Article 22(1) Of The Constitution Of India And Section 47 Of The BNSS: “Sri Darshan” Reflects A Balanced Approach

Article 22(1) of the Constitution of India states that, no person who is arrested shall be detained in custody without being informed, as soon as may be, of the grounds for such arrest. Section 47(1) of the Bharatiya Nagarik Suraksha Sanhita, 2023 (for short 'the BNSS'), corresponding to Section 50(1) of the Code of Criminal Procedure, 1973 (for short 'the Code'), provides that, every police officer or other person arresting any person without warrant shall forthwith communicate to him full particulars of the offence for which he is arrested or other grounds for such arrest.

The development of law

In Pankaj Bansal v. Union of India,¹ the Supreme Court has held that, the accused has a constitutional and statutory right to be informed of the grounds for arrest which are compulsorily recorded in writing by the authorised officer under Section 19(1) of the Prevention of Money Laundering Act, 2002 (PMLA). It was held that, copy of such written grounds of arrest should be furnished to the arrested person as a matter of course and without exception.

In the decision in Prabir Purkayastha v.State (NCT of Delhi),² the Apex Court has held that, any person arrested for allegation of commission of offences under the provisions of the Unlawful Activities (Prevention) Act, 1967 (UAPA) or for that matter any other offence(s) has a fundamental and a statutory right to be informed about the grounds of arrest in writing and a copy of such written grounds of arrest have to be furnished to the arrested person as a matter of course and without exception at the earliest. It was also 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 words “or for that matter any other offence(s)” occurring in the above decision created a lot of confusion as to the requirement of communicating the grounds for arrest in writing to the accused in cases other than under the PMLA and UAPA. Most of the High Courts in the country had taken the view that communicating the grounds for arrest in writing to the accused is mandatory in cases other than under the PMLA and UAPA, that is, in case of offences under other special statutes and also the Indian Penal Code/Bharatiya Nyaya Sanhita.

Subsequently, in Vihaan Kumar v. State of Haryana,³ the Supreme Court has held that, as far as Article 22(1) of the Constitution is concerned, compliance can be made by communicating sufficient knowledge of the basic facts constituting the grounds of arrest to the person arrested. The grounds should be effectively and fully communicated to the arrestee in the manner in which he will fully understand the same and therefore, the grounds of arrest must be informed in a language which the arrestee understands. It was also held that, when a person is arrested without a warrant, and the grounds of arrest are not informed to him, as soon as may be, after the arrest, it will amount to violation of his fundamental right guaranteed under Article 21 of the Constitution as well and the arrest will be rendered illegal. On the failure to comply with the requirement of informing grounds of arrest as soon as may be after the arrest, the arrest is vitiated. Once the arrest is held to be vitiated, the person arrested cannot remain in custody even for a second.

With regard to communication of the grounds for arrest in writing, in Vihaan Kumar, the Supreme Court has only stated that, there is no harm if the grounds of arrest are communicated in writing but it may not be practicable to do so in every case. However, it was pointed out that, if such a course is followed, the controversy about the non-compliance will not arise at all.

In Ashish Kakkar v. U.T. of Chandigarh,⁴ only an arrest memo in the prescribed format was furnished to the accused, which was meant to be given to him by way of an intimation. In the arrest memo, the name of the accused and the place of the arrest were shown. Additionally, it was also written in the arrest memo that the arrest was made based upon the statement of a co-accused. The Apex Court observed that, the said arrest memo cannot be construed as grounds of arrest, as no other worthwhile particulars had been furnished to the arrested person. It was held that it was a clear case of non-compliance with the mandate under Section 50 of the Code which has been introduced to give effect to Article 22(1) of the Constitution of India. Accordingly, it was ordered that the accused shall be set at liberty.

Again, in Kasireddy Upender Reddy v.State of Andhra Pradesh,⁵ the Supreme Court has held that, for the purposes of Article 22(1) of the Constitution, it is not necessary for the authorities to furnish full details of the offence to the arrested person. However, the information should be sufficient to enable the arrested person to understand why he has been arrested. It was observed that, the grounds to be communicated to the arrested person should be somewhat similar to the charge framed by the Court for the trial of a case.

In the case of Shahina v. State of Kerala,⁶ a Single Bench of the High Court of Kerala has culled out ten principles from the decisions of the Apex Court referred to above. With regard to communication of the grounds for arrest in writing, the High Court has only held that, the grounds for arrest must be communicated to the arrested person in such a manner that sufficient knowledge of the basic facts constituting the offence is imparted and communicated to him effectively in the language which he understands. It has been held that, the mode and method of communication must be such that the object of the constitutional safeguard is achieved.

