Updated: September 24, 2026
India’s criminal justice framework has undergone significant changes following the introduction of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) and a series of important Supreme Court decisions concerning arrest, detention, personal liberty and constitutional safeguards.
One of the most important issues in this area is the constitutional requirement that an arrested person must be informed of the grounds of arrest. The Supreme Court has also examined the legal consequences that may follow when an arrest is found unconstitutional and the investigating agency subsequently seeks to take the same person into custody again.
These developments are important for anyone dealing with an FIR, police notice, arrest, remand, bail application or criminal investigation.
This article explains the key arrest safeguards under Article 21 and Article 22 of the Constitution of India, the relevant provisions of the BNSS, and the legal distinction between an ordinary arrest and re-arrest following an unconstitutional detention.
What Has Changed in India’s Arrest Rules?
The law does not remove the police power to arrest. However, arrest is subject to constitutional and statutory safeguards.
Some of the key principles include:
- An arrested person has a constitutional right to be informed of the grounds of arrest.
- The grounds of arrest must be communicated in accordance with the requirements laid down by the Supreme Court.
- Where written communication is required, the grounds should ordinarily be supplied in writing.
- The information should be communicated in a language understood by the arrested person.
- Where an arrest is found unconstitutional because mandatory safeguards were not followed, the resulting detention may be held illegal.
- A subsequent attempt to take the person into custody may be subject to additional judicial safeguards where the Supreme Court’s re-arrest directions apply.
- The BNSS separately regulates notices to appear, arrest procedures and special protections in specified circumstances.
The underlying constitutional principle is the protection of personal liberty under Article 21 and the safeguards against arbitrary arrest and detention contained in Article 22.
Article 22 and the Right to Know the Grounds of Arrest
Article 22(1) of the Constitution provides that a person who is arrested must be informed of the grounds of arrest as soon as may be.
This safeguard is fundamental because an arrested person should know why their liberty has been restricted.
Knowledge of the grounds of arrest can also be important for:
- Seeking legal advice;
- Challenging an unlawful arrest;
- Applying for bail;
- Opposing police custody;
- Preparing an effective defence; and
- Exercising other legal remedies available under law.
The Supreme Court’s recent jurisprudence has placed greater emphasis on meaningful communication of the grounds of arrest rather than treating the requirement as a mere procedural formality.
Written Grounds of Arrest: Why They Matter
The Supreme Court has interpreted the constitutional requirement concerning grounds of arrest to require meaningful communication to the arrested person.
In Mihir Rajesh Shah v. State of Maharashtra, the Court addressed the manner in which grounds of arrest are required to be communicated, including the requirement of written communication and communication in a language understood by the arrested person, subject to the limited circumstances recognised by the Court.
The practical importance of this requirement is straightforward: a person cannot effectively challenge an arrest if they do not know the legal and factual basis on which their liberty has been restricted.
For that reason, the communication of grounds of arrest has become an important issue in proceedings involving arrest and remand.
What Is the Two-Hour Rule?
The so-called two-hour rule has attracted considerable attention in discussions surrounding written grounds of arrest.
The relevant Supreme Court directions recognise that there may be exceptional circumstances in which immediate written communication is impracticable.
In such circumstances, the grounds may initially be communicated orally, but the written grounds must subsequently be supplied within the period prescribed by the Court and, in the circumstances addressed by the judgment, sufficiently before production before the Magistrate for remand.
This should not be misunderstood as permission for the police to routinely delay written grounds of arrest.
The general principle remains that the grounds should be communicated as soon as reasonably possible. The limited time period recognised by the Court operates as a safeguard for exceptional situations rather than as a routine waiting period.
What Happens If the Grounds of Arrest Are Not Communicated?
Failure to comply with constitutional requirements concerning the grounds of arrest can have serious legal consequences.
Depending on the facts, a court may hold the arrest or subsequent detention unconstitutional.
Where detention is found unconstitutional, the person may be entitled to release from that detention.
It is important to understand that this is not necessarily the same as bail.
