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Second Arrest Of Accused Already In Custody In Another Case Is Fresh Arrest; Its Grounds Must Be Communicated: Allahabad High Court

Sparsh Upadhyay

5 Oct 2026 12:58 PM IST

HC said that the grounds for such arrest must be communicated to the accused in accordance with Article 22(1) of the Constitution of India.

The Allahabad High Court has held that the 'second' arrest of an accused already in custody in another case amounts to a "fresh arrest" and therefore, the grounds for such arrest must be communicated to the accused in accordance with Article 22(1) of the Constitution of India.

A bench of Justice Manish Mathur said that a subsequent formal arrest cannot be treated merely as a change of custody when the accused is already under remand in an earlier case.

The Court subsequently held that a subsequent formal arrest of an accused already in custody amounts to a fresh arrest; therefore, the safeguards under Article 22(1), read with Section 48(2) of the Bharatiya Nagarik Suraksha Sanhita (BNSS), must be followed.

Case in brief

The Court made these observations while dealing with a plea challenging the formal arrest and subsequent remand of an accused in a case registered under Sections 148, 152 and 61(2) of the BNS.

The accused was already in custody in connection with an earlier FIR when the Anti-Terrorist Squad (ATS) sought his production through a production warrant. He was thereafter formally arrested in the subsequent case and remanded to judicial custody.

The accused argued before the High Court that the remand order in the second arrest violated his fundamental right under Article 22(1) of the Constitution.

It was submitted that, since no grounds of arrest were provided to the accused or his family members, the fundamental right under Article 22(1) was infringed and the remand order was liable to be set aside.

On the other hand, the State argued that the accused was already in custody when the subsequent remand order was passed and, therefore, it was only a change of custody, not a fresh arrest. Consequently, it was contended that there was no occasion to comply with Article 22(1) or the relevant provisions of the BNSS.

High Court's Observations

Justice Mathur relied upon the Supreme Court's judgment in Dhanraj Aswani vs. Amar S. Mulchandani, wherein the Supreme Court held that an accused already in custody in one criminal case can subsequently be arrested in relation to a different offence, even while continuing to remain in custody in the first case.

In this case, the Supreme Court had held that such a person can be formally arrested in the subsequent case and that a prisoner transit (PT) warrant can thereafter be obtained for producing the accused before the jurisdictional Magistrate.

Taking into account the mandate of the Judgment, the Allahabad High Court observed that the "second arrest/detention" cannot be construed as a continuing arrest and would instead come within the scope of a "fresh arrest".

The Court thereafter expressly answered the issue in these words: "second arrest while in custody would amount to a fresh arrest".

Having held that the subsequent formal arrest amounts to a fresh arrest, the Court said that Article 22(1) of the Constitution, read with Section 48(2) BNSS, must be followed in such cases.

The Court emphasized that an accused's right to be informed of the grounds of arrest is a fundamental right under Part III of the Constitution.

Relying upon the Supreme Court's judgment in Vihaan Kumar vs. State of Haryana, the Court noted that the grounds of arrest must be communicated in a manner that effectively conveys sufficient knowledge of the basic facts constituting the grounds and in a language understood by the arrested person.

The Court noted that the burden of proving compliance with Article 22(1) lies with the Investigating Officer or agency when the accused disputes such compliance.

In Vihaan Kumar (supra), the Supreme Court has further held that non-compliance with Article 22(1) vitiates the arrest and the consequential remand orders.

However, it had added that such non-compliance does not vitiate the investigation, chargesheet, or trial, and filing a chargesheet does not, by itself, validate a breach of the constitutional mandate.

The High Court also noted the requirement to communicate the grounds of arrest to friends, relatives, or persons nominated by the arrested person. The purpose is to enable them to take prompt legal steps to secure the arrested person's release, where permissible.

The Court, however, ultimately dismissed the petition on a separate issue concerning the stage at which the legality of the initial arrest/remand could be challenged.

The Court held that the Article 22(1) safeguards discussed in the context of Vihaan Kumar operate at the stage of initial arrest and remand under Section 167 CrPC and certainly not after the applicability of Section 207 CrPC.

"Since trial in a criminal case commences with charge sheet having been filed and framing of charges, obviously as indicated herein above, once cognizance is taken under Section 190 Cr.P.C and after Section 204 and 207 Cr.P.C. have been complied with, the said observations made in Vihaan Kumar (supra) would be of no consequence."

According to the Court, that stage had already come to an end in the present case, as the chargesheet had been filed, cognizance had been taken and the trial had commenced.

The Court therefore held that the challenge to the initial detention/remand on the ground of non-compliance with Article 22(1) could not be entertained at that subsequent stage.

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