SC relaxes rule on advance disclosure of arrest reasons

NEW DELHI: Carving out an important exception to a constitutional mandate that an accused must be informed in advance in writing about grounds of his arrest, Supreme Court Thursday that said in crimes like hit-and-run cases, police can inform him about grounds of arrest later but at least two hours prior to his production before a magistrate.

This clarification came from a bench of Chief Justice B R Gavai and Justice A G Masih on a plea filed by Mihir Rajesh Shah , who claimed his arrest in the BMW hit-and-run case of July 7, 2024, was illegal and unconstitutional as he was not informed about the grounds of his arrest prior to Mumbai police taking him into custody.

Shah, allegedly under influence of alcohol, was accused of hitting a scooter, impact of which flung the man aside, but the pillion rider was caught under the bonnet and front wheel and dragged for quite a distance resulting in her death. Shah fled the scene without informing police. He had challenged the legality of arrest alleging that he was not informed about the reasons prior to arrest.

The bench affirmed the fundamental right of every person to be informed about the grounds of his arrest and that non-communication would render the arrest illegal. It also said that it was the duty of the magistrate, before whom the accused is produced within 24 hours of arrest, to inquire whether the requirement of prior communication of grounds of arrest has been complied with.

However, SC said, "There may be situations wherein it may not be practically possible to supply such grounds of arrest to the arrested person at the time of his arrest or immediately... It may so happen that in the presence of a police officer a cognisable offence is being committed, and the factual matrix presents a tangible and imminent risk of the suspect absconding or committing further offence(s)."

Writing the judgment, Justice Masih said, "The constitutional safeguards, valuable as they are, cannot be interpreted in a manner to allow it to metamorphose into a procedural impediment that handicaps the law enforcing agencies in due lawful discharge of their duties." A balance between constitutional mandate and effective discharge of responsibilities cast on police must be struck, the bench said. It said, "We thus hold, that, in cases where the police are already in possession of documentary material furnishing a cogent basis for the arrest, the written grounds of arrest must be furnished to the arrestee on his arrest."

"However, in exceptional circumstances such as offences against body or property committed in flagrante delicto, where informing the grounds of arrest in writing on arrest is rendered impractical, it shall be sufficient for the police officer or other person making the arrest to orally convey the same to the person at the time of arrest," it said,

SC said the grounds of arrest in such exceptional cases must be communicated to the accused at least two hours prior to his production before a magistrate to enable the lawyer of the accused to study the grounds of arrest and take appropriate steps in accordance with law.