The Supreme Court's two-judge bench's recent judgment in State of Rajasthan v. Jabhra Ram 2026 LiveLaw (SC) 1097, holding that furnishing written grounds of arrest is not indispensable where there has been substantial compliance with Article 22(1) of the Constitution before the arrest, resulting in no prejudice to the accused, raises an important question concerning the manner in which the grounds of arrest must be communicated. Although the judgment does not expressly overrule the earlier decisions of equivalent strength in Pankaj Bansal, Prabir Purkayastha, Vihaan Kumar and Mihir Rajesh Shah, which recognised the requirement of communicating the grounds of arrest in writing, its reasoning brings into focus the divergent judicial approaches towards the mode and timing of such communication.
The tension lies between two approaches adopted by the Court, i.e., whether furnishing written grounds of arrest is an indispensable procedural requirement, non-compliance with which vitiates the arrest and subsequent remand; or whether the constitutional obligation can be satisfied through effective communication of the grounds, i.e., recording of arrest grounds in a case diary, arrest memo, notice of arrest, etc., with courts examining the surrounding circumstances and prejudice caused by any procedural defect.
Earlier position on communication of grounds of arrest
Declaring the arrest under the Prevention of Money Laundering Act, 2002 (PMLA) to be illegal for want of furnishing of written grounds of arrest, the Supreme Court in Pankaj Bansal (2023) held that mere reading out the arrest grounds to an accused would not suffice the mandate of Article 22. The Court held that a copy of the written grounds of arrest must be furnished to the arrested person as a matter of course and without exception.
The Court identified two reasons for requiring written communication. First, it avoids disputes between the arrested person and the investigating agency over whether the grounds were actually communicated. Second, it enables the accused to understand the basis of arrest, consult legal counsel and effectively seek bail.
The proposition laid down in Pankaj Bansal that grounds of arrest must be supplied to the accused in writing was extended in Prabir Purkayastha (2024) to also make it applicable to the cases registered under the Unlawful Activities (Prevention) Act, 1967 (UAPA).
“…we have no hesitation in reiterating that the requirement to communicate the grounds of arrest or the grounds of detention in writing to a person arrested in connection with an offence or a person placed under preventive detention as provided under Articles 22(1) and 22(5) of the Constitution of India is sacrosanct and cannot be breached under any situation. Non-compliance of this constitutional requirement and statutory mandate would lead to the custody or the detention being rendered illegal, as the case may be.”, the Court observed in Prabir Purkayastha.
An important development thereafter came in Vihaan Kumar (2025), where the Supreme Court went on to hold that even the statutory restrictions regarding grant of bail would be rendered ineffective, the moment the arrest is vitiated due to lack of communication of grounds of arrest.
“Even if statutory restrictions on grant of bail exist, the statutory restrictions do not affect the power of the court to grant bail when violation of Article 21 and 22 of the Constitution is established.”, the Court observed in Vihaan Kumar. While acknowledging that there is no requirement under Article 22(1) to furnish a written ground of arrest, the Court, supporting Pankaj Bansal's suggestion, said that there's no harm in communicating the written grounds of arrest.
“In the case of Pankaj Bansal…This Court has suggested that the proper and ideal course of communicating the grounds of arrest is to provide grounds of arrest in writing. Obviously, before a police officer communicates the grounds of arrest, the grounds of arrest have to be formulated. Therefore, there is no harm if the grounds of arrest are communicated in writing. Although there is no requirement to communicate the grounds of arrest in writing, what is stated in paragraphs 42 and 43 of the decision in the case of Pankaj Bansal are suggestions that merit consideration. We are aware that in every case, it may not be practicable to implement what is suggested. If the course, as suggested, is followed, the controversy about the non-compliance will not arise at all. The police have to balance the rights of a person arrested with the interests of the society. Therefore, the police should always scrupulously comply with the requirements of Article 22.”, the Court observed in Vihaan Kumar.
Following Vihaan Kumar, the Supreme Court, in Kasireddy Upender Reddy v. State of Andhra Pradesh, 2025 LiveLaw (SC) 628, adopted a somewhat different approach. Rather than emphasising an inflexible requirement to furnish the grounds of arrest in writing, the Court focused on whether the manner in which such grounds were communicated was meaningful and sufficient to fulfil the constitutional objective underlying Article 22(1).
In Kasireddy, the arrest was effected pursuant to a warrant; thus, the Court held that there was no requirement to separately furnish written grounds of arrest to the arrestee, since the warrant of arrest itself communicated the basis for the arrest and fulfilled the requirement of informing the person of the grounds of arrest under Article 22(1). The judgment reinforced the distinction between the mandatory nature of the constitutional obligation and the mode of its compliance. The Court recognised written communication as the proper and ideal course, but not as an indispensable constitutional requirement in every circumstance.
The position on communicating written grounds of arrest was further strengthened in Mihir Rajesh Shah, where the Court adopted a formulation that went beyond the position articulated in Vihaan Kumar and the subsequent decision in Kasireddy. Instead of treating the requirement to furnish the written grounds of arrest as an ideal course, the Court deemed it to be a mandatory constitutional requirement in every case.
“To achieve the intended objective of the constitutional mandate of Article 22(1) of the Constitution of India, the grounds of arrest must be informed to the arrested person in each and every case without exception and the mode of the communication of such grounds must be in writing in the language he understands.”, the Court held in Mihir Rajesh Shah.