Release from Unconstitutional Detention vs Bail
These two concepts operate differently.
Bail generally allows an accused person to remain at liberty subject to conditions while criminal proceedings continue.
Release following unconstitutional detention, on the other hand, concerns the legality of the arrest or detention itself.
The distinction becomes particularly important where the investigating agency later seeks further custody.
Supreme Court and Re-Arrest After an Unconstitutional Arrest
A significant question is what happens when a person has already been released because the original arrest was found unconstitutional.
The Supreme Court’s September 2026 ruling in Jaskaran Jeet Singh Deol v. State of Punjab, as described in the material discussed here, addresses safeguards surrounding such subsequent custody.
The central issue is whether the investigating agency can simply repeat the arrest after the earlier arrest has been declared unconstitutional.
The answer depends on the circumstances and the directions applicable to the case.
Where the Supreme Court’s re-arrest safeguards apply, the investigating agency cannot treat the previous constitutional violation as irrelevant. A request for further custody must pass through the judicial process prescribed by the Court.
What Does the Re-Arrest Procedure Involve?
The safeguards discussed in the recent Supreme Court ruling include judicial scrutiny of the proposed further custody.
The process may require the investigating agency to explain:
- Why the grounds of arrest were not properly communicated during the original arrest;
- Why further custodial interrogation is considered necessary;
- What legal basis exists for the proposed arrest;
- Why the circumstances justify taking the person into custody again; and
- Why the Magistrate should permit the requested custody.
The investigating agency may also be required to obtain the necessary approval or endorsement from the appropriate superior authority.
The purpose of these safeguards is to prevent an earlier constitutional violation from being followed by an automatic repetition of the same process.
Can Police Arrest the Person Again?
An unconstitutional earlier arrest does not create permanent immunity from arrest.
A person may still be arrested in the future if the requirements of law are satisfied.
The important distinction is that, where the Supreme Court’s specific re-arrest safeguards apply, the police cannot simply ignore the earlier constitutional finding and repeat the arrest without following the prescribed procedure.
The principle is therefore one of judicial scrutiny and procedural safeguards, rather than a blanket prohibition on future arrest.
Police Accountability in Arrest Proceedings
Constitutional safeguards are meaningful only when investigating authorities comply with them in practice.
The Supreme Court’s approach to unconstitutional arrest also raises questions of accountability where an investigating officer fails to comply with mandatory requirements.
Depending on the circumstances and applicable directions, further investigation or custody proceedings may involve safeguards designed to prevent the same procedural failure from continuing unchecked.
Departmental proceedings may also arise where an officer is found to have committed misconduct or failed to comply with applicable legal requirements.
The broader principle is that constitutional rights cannot be treated as optional procedural requirements.
Article 22 and India’s New Criminal Laws
The constitutional safeguards contained in Article 22 continue to operate alongside India’s new criminal-law framework.
The three principal new criminal laws are:
- Bharatiya Nyaya Sanhita, 2023 (BNS) — replacing the Indian Penal Code framework;
- Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) — replacing the Code of Criminal Procedure framework; and
- Bharatiya Sakshya Adhiniyam, 2023 (BSA) — replacing the Indian Evidence Act framework.
The BNSS is particularly relevant to arrest, notices, investigation, remand and related criminal procedure.
What Does Section 35 of the BNSS Say About Arrest?
Section 35 of the BNSS deals with circumstances in which police may arrest without a warrant and contains important safeguards concerning arrest and notices to appear.
Where the statutory conditions for issuing a notice to appear are met, a person may be required to appear before the police.
If the person complies with the notice and continues to comply, arrest is not automatically required merely because an allegation has been made.
The police must consider the statutory requirements governing the necessity of arrest.
This is why it is inaccurate to assume that the registration of an FIR automatically means that the accused must be arrested.
At the same time, Section 35 should not be interpreted as creating an absolute prohibition on arrest in every case where the maximum punishment is below seven years.
The precise legal position depends on the offence, the statutory requirements and the circumstances of the individual case.
