The Delhi High Court’s recent judgment clarifies the evolving standard for procedural compliance in arrests under the Bharatiya Nagrik Suraksha Sanhita, 2023, reinforcing that constitutional rights under Article 22(1) are non-negotiable - but their violation does not automatically nullify arrest without proof of prejudice. This decision balances strict adherence to due process with pragmatic judicial restraint, setting critical boundaries for law enforcement and defense practitioners alike.
Background & Facts
The Dispute
Karan Singh was arrested on 07.02.2024 in connection with FIR No. 126/2024 registered at Police Station Welcome under Sections 302, 307, and 34 of the Indian Penal Code, alleging murder and attempt to murder. He was not provided with written grounds of arrest at the time of arrest or during initial remand proceedings. The grounds were only disclosed in the chargesheet, filed over a year later.
Procedural History
- 07.02.2024: Petitioner arrested without written grounds of arrest
- 03.12.2025: Trial Court dismissed his application for regular bail
- 23.01.2026: Writ petition filed under Articles 226 and 227 of the Constitution challenging the legality of arrest and seeking release
- 11.11.2025: Co-accused Sajjan @ Manish was granted bail after the Trial Court declared his arrest illegal on similar grounds
Relief Sought
The petitioner sought a declaration that his arrest was unconstitutional for violating Article 22(1) and Section 47 of BNSS 2023, and prayed for his release on bail on grounds of parity with his co-accused.
The Legal Issue
The central question was whether the failure to provide written grounds of arrest at the time of arrest, or within a reasonable time before remand, renders the arrest illegal under Article 22(1) of the Constitution, particularly in light of the Supreme Court’s recent ruling in Mihir Rajesh Shah v. State of Maharashtra.
Arguments Presented
For the Petitioner
The petitioner relied on a series of Supreme Court judgments - Pankaj Bansal, Prabir Purkayastha, Vihaan Kumar, and Mihir Rajesh Shah - to argue that written communication of grounds of arrest is now a mandatory, non-negotiable requirement under Article 22(1) and Section 47 of BNSS 2023. He contended that the absence of such communication, even if oral grounds were given, vitiated the legality of arrest and entitled him to release. He further invoked the principle of parity, noting his co-accused had been released on bail after a similar finding of illegality.
For the Respondent
The State argued that the petition was misconceived as writ jurisdiction cannot be invoked for grant of bail. It further submitted that the petitioner was fully aware of the allegations against him, as evidenced by his counsel’s active participation in remand hearings and opposition to police custody. The State emphasized that no prejudice was demonstrated, and the delay of over 19 months in raising the grievance rendered the claim stale. It also cited State of Karnataka v. Sri Darshan to argue that procedural lapses must be judged by a prejudice-oriented test, not mechanical non-compliance.
The Court's Analysis
The Court undertook a comprehensive review of the Supreme Court’s jurisprudence on the communication of grounds of arrest. It acknowledged that Mihir Rajesh Shah had crystallized a clear mandate: written grounds of arrest must be provided before production before the magistrate, and failure to do so renders the arrest illegal.
"The constitutional mandate of informing the arrestee the grounds of arrest is mandatory in all offences under all statutes including offences under IPC 1860 (now BNS 2023). The grounds of arrest must be communicated in writing to the arrestee in the language he/she understands... 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."
However, the Court emphasized that Mihir Rajesh Shah was decided on 06.11.2025, while the petitioner’s arrest occurred on 07.02.2024. The Court held that the rule laid down in Mihir Rajesh Shah operates prospectively, and cannot be applied retroactively to invalidate an arrest that occurred before the ruling.
Further, the Court found that the petitioner had contemporaneous awareness of the grounds of arrest. His counsel appeared in court, opposed police custody, and raised allegations of false implication - all of which indicate actual knowledge of the case against him. The Court also noted that the petitioner was represented from day one, and no prejudice was shown in his ability to defend himself, seek bail, or challenge remand.
The Court invoked State of Karnataka v. Sri Darshan to affirm that mere absence of written grounds does not ipso facto invalidate arrest. The test remains whether the accused was denied a fair opportunity to defend himself. Here, no such denial occurred.
The Verdict
The petition was dismissed. The Court held that while written communication of grounds of arrest before remand is now mandatory under Article 22(1), the rule in Mihir Rajesh Shah applies prospectively. The petitioner’s arrest was not rendered illegal due to the absence of demonstrable prejudice and the inordinate delay in challenging the procedure.
What This Means For Similar Cases
Written Grounds Are Mandatory, But Not Automatically Fatal
- Practitioners must now assume that failure to provide written grounds before remand constitutes a procedural violation under Mihir Rajesh Shah
- However, retroactive application is barred - arrests prior to 06.11.2025 cannot be challenged solely on this ground
- Defense counsel should still raise the issue in bail applications and remand hearings to preserve the record
Prejudice Is the Deciding Factor
- A delay of over 19 months in raising the grievance, coupled with active legal representation, defeats the claim
- Courts will examine whether the accused was actually deprived of the ability to consult counsel, apply for bail, or challenge remand
- If the accused was represented and participated meaningfully, the violation is likely to be treated as harmless error
Parity Cannot Override Procedural Timing
- Parity arguments based on co-accused being released on bail will fail if the legal basis for their release was a post-arrest judicial ruling not applicable to the petitioner’s timeline
- Each arrest must be evaluated on its own procedural record and timing relative to Mihir Rajesh Shah