Subsequently, in the case of Raashi Sanjay Tripathi v. Narcotics Control Bureau,⁷ a Division Bench of the High Court Kerala, had occasion to consider the issue in detail. It was a case in which a lady was arrested on the ground that she was found in possession of huge quantity of narcotic substance for the purpose of sale. In the habeas corpus petition filed by the daughter of the accused, it was contended by the petitioner that the requirement under Article 22(1) of the Constitution, that the grounds of arrest must be communicated to the arrestee, had not been complied with thereby rendering the arrest and the consequent remand of the accused illegal. The Division Bench found that the arrest memo revealed that the grounds of arrest were communicated to the accused. In the arrest memo, an endorsement was seen made by the arrestee herself that she understood the reason for her arrest. Moreover, a signature, purportedly that of the arrestee, was there beneath the said endorsement. Therefore, the High Court took the view that the arrestee was duly informed of the grounds of her arrest as nothing had been brought to the notice of the Court that would suggest otherwise. The High Court also found that intimation regarding the arrest of the accused had been given to the mother of the arrestee. Though the writ petition was allowed on another ground, the High Court found that the contention of the writ petitioner that the grounds of arrest were not communicated to the arrestee was without merit and cannot be sustained.

The approach in Sri Darshan's case

Recently, in State of Karnataka v. SriDarshan,⁸ the Supreme Court has clarified that, the constitutional and statutory framework mandates that the arrested person must be informed of the grounds of arrest – but neither provision prescribes a specific form or insists upon written communication in every case and substantial compliance with this requirement is sufficient, unless demonstrable prejudice to the accused is shown.

Sri Darshan clarifies that communication of written and individualised grounds are not an inflexible requirement in all circumstances. While Section 50 Cr.P.C (Section 47 of the BNSS) is mandatory, the consistent judicial approach has been to adopt a prejudice-oriented test when examining alleged procedural lapses. The Apex Court has categorically held that, mere absence of written grounds does not ipso facto render the arrest illegal, unless it results in demonstrable prejudice or denial of a fair opportunity to defend.

In Sri Darshan,the arrest memos and the remand records had clearly reflected that the accused involved in the case were made aware of the reasons for their arrest. They were legally represented from the outset and applied for bail shortly after arrest, evidencing an immediate and informed understanding of the accusations against them. No material was produced by the accused to establish that any prejudice was caused due to the alleged procedural lapses. In such circumstances, the Apex Court held that, in the absence of demonstrable prejudice, irregularity in procedure is, at best, a curable defect and cannot, by itself, warrant release of the accused on bail. The Apex Court has reiterated that, procedural lapses in furnishing grounds of arrest, absent prejudice, do not ipso facto render custody illegal or entitle the accused to bail.

Conclusion

When a plea is made by the accused that his arrest is vitiated on the ground of non-compliance with the requirements under Article 22(1) of the Constitution of India and Section 47(1) of the BNSS, the Court cannot afford to take a mechanical or hyper-technical approach. The Court has the obligation to ensure that the fundamental rights of the accused are not infringed. At the same time, the Court has the duty to strike a balance between the right of the individual to personal liberty and the right of the police to arrest an accused person and to conduct free, fair and effective investigation. On one hand, the Court has to prevent unjustified detention of an accused in custody. On the other hand, the Court has to ensure that free and fair investigation is not hampered in any manner. The Court, while adhering to the fundamental principles of criminal jurisprudence, should always try to maintain a fine and delicate balance between the need for a fair and proper investigation and the liberty of the accused. The decision in Sri Darshan reflects a balanced approach being taken by the Supreme Court in this regard, in holding that the Courts have to adopt a prejudice-oriented test when examining alleged procedural lapses, and that mere absence of written grounds of arrest does not ipso facto render the arrest illegal, unless it results in demonstrable prejudice or denial of a fair opportunity to defend.

The significant aspect of the verdict of the Supreme Court in Sri Darshan is that it categorically holds and clarifies that the requirement under Article 22(1) of the Constitution would be satisfied (in cases other than under the PMLA and UAPA), if the accused is made aware of the grounds for arrest in substance, even if not conveyed in writing. By holding that procedural lapses in furnishing the grounds of arrest, in the absence of prejudice, do not ipso facto render custody illegal or entitle the accused to bail, the verdict in Sri Darshan gives a strong message to other courts, that a prejudice-oriented test has to be adopted when examining alleged procedural lapses and that a hyper-technical approach shall not be made in such matters.

Author is Former Judge, High Court of Kerala. Views Are Personal

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1. 2023 LiveLaw (SC) 844

2. 2024 LiveLaw (SC) 376
3. 2025 LiveLaw (SC) 169

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6. 2025 SCC OnLine Ker 4556.
7. 2025 SCC OnLine Ker 6175.
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