Is re-arrest of an accused permissible after first arrest is vitiated by procedural irregularities?

Arresting an accused amounts to depriving him/her from personal liberty as guaranteed under Article 21 of the Constitution of India, 1950. In such circumstances, the requirement of informing an accused the grounds of arrest is not a procedural formality, but a constitutional requirement.

Article 22(1) of the Constitution of India and Section 47 of the Bharatiya Nagrik Suraksha Sanhita (BNSS), 2023 [and Section 50 of the Code of Criminal Procedure (CrPC)] provide that an accused must be informed of the grounds of arrest. Hence, if an accused is arrested without warrant and is not provided with the grounds of arrest, the same shall amount to depriving their fundamental rights under Article 21 of the Constitution of India.

The Supreme Court of India in Pankaj Bansal v. Union of India (2024) and Prabir Purkayastha v. Union of India (2024) held that the requirement of communication of grounds of arrest/detention is sacrosanct and the same cannot be breached under any situation. Furthermore, the Supreme Court held that an arrest is illegal if there is non-communication of the grounds of arrest.

Following the principles in Pankaj Bansal, the Supreme Court in Vihaan Kumar v. State of Haryana (2025) set out broader principles directing magistrates to inform accused of the grounds of arrest when they are produced.

Once the accused is released after the arrest is found to be in contravention of Article 22(1) or Section 47 of BNSS, the moot question is whether it is permissible for the investigation officer to re-arrest the accused after rectifying the procedural irregularities. Different High Courts have taken varied positions on this issue.

The High Court of Kerala in Babu M v. State of Kerala, 2025, while adjudicating the challenge to the arrest of an accused on the ground of violation of Article 22(1), directed the release of the accused with a caveat that the order shall not come in the way of re-arrest in accordance with law. Similarly, the Delhi High Court in Anwar Khan @ Chacha v. The State of NCT of Delhi 2025 held that since there is no statutory bar or judicial bar for re-arresting the accused person after the first arrest is held to be non-est, investigating officers, after rectifying the procedural irregularities, may re-arrest the accused. The High Court placed reliance on Rakesh Kumar Paul v. State of Assam (2017), wherein the Supreme Court held that in circumstances where the accused is enlarged on regular bail due to non-filing of charge sheet within the statutory period under Section 167(2) CrPC, the investigating agency may re-arrest the accused on cogent grounds.

The finding of the Delhi High Court in Anwar @ Chacha seems to be unreasonable, as the Supreme Court in Rakesh Paul (Supra) was deciding the issue of grant of default bail to the accused in case of charge sheet not being filed within the statutory period.

The Bombay High Court, in Vicky Bhagat Kalyani v. State of Maharashtra (2025), while considering the interpretation of Section 50 CrPC, extensively discussed the effect of re-arrest after the initial arrest is vitiated by non-compliance of furnishing grounds of arrest. The question of law was eventually referred to a larger bench for consideration.

In Prabir Purkayastha, the Supreme Court, after quashing the remand order on the ground of arrest of the accused being illegal, directed the release the accused on bail on the satisfaction of the trial court because the chargesheet was filed and cognizance was taken. If we draw an inference from the ratio of Prabir Purkayastha, in every case where the chargesheet has been filed and the court releases the accused on bail after coming to the conclusion that the arrest of the accused is non-est for want of grounds of arrest, investigating officials cannot re-arrest the accused person for the same offences unless the accused jumps any of the conditions of bail.

Drawing a similar analogy, in cases where the chargesheet is not filed and the arrest stands vitiated for want of supply of grounds, the reasoning of re-arrest of an accused person after rectifying the procedural irregularities, as held by several High Courts, seems to be little flawed. The prosecution can’t be given a second opportunity to cure its errors and re-arrest the accused. Granting a second opportunity to the investigating agency to arrest the accused merely after curing the procedural irregularity would bring the liberty of the accused under a cloud, depriving him/her of fundamental rights under Article 21. Admittedly, in cases where the accused does not co-operate with the investigation or tries to manipulate the material witness, or if any material surfaces which prima facie establishes the culpability of the accused during the investigation, the authorities may arrest the accused after seeking leave of the court.

Naman Sherstra and Gaurav Kumar are advocates practicing before the Supreme Court of India.