Those who feel called upon to deprive other persons of their personal liberty in the discharge of what they conceive to be their duty, must strictly and scrupulously observe the forms and rules of the law.1Article 22(2) of the Constitution of India embodies a rule which is very vital and fundamental for safeguarding the liberty of a person. It states that, every person who is arrested...
Those who feel called upon to deprive other persons of their personal liberty in the discharge of what they conceive to be their duty, must strictly and scrupulously observe the forms and rules of the law.1
Article 22(2) of the Constitution of India embodies a rule which is very vital and fundamental for safeguarding the liberty of a person. It states that, every person who is arrested and detained in custody shall be produced before the nearest Magistrate within a period of twenty- four hours of such arrest excluding the time necessary for the journey from the place of arrest to the court of the Magistrate and no such person shall be detained in custody beyond the said period without the authority of a Magistrate.
Section 58 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (for short 'the BNSS'), corresponding to Section 57 of the Code of Criminal Procedure, 1973 (for short 'the Code'), embodies the same rule. It is significant that the words “whether having jurisdiction or not” are newly incorporated in Section 58 of the BNSS. The addition of the above words in the provision makes it consonant with Article 22(2) of the Constitution of India.
A momentous verdict
What is the consequence of infringement or violation of Article 22(2) of the Constitution of India? The recent verdict of the Supreme Court, in Directorate of Enforcement v. Subhash Sharma,2 gives a clear answer to this question.
In the above case, a Look Out Circular (LOC) had been issued against the accused at the instance of the Directorate of Enforcement (ED). By executing the LOC, the Bureau of Immigration detained the accused at the Airport and his physical custody was taken over by the ED from the Bureau of Immigration at 11.00 hours on 5th March, 2022. Thereafter, at 01.15 hours on 6th March 2022, an arrest memo was prepared by ED and the accused was produced before the Court at 3 p.m. on 6th March, 2022. The Supreme Court noticed that, the accused was not produced before the nearest Magistrate within 24 hours from 11.00 a.m. on 5th March, 2022. In such circumstances, it was held as follows:
“Therefore, the arrest of the respondent is rendered completely illegal as a result of the violation of clause 2 of Article 22 of the Constitution of India. Thus, the continuation of the respondent in custody without producing him before the nearest Magistrate within the stipulated time of 24 hours is completely illegal and it infringes fundamental rights under clause 2 of Article 22 of the Constitution of India. Therefore, his arrest gets vitiated on completion of 24 hours in custody. Since there is a violation of Article 22(2) of the Constitution, even his fundamental right to liberty guaranteed under Article 21 has been violated. …….. Once a Court, while dealing with a bail application, finds that the fundamental rights of the accused under Article 21 and Article 22 of the Constitution of India have been violated while arresting the accused or after arresting him, it is the duty of the Court dealing with the bail application to release the accused on bail. The reason is that the arrest in such cases stands vitiated. It is the duty of every Court to uphold the fundamental rights guaranteed under Article 21 and Article 22 of the Constitution. Therefore, when arrest is illegal or is vitiated, bail cannot be denied on the grounds of non - fulfilment of twin tests under clause (ii) of sub-section (1) of Section 45 of PMLA”.
The above verdict of the Supreme Court can be considered as a momentous decision for many reasons. In the first place, it unhesitatingly upholds the right to personal liberty, a sacred and cherished fundamental right guaranteed under the Constitution of India. In the second place, the verdict makes it clear that, when the arrest is illegal or is vitiated, bail cannot be denied on the ground of non-fulfilment of any special conditions prescribed in a special statute. In the third place, the decision removes the lingering doubt, if any, in the minds of the courts on the question, whether illegality of arrest can be the sole ground for granting bail. In the fourth place, the judgment is short and simple. The judgment is drafted in simple language but the message given is loud and clear.
The precedents
In the case of Madhu Limaye,3 the Apex Court had held that, once it is shown that the arrest made by the police officers was illegal, it would be necessary for the State to establish that at the stage of remand the Magistrate directed detention of the accused in jail custody after applying his mind to all relevant matters.
In the case of Khatri,4 the Supreme Court had occasion to remind the authorities concerned that the constitutional and legal requirement to produce an arrested person before a Judicial Magistrate within 24 hours of the arrest must be scrupulously observed.
