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"52. We thus hold, that, in cases where the police are
already in possession of documentary material furnishing
a cogent basis for the arrest, the written grounds of
arrest must be furnished to the arrestee on his arrest.
However, in exceptional circumstances such as offences
against body or property committed in flagrante delicto,
where informing the grounds of arrest in writing on
arrest is rendered impractical, it shall be sufficient for the
police officer or other person making the arrest to orally
convey the same to the person at the time of arrest.
Later, a written copy of grounds of arrest must be
supplied to the arrested person within a reasonable time
and in no event later than two hours prior to production
of the arrestee before the magistrate for remand
proceedings. The remand papers shall contain the
grounds of arrest and in case there is delay in supply
thereof, a note indicating a cause for it be included for
the information of the magistrate.
53. The above indicated lower limit of two hours
minimum interval before the production is grounded in
the functional necessity so that the right as provided to
an arrestee under the Constitution and the statute is
safeguarded effectively. This period would ensure that
the counsel has adequate time to scrutinize the basis of
arrest and gather relevant material to defend the arrestee
proficiently and capably while opposing the remand. Any
shorter interval may render such preparation illusory,
thereby resulting in non-compliance of the constitutional
and statutory mandate. The two-hour threshold before
production for remand thus strikes a judicious balance
between safeguarding the arrestee's constitutional rights
under Article 22(1) and preserving the operational
continuity of criminal investigations.
54. In view of the above, we hold with regard to the
second issue that non supply of grounds of arrest in
writing to the arrestee prior to or immediately after
arrest would not vitiate such arrest on the grounds of
non-compliance with the provisions of Section 50 of the
CrPC 1973 (now Section 47 of BNSS 2023) provided the
said grounds are supplied in writing within a reasonable
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time and in any case two hours prior to the production of
the arrestee before the magistrate for remand
proceedings.
55. It goes without saying that if the abovesaid
schedule for supplying the grounds of arrest in writing is
not adhered to, the arrest will be rendered illegal
entitling the release of the arrestee. On such release, an
application for remand or custody, if required, will be
moved along with the reasons and necessity for the
same, after the supply of the grounds of arrest in writing
setting forth the explanation for non-supply thereof
within the above stipulated schedule. On receipt of such
an application, the magistrate shall decide the same
expeditiously and preferably within a week of submission
thereof by adhering to the principles of natural justice.
56. In conclusion, it is held that:
i) The constitutional mandate of informing the arrestee
the grounds of arrest is mandatory in all offences under
all statutes including offences under Penal Code,1860
(now BNS 2023);
ii) The grounds of arrest must be communicated in
writing to the arrestee in the language he/she
understands;
iii) In case(s) where, the arresting officer/person is
unable to communicate the grounds of arrest in writing
on or soon after arrest, it be so done orally. The said
grounds be communicated in writing within a reasonable
time and in any case at least two hours prior to
production of the arrestee for remand proceedings before
the magistrate.
iv) In case of non-compliance of the above, the arrest
and subsequent remand would be rendered illegal and
the person will be at liberty to be set free.
57. .....
58. We are cognizant that there existed no consistent
or binding requirement mandating written
communication of the grounds of arrest for all the
offences. Holding as above, in our view, would ensure
implementation of the constitutional rights provided to
an arrestee as engrafted under Article 22 of the
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Constitution of India in an effective manner. Such
clarity on obligation would avoid uncertainty in the
administration of criminal justice. The ends of fairness
and legal discipline therefore demand that this procedure
as affirmed above shall govern arrests henceforth."
11. The learned Senior Advocate has stated about the entitlement
of bail on this ground. He has also argued that there is no concept of
waiver of fundamental right.
12. In Criminal Application (BA) Nos.18/2025 and 718/2025 Mr.
D.S. Sirpurkar, learned Advocate for the applicants in addition to the
arguments of learned Senior Advocate has relied on the extract of
speech of Dr. Babasaheb Ambedkar about fundamental rights of a
person. He has relied on the judgment in the case of Ram Autar
Singh Yadav V/s. The State of Uttar Pradesh and others (Civil Appeal
No.13806/2024) in support of his argument that there is no loss of
fundamental right for non-exercise thereof and also that there cannot
be a waiver of fundamental right.
13. Mr. R.P. Joshi, learned Advocate for the applicant in Criminal
Application (BA) No.1130/2025 harped upon the applicability of
observations made in the case of Mihir Rajesh Shah (supra) being
retrospective in nature and not prospective. He has urged that the
word "henceforth" is applicable to para 55 wherein the procedure to
be adopted if the supplying of grounds of arrest is not adhered, is laid
down.
