Police need magistrate’s approval for re-arrest, must state reasons: SC

New Delhi: The Supreme Court on Monday ruled that police cannot mechanically re-arrest an accused who has been released after an earlier arrest was found to have violated Article 22 of the Constitution. The court also laid down a procedure that investigating agencies must follow if they seek to take such a person back into custody.

A bench of Justices Ujjal Bhuyan and Atul Chandurkar described the safeguards under Article 22 as “fundamental principles” protecting personal liberty, rather than mere procedural requirements.

“We cannot tinker with the most important safeguards provided under Article 22. Any breach or non-compliance would entail immediate release of the arrested person because such arrest is unconstitutional,” the bench said.

Article 22(1) requires police to inform an arrested person of the grounds of arrest, while Article 22(2) mandates that the person be produced before a magistrate within 24 hours.

The bench rejected the argument that the seriousness of allegations could justify dilution of these constitutional safeguards. The court also clarified the legal position of a person released after an unconstitutional arrest.

“When an accused is released for violation of his fundamental rights under Article 21, he is not enlarged on bail. He is released from illegal and unconstitutional detention.”

Supreme Court sets procedure for re-arrest

The court, however, did not completely prohibit a subsequent arrest. Referring to the procedure laid down in Mihir Rajesh Shah vs State of Maharashtra, the bench said investigating agencies must comply with specific safeguards if they seek to take the accused back into custody.

The agency must first provide the accused with written grounds for the proposed arrest. It must then approach the jurisdictional magistrate with an application explaining why custody is required, why re-arrest is necessary and how the earlier constitutional violation occurred.

The application must also carry the endorsement of the immediate superior of the investigating officer, the bench said.

“The power to re-arrest the accused must not be left to the discretion of the very same authority who had violated the same provision of the Constitution,” the bench held.

The superior officer receiving such an application must “hand over the investigation of the case to another officer, further directing departmental inquiry for such a serious lapse,” the court said.

The same procedure will apply when an accused is kept in custody for more than 24 hours without being produced before a magistrate, the bench said.

The court also noted that compensation may be granted by courts as a public law remedy in appropriate cases.

Case involving SAD leader Jaskaranjit Singh Deol

The ruling came in a case arising from an FIR registered in May against Shiromani Akali Dal leader Jaskaranjit Singh Deol under the Protection of Children from Sexual Offences (Pocso) Act and the Bharatiya Nyaya Sanhita. The case followed a complaint by the father of a 16-year-old girl.

Deol was arrested on May 17 but was released by a magistrate the following day after the police failed to provide him with the grounds of arrest in writing.

The Punjab and Haryana High Court subsequently refused to grant him protection from fresh arrest on May 29.