In the celebrated decision in Arnesh Kumar,5 it has been held that, before a Magistrate authorises detention of a person under Section 167 of the Code, he has to be first satisfied that the arrest made is legal and in accordance with law and all the constitutional rights of the person arrested are satisfied. If the arrest effected by the police officer does not satisfy the requirements of Section 41 of the Code, Magistrate is duty bound not to authorise his further detention and release the accused. It has been held that, when an accused is produced before the Magistrate, the police officer effecting the arrest is required to furnish to the Magistrate, the facts and the reasons for arrest and the Magistrate, in turn, has to be satisfied that the condition precedent for arrest under Section 41 of the Code has been satisfied and it is only thereafter that he will authorise the detention of an accused. The Magistrate before authorising detention will have to record his own satisfaction, may be in brief, but the said satisfaction shall be reflected in his order. The Supreme Court reiterated that, when a suspect is arrested and produced before a Magistrate for authorising detention, the Magistrate has to address the question whether specific reasons have been recorded for arrest.
Reiterating the requirements of Arnesh Kumar, the Supreme Court, in the case of Gautam Navlakha,6 has held that, the Magistrate should be alive to the need to preserve the liberty of the accused guaranteed under law even in the matter of arrest and detention, before he orders remand.
In the case of Pankaj Bansal,7 the Supreme Court had held that, when a person is arrested on accusation of committing an offence under the Prevention of Money Laundering Act, 2002 the Directorate of Enforcement shall furnish him a copy of the written grounds of arrest, as a matter of course and without exception. The Apex Court had held that, merely reading the grounds of arrest to the arrested person, is not adequate to fulfil compliance with the mandate of Article 22(1) of the Constitution. It was further held that, the consequence of non- compliance with the requirement of communicating the grounds of arrest in writing to the arrested person is that the arrest itself becomes invalid and illegal, paving the way for release of such person from custody.
In the case of Prabir Purkayastha,8 the Supreme Court has reiterated the necessity of due compliance of the constitutional provisions and the rules of procedure on curtailing the liberty of a person. The Apex Court had held that the requirement of informing the arrested person the grounds of arrest in writing is mandatory when a person is arrested in a case registered under the provisions of the Unlawful Activities (Prevention) Act, 1967. The Supreme Court had held that, the right to be informed about the grounds of arrest flows from Article 22(1) of the Constitution of India and any infringement of this fundamental right would vitiate the process of arrest and remand. The judgment in the case of Prabir Purkayastha also gives an indication that, whatever be the offence, the grounds of arrest have to be communicated to the accused in writing.
Conclusion
There is a practice of recording the arrest of a person at the convenience of the investigating officer, many hours or days after the time/date of taking a person into actual custody. Recording the arrest of a person at a convenient time, making it appear that his production before the Magistrate falls within 24 hours as stipulated under Article 22(2) of the Constitution, is a practice frequently adopted. Very often, the record of the time of arrest will not be an index to the actual time of arrest of a person. However, practically, a person has to be treated as arrested at the time when he is formally taken into custody by means of any action or words restraining his movement.9 Section 43 of the BNSS (Section 45 of the Code) indicates that submission of a person to custody by any word or action of the police officer can be treated as arrest.
The verdict in Subhash Sharma gives a strong message that the practice of the investigating officers, recording the arrest of a person at their convenience, many hours or days after the time/date of taking a person into custody, making it appear that his production before the Magistrate falls within 24 hours as stipulated under Article 22(2) of the Constitution, cannot be accepted and it has to be deprecated.
Author is Former Judge, High Court of Kerala. Views Are Personal.
- Ram Narayan Singh v. State of Delhi: AIR 1953 SC 277.
- 2025 LiveLaw (SC) 137.
- AIR 1969 SC 1014.
- Khatri v. State of Bihar: AIR 1981 SC 928.
- Arnesh Kumar v. State of Bihar: AIR 2014 SC 2756.
- Gautam Navlakha v. National Investigation Agency: 2021 SCC OnLine SC 382.
- Pankaj Bansal v. Union of India: (2024) 7 SCC 576: 2023 SCCOnline SC 1244.
Prabir Purkayastha v. State (NCT of Delhi): (2024) 8 SCC 254: 2024 SCC Online SC 934.
Ashak Hussain v. The Assistant Collector of Customs: 1990 SCC OnLine Bom 3: 1990 Cri LJ 2201.