Informing 'Grounds Of Arrest' To Accused Distinct From Mere Intimation Of Arrest: Gauhati High Court Issues Directives To Assam Police

The Gauhati High Court recently directed the Chief Secretary and Director General of Police, Assam, to ensure that when exercising the power to arrest without a warrant, the police or any other authority issues a notice to the arrestee under Section 47 of BNSS or any other relevant provision of a special law, stating the grounds of arrest.

While hearing a bail application, the single judge bench of Justice Mridul Kumar Kalita observed:

“This notice, which must be served on the arrestee at the time of arrest, should clearly state the grounds of arrest, including the full particulars of the offence, the gist of the accusations, and the basic facts necessitating the arrest. Failure to comply with this requirement would render the arrest invalid due to non-compliance with the constitutional mandate.”

The Court was hearing a bail application filed by one of the accused persons, who was alleged to be involved in financial fraud of bank accounts and operating all over India.

The Counsel appearing for the petitioner submitted that at the time of petitioner's arrest, his constitutional rights guaranteed under Article 22 (1) of the Constitution of India as well as statutory rights guaranteed under Section 47 of the BNSS were violated and therefore, the arrest itself got vitiated and on that ground alone he is entitled to get bail.

It was further submitted that it is the constitutional duty of the arresting authority to inform the arrestee about the grounds of arrest which includes full particulars of an offence which is alleged against the petitioner as well as all such details in the hands of the Investigating Officer which necessitated the arrest of the petitioner.

The petitioner's Counsel raised the contention that in the notice served upon the petitioner under Section 47 of the BNSS, the only information provided was the case number of the police station case, in which arrest has been made, and the penal provisions involved in the case, i.e, under Sections 318(2), 316 (4), 336(3), 340(2), 61(2) of the BNS.

On the other hand, the Additional Public Prosecutor opposed the grant of bail to the present petitioner on the ground that there are sufficient incriminating materials against the petitioner in the case diary.

It was further submitted that the Investigating Officer orally informed the petitioner of the grounds of arrest at the time of his arrest.

After hearing both sides, the Court observed that informing an arrestee of the grounds for his arrest is not only a statutory right but also a constitutional mandate, which the arresting authority is duty-bound to uphold.

“In the instant case except the fact that the petitioner was served with the notice under Section 47 of BNSS, 2023, the prosecution side has not been able to show anything to satisfy this Court that the grounds of arrest of the petitioner in this case were communicated to him. As already discussed here in above, the notice under Section 47 of the BNSS, 2023 served on the present petitioner only contains the information regarding his arrest in connection with Mangaldai P.S. Case No. 14/2025 and the penal provisions involved in the case. Nothing else has been mentioned in the said notice,” the Court noted.

The Court relied upon the judgment of the Supreme Court in Vihan Kumar v. State of Haryana & Another 2025 SCC Online SC 269 in which it was observed that mere information about an arrest is distinct from the communication of the grounds for such arrest and simply informing an individual of his arrest does not fulfill the constitutional and statutory requirement of providing the grounds of arrest to an arrestee.

The Court found that the petitioner was not informed of the grounds of his arrest, as required by law. Therefore, it was observed by the Court that the notice issued under Section 47 of the BNSS, is devoid of any such details, resulting in a clear violation of constitutional and statutory mandate rendering the arrest illegal and entitling the petitioner to bail.

Thus, the Court granted bail to the petitioner with certain conditions.

Furthermore, the Court highlighted a concerning issue, i.e., although notices under Section 47 of the BNSS, 2023 are issued in almost all cases, they usually include only the police station case number and the applicable legal provisions, without elaborating on the grounds for the arrest. It was noted by the Court that as a result, these notices serve merely as intimation of arrest rather than fulfilling the legal requirement of providing the actual grounds for it.

“As the State is bound to follow the constitutional mandate as well as the statutory provisions of law, it shall ensure that in the notices furnished to an arrestee under Section 47 of the BNSS, 2023 full particulars of the offence, in which the accused has been arrested as well as the basic facts which necessitated the arrest of the accused must be provided to him forthwith at the time of his arrest,” the Court said.

The Court further remarked that Wwhen an arrested person is produced before a Judicial Magistrate, it is the Magistrate's duty to ascertain whether the requirements of Article 22(1) of the Constitution of India have been complied with. If there is any non-compliance with this constitutional mandate, the Magistrate cannot remand the accused to custody; the only option available in such a case is to grant bail.

“Let, a copy of this order be furnished to the Chief Secretary, Government of Assam, and the Director General of Police, Assam, to ensure that when exercising the power to arrest without a warrant, the police or any other authority issues a notice under Section 47 of the BNSS, 2023, or any other relevant provision of a special law (such as Section 52(1) of the NDPS Act, 1985),” the Court said.

The Court further directed that a copy of the present order shall be provided to the Director, Judicial Academy, Assam, to raise awareness among the Judicial Magistrates and other Judicial Officers handling remand proceedings.

“This will help ensure that they fulfill their constitutional duty by verifying compliance with Article 22 of the Constitution of India before ordering judicial or police custody of the arrested person,” it added.

Citation: 2025 LiveLaw (Gau) 15

Case Title: Sakib Choudhury v. The State of Assam

Case No.: Bail Appln./629/2025

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