Does Every Offence Punishable Below Seven Years Require a Notice?
No.
This is one of the most common misunderstandings concerning the BNSS.
The law does not establish a blanket rule that every person accused of an offence punishable with less than seven years of imprisonment can never be arrested.
Instead, the statutory framework requires the police to consider the necessity of arrest and provides procedural safeguards concerning notices to appear.
Therefore, whether arrest is legally justified must be determined by examining the applicable provision and the circumstances of the particular case.
Protection for Persons Above 60 and Infirm Persons
Section 35(7) of the BNSS provides an additional safeguard for certain persons who are above 60 years of age or infirm.
Where the statutory conditions are satisfied and the alleged offence is punishable with imprisonment of less than three years, prior permission from an officer not below the rank of Deputy Superintendent of Police (DSP) is required before arrest.
This is a statutory protection under the BNSS.
It should be distinguished from the Supreme Court’s separate directions concerning re-arrest after an unconstitutional arrest.
Special Rules Concerning Arrest of Women at Night
The BNSS also contains special safeguards concerning the arrest of women during night hours.
As a general statutory rule, a woman should not be arrested between sunset and sunrise except in exceptional circumstances.
Where such circumstances exist, the prescribed procedure must be followed, including the involvement of a woman police officer and the required written report and Magistrate-related safeguards.
These provisions operate independently from the Supreme Court’s re-arrest jurisprudence.
A Simple Example of the Re-Arrest Safeguard
Consider a hypothetical example.
The police arrest a person but fail to comply with the constitutional requirements concerning communication of the grounds of arrest.
The person approaches the court, and the court finds that the constitutional safeguard has been violated.
The person is consequently released from the unconstitutional detention.
The investigating agency may still believe that custodial interrogation is necessary.
In circumstances covered by the Supreme Court’s re-arrest directions, the authorities cannot simply repeat the original arrest without following the prescribed judicial process.
The investigating agency may have to explain:
- Why the original constitutional requirement was not complied with;
- Why further custody is necessary;
- What legal grounds support the proposed arrest; and
- Why the court should permit the requested custody.
The Magistrate can then examine the request in accordance with the applicable law and judicial directions.
What Should You Do If You Receive an FIR or Police Notice?
Receiving an FIR or police notice does not by itself establish guilt.
If you receive a police notice, learn that an FIR has been registered against you, or believe that arrest may be possible, the first step is to understand the exact allegations and legal provisions involved.
Depending on the circumstances, legal advice may be relevant where:
- An FIR has been registered;
- A notice to appear has been issued;
- You are concerned about possible arrest;
- You need to understand anticipatory bail or regular bail;
- You have already been arrested;
- Police custody or judicial remand is being sought; or
- You believe mandatory arrest safeguards were not followed.
A person facing criminal proceedings should preserve relevant documents, understand the allegations made in the FIR or notice, and obtain case-specific legal advice where necessary.
Why Arrest Cases Require Case-Specific Legal Analysis
Criminal procedure is highly fact-specific.
The applicable legal position may depend on:
- The date and circumstances of the alleged offence;
- The sections mentioned in the FIR;
- Whether the offence is bailable or non-bailable;
- Whether a notice to appear has been issued;
- Whether the person has already been arrested;
- Whether police or judicial remand has been requested;
- Whether a special criminal statute applies; and
- The stage of the investigation or court proceedings.
For these reasons, a general online article cannot determine whether a particular arrest is lawful or whether a person is entitled to bail.
The exact FIR, arrest memo, notice, remand application, court order and applicable statutory provisions may all be relevant.
2025 and 2026: Two Important Developments
The two Supreme Court decisions discussed in this article concern connected but distinct aspects of arrest procedure.
| Supreme Court Case | Date | Subject |
|---|---|---|
| Mihir Rajesh Shah v. State of Maharashtra | November 6, 2025 | Communication of the grounds of arrest and related constitutional safeguards |
| Jaskaran Jeet Singh Deol v. State of Punjab | September 21, 2026 | Judicial safeguards concerning subsequent custody following an earlier unconstitutional arrest |
The first development concerns the right to know the grounds of arrest.
