सुप्रीम कोर्ट ने आदेश दिया: बिना सूचना व वकील के अधिकार की उपेक्षा पर तुरन्त रिहाई

The Supreme Court in a judgment on Monday (September 21, 2026) held that an arrested person kept in the dark about the grounds of arrest and without access to a lawyer was entitled to immediate release.

The right to know the grounds of arrest in writing in a familiar language, and the availability of a counsel of choice, was a sacrosanct fundamental right under Article 22(1) of the Constitution, and “cannot be breached under any situation”, a Bench headed by Justice Ujjal Bhuyan said. It has to be followed without exception and at the earliest.

“Any breach or non-compliance would entail immediate release of the arrested person because such arrest is unconstitutional. We cannot tinker with the most important safeguards provided under Article 22… Any attempt to encroach upon the fundamental rights guaranteed under Article 22(1) of the Constitution has to be frowned upon by the courts and dealt with strictly. It would vitiate the process of arrest and remand,” Justice Bhuyan observed.

The Bench, also comprising Justice Atul S. Chandurkar, said the right under Article 22(1) was a “mandatory constitutional safeguard”. It applied across the spectrum, including offences under the Indian Penal Code and under special enactments, which include the laws on terrorism and money laundering.

Probe agencies cannot shrug off a breach of Article 22(1) as a “mere procedural lapse”, Justice Bhuyan observed. Agencies cannot contend that a violation of the Article would not render custody illegal or entitle an accused to bail. The agencies had it completely wrong, the Bench said.

“When an accused is released for violation of his fundamental rights under Article 22(1), he is not enlarged on bail. He is released from illegal and unconstitutional detention,” Justice Bhuyan emphasised.

Even subsequent filing of chargesheet and order of cognisance would not validate such an arrest, Justice Bhuyan underscored.

The court was answering a question as to whether an accused who had suffered breach of Clauses (1) and (2) of Article 22 could be re-arrested for the same offence, and if so, under what circumstances. Clause (2) of the Article mandates the production of an accused person before the Magistrate within 24 hours of arrest.

There cannot be a blanket immunity against future arrest, Justice Bhuyan said, as some cases relate to grave offences. However, any such move by the probe agencies must be based on stringent judicial oversight in order to protect citizens from police arbitrariness.

The apex court directed that a specific sanction from the Magistrate concerned must precede any attempt by the police to arrest for the second time a person whose earlier arrest was declared illegal for violating rights under Article 22(1) of the Constitution.

The police must apply before the Magistrate, providing recorded reasons for seeking arrest, the judgment said. The application must be supported by a senior police officer and contain the reasons for not complying with Article 22(1) the first time.

“What is sought to be highlighted is that once there is a breach of Article 22(1), the power to rearrest the accused must not be left to the discretion of the very same authority who had violated the said provision of the Constitution. It must have the judicial imprimatur,” Justice Bhuyan observed.

Published - September 21, 2026 02:12 pm IST

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