14. I have also heard Ms. Sunita Kulkarni with Mr. Chande and Mr.
Jaltare, learned Advocates for the applicant in Criminal Application
(BA) Nos.808/2025 and 622/2025 and Mr. Mehta, learned Advocate
for the appellant in Criminal Appeal No.474/2025.
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15. Learned Senior Advocate and Public Prosecutor Mr. Chauhan
has argued that in observations in the case of Sri Darshan (supra) and
Mihir Rajesh Shah (supra) there is a conflict between two judgments
and whenever there is conflict between the judgments of the Supreme
Court, he has requested to refer this issue before the Hon'ble the Chief
Justice for reference. He has formulated the questions of reference.
He has stated that correct explanation of law is required to be
explained in Mihir Rajesh Shah's case, as in it the Hon'ble Apex Court
has used the word "henceforth", this issue requires to be referred to
the Larger Bench.
16. When I have shown disinclination to refer the matter to the
Larger Bench and would like to hear on the law laid down by the
Hon'ble Apex Court, the learned Public Prosecutor argued that as per
the judgment of Mihir Rajesh Shah (supra) it will apply prospectively.
There is a presumption in law that the law laid down by the Hon'ble
Apex Court will apply prospectively and not retrospectively unless it is
specifically mentioned that it will apply retrospectively. The Hon'ble
Apex Court has specifically clarified about uncertainty of the
declaration regarding manner of conveying reasons and has
purposefully observed "henceforth".
17. The learned Public Prosecutor has relied on the judgment of the
Hon'ble Apex Court in the case of Kanishk Sinha and another V/s.
The State of West Bengal and another reported in 2025 LiveLaw (SC)
259 wherein the Court has placed in reliance on the judgment of
Priyanka Srivastava V/s. State of Uttar Pradesh reported in (2015) 6
SCC 287 wherein the observations are made that in order to consider
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the rights of accused, a stage has come in this country which means
"prospective".
"5. This Court in the above case then also issued
directions that a copy of the judgment be sent to all the
Chief Justices of the High Courts, who in turn will
circulate the said copy to all the Magistrates, so that they
remain "more vigilant and diligent while exercising the
power under Section 156(3) CrPC". It is necessary to
mark the words in the above-quoted para 30 that "...a
stage has come in this country...", and thus, the above
directions could only be prospective. This would signify
that what the Court intended was that from now onward
it would be necessary that an application would be
accompanied by an affidavit."
18. The learned Public Prosecutor Mr. DV Chauhan, has relied
on the judgment in the case of Navneen Siyaram Sharma v.
State of Maharashtra and others reported in 2025 SCC OnLine
Bom 4532. The case sets the stage for examining whether the
mandatory requirement of communicating the "grounds of
arrest" was fulfilled, and the Court proceeds by applying the
legal standard which the Supreme Court has directed to operate
henceforth in Mihir Rajesh Shah (supra). In Para 6 the Bench
specifically notes that Mihir Rajesh Shah (supra) reiterates the
principles in Pankaj Bansal and Prabir Purkayastha while
expressly using the term "henceforth", thereby making the
strengthened procedural requirement prospective.
19. The learned Public Prosecutor placed reliance on the
recent judgment of the Hon'ble Supreme Court in Kanishk Sinha
and another V/s. State of West Bengal and another reported in
2025 LiveLaw (SC) 259 wherein the Court has authoritatively
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reiterated the settled principle that judicial pronouncements are
ordinarily retrospective in operation, unless the judgment itself
expressly states that it will apply prospectively.
20. It is further submitted that in Ahmed Mansoor (supra) the
Supreme Court examined whether the appellants were furnished
with the grounds of arrest at the time of apprehension, as
mandated under Section 43B of the UAPA. It was argued that
the arrest memo and the explanation given at the time of
remand constituted sufficient compliance; however, the
Supreme Court held that this issue is no longer res integra and
found that the High Court had misconstrued earlier binding
precedents. The Court clarified that the arrest memo only
contained generic "reasons for arrest" and did not furnish the
specific "grounds of arrest", which must be personal to the
accused and must inform them of the factual basis necessitating
arrest so that they may effectively contest remand or seek bail.
It was argued that the defence is attempting to portray the
cyclostyled Section 41B check-list as inadequate, whereas the
law does not mandate a detailed narrative of incriminating
material at the stage of arrest, and operationally the accused
were produced before the jurisdictional court where the grounds
and reasons were explained. The learned Public Prosecutor
emphasized that even if the memo-enclosed documents dated
09.10.2024 are considered supplementary, they cannot
invalidate the arrest, since the Supreme Court in Mihir Rajesh
Shah (supra) has clarified that procedural defects do not
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automatically vitiate an arrest unless prejudice is shown.