The later development concerns the procedural safeguards that may apply where an earlier arrest has already been found unconstitutional and authorities subsequently seek custody.
Because arrest jurisprudence can develop through subsequent judgments and clarifications, readers should check the latest authoritative court orders before relying on any particular procedural proposition.
Arrest Rights in India: Quick Overview
| Issue | General Legal Position |
|---|---|
| Grounds of arrest | Article 22 protects the right to be informed of the grounds of arrest |
| Written grounds | Supreme Court jurisprudence requires written communication in the circumstances covered by its directions |
| Language | The grounds should be communicated in a language understood by the arrested person |
| Re-arrest after unconstitutional arrest | Additional judicial safeguards may apply where covered by the relevant Supreme Court directions |
| Offences below seven years | No blanket prohibition on arrest; statutory requirements concerning necessity of arrest must be examined |
| Persons above 60 or infirm | Section 35(7) BNSS provides an additional safeguard in qualifying cases |
| Arrest of women at night | The BNSS contains specific statutory safeguards |
| Unconstitutional detention | Courts may grant appropriate relief, including release, where constitutional requirements have been violated |
Frequently Asked Questions
Can police arrest a person without telling them the grounds of arrest?
Article 22(1) gives an arrested person the right to be informed of the grounds of arrest as soon as possible. Supreme Court jurisprudence has strengthened the requirements concerning how those grounds must be communicated.
Can police re-arrest someone after an unconstitutional arrest?
A person whose earlier arrest was found unconstitutional is not permanently immune from arrest. However, where the relevant Supreme Court directions apply, subsequent custody may require compliance with additional judicial safeguards.
Does every arrest require prior permission from a Magistrate?
No. The Supreme Court’s re-arrest safeguards should not be confused with a general requirement that every police arrest in India must receive prior Magistrate permission.
Does the BNSS prohibit arrest for offences punishable below seven years?
No. The BNSS does not create a blanket prohibition on arrest for every such offence. The statutory conditions governing arrest and notices to appear must be considered.
Can a person above 60 years of age be arrested?
Yes, depending on the circumstances. Section 35(7) of the BNSS provides an additional safeguard for persons above 60 or infirm in qualifying cases involving offences punishable with imprisonment of less than three years.
Can a woman be arrested at night?
The BNSS generally restricts the arrest of women between sunset and sunrise except in exceptional circumstances, subject to the statutory procedure and applicable safeguards.
Is release after an unconstitutional arrest the same as bail?
Not necessarily. Release because detention has been found unconstitutional concerns the legality of the detention, whereas bail operates within the criminal proceedings subject to applicable conditions.
Final Takeaway
India’s arrest framework places significant importance on personal liberty, constitutional compliance and procedural safeguards.
The Supreme Court’s recent arrest jurisprudence does not eliminate the police power to arrest. Instead, it reinforces the requirement that arrest and detention must comply with constitutional and statutory requirements.
Three points are particularly important:
- An arrested person has a constitutional right to know the grounds of arrest.
- Failure to comply with mandatory constitutional safeguards can affect the legality of the arrest and detention.
- Where an earlier arrest has been found unconstitutional, any subsequent custody must comply with the judicial safeguards applicable to the circumstances.
The BNSS separately provides safeguards concerning notices to appear, elderly and infirm persons, and the arrest of women during night hours.
Anyone facing an FIR, police notice, arrest, remand or bail issue should examine the exact facts, the applicable statutory provisions and the latest judicial directions. General legal information can improve awareness, but individual criminal matters require case-specific legal analysis.
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Disclaimer
This article is provided for general legal awareness and educational purposes only. It does not constitute legal advice and does not create an advocate-client relationship.
Arrest, detention, remand, bail and re-arrest issues depend on the facts of each case, the applicable statutory provisions and the latest judicial directions. Readers should obtain professional legal advice before taking action in a specific legal matter.
