of the judgment be circulated to all Directors General of Police of the States and Union Territories, to the Registrars General of the High Courts, and to the Directors of the State Judicial Academies — an instruction that takes the ruling well beyond the parties and into police station and magistrate practice across the country.