Illegal Arrest under BNSS, 2023: Constitutional Limits, Written Grounds of Arrest, and the Continuing Relevance of Habeas Corpus

Anil Kumar Mishra v. State of Madhya Pradesh & Others

Neutral Citation: 2026:MPHC-GWL:442

Decision Date: 07 January 2026

Court: High Court of Madhya Pradesh, Bench at Gwalior

Coram: Justice Gurpal Singh Ahluwalia & Justice Ashish Shroti

I. Introduction: Arrest Power in the Post-BNSS Criminal Justice System

The enactment of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) represents a structural transformation of India’s criminal procedure. However, statutory transition does not imply constitutional dilution. The judgment of the Madhya Pradesh High Court in Anil Kumar Mishra v. State of Madhya Pradesh stands as a firm reminder that arrest remains a constitutionally regulated power, bounded by the guarantees of Articles 21 and 22(1).

This decision assumes particular importance as one of the earliest High Court rulings to comprehensively interpret arrest safeguards under the BNSS regime, while simultaneously harmonising them with established constitutional jurisprudence.

 

II. Factual Background and Procedural Trajectory

The petitioner, a senior advocate and former office bearer of the High Court Bar Association at Gwalior, was arrested in connection with Crime No. 1/2026, registered by the Crime Branch, Gwalior. The FIR invoked offences under the Bharatiya Nyaya Sanhita, 2023, alongside provisions of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989.

Upon arrest, the petitioner was produced before the Judicial Magistrate First Class, Gwalior, who authorised judicial remand and rejected the petitioner’s application under Section 480 of BNSS. Thereafter, the petitioner approached the High Court under Article 226 of the Constitution.

A significant aspect of the litigation was the petitioner’s conscious decision to abandon the challenge to the FIR on merits, thereby narrowing the writ petition exclusively to the constitutional validity of the arrest. This allowed the Court to engage directly with the foundational legality of police action rather than entering the evidentiary domain.

 

III. Issues for Determination

The Court identified and addressed the following core legal issues:

1.    Whether a writ of habeas corpus is maintainable after a Magistrate has passed a remand order.

2.    Whether oral communication of grounds of arrest satisfies the constitutional mandate under Article 22(1).

3.    Whether non-supply of written grounds of arrest renders the arrest and subsequent remand illegal.

4.    Whether the pendency of a related PIL before the Principal Seat of the High Court ousts the territorial jurisdiction of the Gwalior Bench.

 

IV. Habeas Corpus after Remand: Clarifying the Legal Position

The State raised a preliminary objection that once an accused is remanded to judicial custody, habeas corpus is not maintainable and statutory remedies must be exhausted. The Court accepted this proposition only as a general rule, not as an absolute bar.

After analysing authoritative Supreme Court precedents, the Court reaffirmed that judicial remand does not operate as a constitutional shield for an illegal arrest. Where the arrest itself is vitiated due to non-compliance with mandatory constitutional or statutory requirements, a writ court may still exercise limited jurisdiction to examine the legality of such arrest.

Accordingly, while the Court declined to sit in appeal over the remand order itself, it held that the legality of the initial arrest remains justiciable, even after judicial custody has commenced.

 

V. Article 22(1): Written Grounds of Arrest as a Constitutional Imperative

A. Constitutional and Statutory Framework

Article 22(1) of the Constitution mandates that an arrested person must be informed, “as soon as may be,” of the grounds of arrest. This requirement is reinforced under the BNSS, which continues the legislative intent of ensuring transparency and accountability in arrest procedures.

The Court emphasised that this safeguard is not symbolic. It is designed to enable the arrestee to:

• Seek legal advice effectively,
• Oppose remand meaningfully, and
• Protect personal liberty from arbitrary executive action.

B. Written Communication: The Governing Rule

Relying on recent Supreme Court jurisprudence, particularly Mihir Rajesh Shah v. State of Maharashtra and Vihaan Kumar v. State of Haryana, the Court reaffirmed the following principles:

• Grounds of arrest must ordinarily be supplied in writing, in a language understood by the accused.
• Oral communication is permissible only in exceptional circumstances, such as arrests in flagrante delicto.
• Even in such exceptional cases, written grounds must be furnished within a reasonable time and in any event at least two hours prior to production before the Magistrate.
• Failure to comply results in violation of Articles 21 and 22(1), rendering the arrest illegal.

 

VI. Application of Law to the Present Case

On facts, the Court found it undisputed that no written grounds of arrest were supplied to the petitioner. The State’s own case was that the grounds were communicated orally. Although the remand order recorded that grounds were communicated, the Court held that judicial recording cannot cure a constitutional breach when written compliance is admittedly absent.

The Court further clarified that while judicial orders carry a presumption of correctness, such presumption cannot override a demonstrated violation of fundamental rights.

 

VII. Effect of Illegal Arrest on Remand and Investigation

The judgment carefully delineates the consequences of an illegal arrest. It holds that:

• An illegal arrest vitiates the arrest and the remand, but
• Does not automatically invalidate the investigation, charge-sheet, or trial.

This distinction preserves the balance between safeguarding individual liberty and ensuring that criminal proceedings are not derailed solely due to procedural infractions.

 

VIII. Jurisdictional Objection Based on Pending PIL

The State’s objection regarding pendency of a related PIL before the Principal Seat was rejected. The Court held that the subject matter of the PIL and the present writ were distinct, and no possibility of conflicting judgments existed. Where life and personal liberty are at stake, territorial technicalities must yield to constitutional adjudication.

 

IX. Final Directions

The High Court ultimately held that:

• The arrest of the petitioner was illegal and unconstitutional.
• The petitioner was directed to be released forthwith, if not required in any other case.
• The FIR and investigation were not quashed.
• Liberty was reserved to the State to proceed strictly in accordance with law, after complying with constitutional safeguards.

 

X. Ratio Decidendi

Non-supply of written grounds of arrest violates Article 22(1), renders the arrest illegal ab initio, vitiates subsequent remand, and permits limited maintainability of habeas corpus despite judicial custody.

 

XI. Significance and Practical Implications

This judgment is a milestone in BNSS-era criminal jurisprudence. It reinforces that:

• Constitutional safeguards transcend statutory transitions.
• Arrest is an exception, not the rule.
• Personal liberty remains the central axis of criminal procedure.

For practitioners, the ruling provides a powerful precedent in cases involving illegal arrest, remand challenges, and misuse of police powers—particularly under special statutes.

 

Conclusion

Anil Kumar Mishra v. State of Madhya Pradesh stands as a constitutional sentinel in India’s evolving criminal justice system. It reiterates a timeless principle: the legitimacy of state power is measured by its fidelity to liberty. Under BNSS, as under CrPC, the Constitution continues to reign supreme.

— Adv. Abhishek Jat

    (MP High Court Bench At Gwalior)

 

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