Petitioner cannot seek bail solely on technical grounds.
21. I have heard the learned Advocates for the respective parties.
22. The requirement of provision to inform the grounds of arrest is
to effectively contest the remand or seek bail. In all these cases the
applicants/appellant are in jail and after the judgment of the Hon'ble
Supreme Court have filed the applications/appeal claiming that there
is an infringement of their fundamental right. Law is settled and all
the applicants are aware of it but it was not raised since their first
remand. In this context the Hon'ble Apex Court in case of Sri
Darshan (supra) is very clear. Mere absence of written grounds does
not ipso facto make arrest illegal unless it results in demonstrable
prejudice or denial of a fair opportunity to defend. It is observed in
para 20.1.5 as under:-
"20.1.5. While Section 50 Cr.P.C is mandatory, the
consistent judicial approach has been to adopt a
prejudice-oriented test when examining alleged
procedural lapses. The 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."
23. In paragraph 20.1.6 there was a reference to the gravity of the
offence as an important factor. In para 20.1.7 it was further observed
that in absence of demonstrable prejudice said irregularity is at best a
curable defect and cannot by itself warrant release on bail. It was
further observed that the approach adopted is inconsistent with the
settled principle that procedural lapses in furnishing ground of arrest,
absent prejudice, do not ipso facto render custody illegal or entitle the
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accused to bail. Paragraph 20.1.7 is important in that context which
reads as under:-
"20.1.7. In the present case, the arrest memos and
remand records clearly reflect that the respondents were
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. No material has been
placed on record to establish that any prejudice was
caused due to the alleged procedural lapse. In the
absence of demonstrable prejudice, such as irregularity
is, at best, a curable defect and cannot, by itself, warrant
release on bail. As reiterated above, the High Court
treated it as a determinative factor while overlooking the
gravity of the charge under Section 302 IPC and the
existence of a prima facie case. Its reliance on Pankaj
Bansal and Prabir Purkayastha is misplaced, as those
decisions turned on materially different facts and
statutory contexts. The approach adopted here is
inconsistent with the settled principle that procedural
lapses in furnishing grounds of arrest, absent prejudice,
do not ipso facto render custody illegal or entitle the
accused to bail."
24. In all these cases no such prejudice is shown by the applicants/
appellant.
25. The Hon'ble Apex Court in the case of Mihir Rajesh Shah
(supra) has clarified that the procedural defects did not automatically
vitiate an arrest unless prejudice is shown. Paragraph No.54 of said
judgment reads as under:-
"54. In view of the above, we hold with regard to the
second issue that non supply of grounds of arrest in
writing to the arrestee prior to or immediately after
arrest would not vitiate such arrest on the grounds of
non-compliance with the provisions of Section 50 of the
CrPC 1973 (now Section 47 of BNSS 2023) provided the
said grounds are supplied in writing within a reasonable
ba199.2025+6.odt
time and in any case two hours prior to the production of
the arrestee before the magistrate for remand
proceedings."
26. The learned Public Prosecutor urged that the manner of
communication is a requirement, is not constitutional text or statute
but instead a product of judicial interpretation. As the right is
judicially created and procedural in nature the Supreme Court is fully
empowered to apply it prospectively. Consequently, the use of word
"henceforth" signifies that it will apply after the date of decision, no
retrospective effect can be claimed prior to that date.
27. Meaning of "henceforth" as per the Black's Law Dictionary is
"from now", "newly enacted rule will apply henceforth" which clearly
indicates that this ground will be available after the date of decision
and will not apply to earlier cases. Though the law was in existence,
after the judgment of Mihir Rajesh Shah (supra) all the accused
persons woke up from slumber and started claiming bail on this
ground. As it has specifically mentioned "henceforth" it will not apply
to earlier matters or only to the procedure as stated in para 55 of said
judgment. When the Hon'ble Supreme Court in Mihir Shah
consciously used the expression "henceforth" it exercised its power of
procedural declaration thereby making the enhanced procedural
requirement regarding communication of arrest and such procedure
being applicable prospectively only and not to past arrests or
proceedings that have already attained finality.
30. In view of the abovesaid discussion, all the criminal
applications and the criminal appeal filed on this ground are
dismissed on this ground only.
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31. The applications and appeal which are not heard on the ground
of delay and on merits are kept for further consideration on 8.1.2026.
32. Criminal Application (BA) No.1130/2025 is finally disposed of.
(MRS.VRUSHALI V.JOSHI, J.)
Tambaskar.
Signed by: MR. N.V. TAMBASKAR
Designation: PS To Honourable Judge
Date: 12/12/2025 18:15:55