More recently, in Jaskaran Jeet Singh Deol v. State of Punjab 2026 LiveLaw (SC) 967, the Court endorsed Mihir Rajesh Shah, and went on to hold that disciplinary proceedings should be initiated against a police officer who arrested a person without furnishing the grounds of arrest in writing.
“…it is Mihir Rajesh Shah which sums up the correct legal position and lays down the correct law which is binding. It is in tune with the consistent line of jurisprudence developed over the years by this Court… The grounds of arrest must be in writing and in a language which is understood by the accused. A copy of such written grounds of arrest has to be furnished to the arrested person as a matter of course and without exception. An accused has a fundamental and statutory right to be informed about the grounds of his arrest in writing and a copy of such written grounds of arrest has to be furnished to the arrested person as a matter of course and without exception at the earliest. Any attempt to encroach upon the fundamental rights guaranteed under Article 22(1) of the Constitution has to be frowned upon by the courts and dealt with strictly. It would vitiate the process of arrest and remand. Such a fundamental right being sacrosanct, cannot be breached under any situation. Any breach or non-compliance would entail immediate release of the arrested person because such arrest is unconstitutional.”, the Court said in Jaskaran.
Prioritising substantive compliance and prejudice-oriented test over the formal requirement of written grounds of arrest
The formal requirement of supplying the written grounds of arrest was diluted in Jhabra Ram, where the Court prioritises substantive compliance with Article 22(1) and adopted a prejudice-oriented test to hold that a mere absence of written grounds or procedural defects in communicating the 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.
Endorsing the approach in Kasireddy, the Court in Jabhra Ram noted that the accused, booked under the Official Secrets Act for allegedly spying for Pakistan, had been served an arrest notice and informed of the reasons for his arrest immediately thereafter, as also recorded in the case diary. The arrest memo detailed the allegations against him and bore his signature. His brother was also informed of the arrest, and the accused was represented by counsel during remand proceedings, where no objection regarding non-communication of the grounds of arrest was raised. In these circumstances, the Court held that there was substantial compliance with Article 22(1) and no demonstrable prejudice to the accused, warranting the conclusion that the arrest could not be invalidated merely because written grounds of arrest had not been separately furnished.
Even before Jabhra Ram, the same bench led by Justice M.M. Sundresh, in Sonam Raghuvanshi, had adopted a prejudice-oriented approach. According to the bench, while non-supply of written grounds of arrest altogether vitiates the arrest, non-furnishing of adequate reasons thereunder would not automatically vitiate the arrest, rather the legality of the arrest must be assessed by examining the prejudice caused to the accused due to non-supply of adequate grounds of arrest.
The position adopted in Jabhra Ram appears to be at odds with the earlier ruling in Jaskaran, where a bench led by Justice Ujjal Bhuyan rejected the proposition that procedural lapses in communicating the grounds of arrest do not, by themselves, render the custody illegal or entitle the accused to bail. Emphasising the constitutional significance of the safeguard, the Court therein observed:
“The safeguards adumbrated in Article 22(1) are not mere procedural safeguards; these are fundamental principles which are required to be followed in the event liberty of a person is sought to be curtailed. Therefore, it is not correct at all to say that procedural lapses in furnishing grounds of arrest do not ipso facto render custody illegal or entitles the accused to bail. When an accused is released for violation of his fundamental rights under Article 22 (1), he is not enlarged on bail. He is released from illegal and unconstitutional detention.”, the Court held in Jaskaran.
Can a prejudice-oriented test override the constitutional requirement under Article 22(1)?
The Court's decision in Jabhra Ram that procedural defect must be assessed in light of whether it caused demonstrable prejudice to the accused potentially shifts the focus from whether the State discharged its constitutional obligation to whether the accused can establish actual harm. These are distinct inquiries. As per Vihaan Kumar, followed by Kasireddy, the State has an affirmative duty to communicate the grounds of arrest effectively and in a manner that enables the accused to understand and challenge the basis of his arrest, and this duty cannot be diluted merely because there was an absence of demonstrable prejudice caused to an accused.
In essence, the absence of demonstrable prejudice should not become a substitute for the State establishing that the grounds were effectively communicated in the first place.
“when an arrestee pleads before a court that the grounds of arrest were not communicated, the burden to prove the compliance of Article 22(1) is on the police authorities.”, the Court said in Vihaan Kumar.
Treating arrest grounds recorded in internal documents like the case diary as compliance with Article 22(1) creates practical hurdles for the accused.
If mere recording of grounds of arrest in the case diary amounts to substantial compliance, then it poses a significant challenge for the accused as under Section 192(5) of the BNSS (corresponding to Section 172(3) Cr.P.C.), an accused or his representative is not ordinarily entitled to call for or inspect the case diary, even when the Court refers to it.
This creates a practical difficulty when the legality of an arrest is itself under a challenge. If the police rely on an internal case diary entry to show the grounds were communicated, the accused may have no ordinary right to inspect that entry. He may consequently have to seek the court's intervention to examine the State's claim, potentially leading to a separate round of litigation while he remains in custody. Such a process could delay the consideration of bail in cases where the legality of the arrest is itself under challenge. The constitutional safeguard under Article 22(1) should not depend on an accused first overcoming statutory restrictions on access to the material the State relies on.
More fundamentally, an entry recording what the investigating officer claims to have done is not necessarily proof that the grounds were actually communicated to the arrested person. The State must establish effective communication through reliable material, rather than merely point to an internal record that the accused cannot ordinarily inspect. This concern reinforces the principle in Vihaan Kumar that the burden of proving compliance with Article 22(1) rests on the investigating agency, and not on the accused to establish the negative.
