1. Where an accused is released on the ground that his arrest contravened Article 22(1) or 22(2) of the Constitution, can he be subjected to a fresh arrest for the same offence once the procedural defects are duly rectified? - This is the common question that arises for consideration in this batch of bail applications.

Facts

2. The applicants in all the bail applications are the accused involved in offences under the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short, “the NDPS Act”). Though they were released on bail for non-compliance with either Article 22(1) or 22(2) of the Constitution of India, they were rearrested immediately after release. They seek regular bail mainly on the ground that a subsequent arrest in the same crime after the first arrest was found to be illegal, is impermissible in law and violative of Article 21 of the Constitution.

3. Considering the importance of the question of law involved, I have appointed Sri.Sreegesh M.K. as Amicus Curiae.

4. I have heard Sri.P.Mohamed Sabah, Sri. Sam Isaac Pothiyil and Sri.K.Sunilkumar, the learned counsel for the applicants, Sri.K.A.Noushad, Smt.Sreeja V. and Sri.M.C.Ashi, the learned Senior Public Prosecutors and Sri. Sreegesh M.K., the learned Amicus Curiae.

Rival Submissions

5. The learned counsel for the applicants submitted that the act of the police officials arresting the applicants after being enlarged on bail for violation of Article 22(1) or 22(2) of the Constitution is arbitrary and a clear violation of the fundamental right guaranteed to them under Article 21. The learned counsel further submitted that there exists no statutory provision authorising rearrest when the initial arrest has been declared non-est. The learned counsel also submitted that there was no fresh evidence or development justifying the rearrest and remand of the applicants. The judicial custody of the applicants consequent to their re-arrest is illegal, being a violation of the mandatory procedure and safeguard enshrined in law, added the counsel. Per Contra, the learned Senior Public Prosecutors submitted that there is no legal bar to rearrest a person whose previous arrest has been declared illegal on the ground of procedural error and rearrest is permissible under the law once procedural deficiencies in the arrest are rectified. The learned Senior Public Prosecutors further submitted that the arrest of the applicants was held to be non-est on the ground of procedural irregularity and not on any substantive finding that there was insufficient material to justify the arrest. They also submitted that the decision to arrest or rearrest is purely within the domain of the investigating agency, and in the present cases, sufficient materials are there to justify the arrest, and all procedural safeguards under law have been followed.

6. The learned Amicus Curiae examined the issue on a broader canvas by adopting a wide-angle, multidimensional approach, supported by extensive research and comparative insight. A layered analysis was undertaken. The Amicus cautioned that unchecked rearrest powers could render constitutional guarantees illusory, while at the same time recognising that technical lapses should not immunise offenders from prosecution. A calibrated approach was suggested, wherein rearrest may be permissible subject to strict judicial oversight. The sum and substance of the submissions of the learned Amicus Curiae are as follows:

                  * The power of the police to arrest a person could be exercised at any time during the course of the investigation based on the jurisdictional facts that justify the exercise of such power.

                  • Though the Cr.P.C./BNSS does not expressly provide for subsequently arresting a person who has been released at the stage of investigation, it is open to the investigating agency to exercise the power conferred by Section 41 of Cr.P.C./Section 35 of BNSS and arrest such a person.

                  • The Cr.P.C./BNSS does not expressly or impliedly eschew such subsequent arrest.

                  • An accused cannot claim blanket immunity from rearrest merely because the initial arrest was found vitiated on procedural grounds. A lapse/omission on the part of the investigating agency, whether inadvertent or deliberate, cannot and should not result in a blanket infirmity to the accused from any future arrest in the same case.

                  • The procedural safeguard envisaged by the Constitution and Cr.P.C/BNSS, such as the requirement to furnish the written grounds of arrest, and the mandate to produce the accused before the Magistrate within 24 hours of custody, are not intended to create a situation where an accused can avoid arrest altogether due to inadvertent lapses or wilful acts of the investigating agency particularly when such lapses have been cured. A contrary interpretation would not only defeat the ends of justice but also reduce the investigative process to nullity.

                  • However, the State cannot be given free rein to re-arrest in such circumstances. It is necessary to have a uniform process of judicial scrutiny before such a subsequent arrest.

                  • In cases where the person arrested approaches the Court complaining about his arrest being violative of Article 22(1) and (2), the Courts either direct the person arrested to be released on bail or declare the arrest as illegal and direct the person to be released forthwith, and in some cases, accord liberty to the investigating agency to re-arrest such person. In those cases where the person arrested is directed to be released on bail, such a person enjoys a protective layer of judicial scrutiny qua subsequent arrest and detention, since such a person cannot be arrested subsequently without cancelling the bail. Ironically, in cases where the person arrested is directed to be released forthwith (when he is not released on bail) for violation of the same constitutional mandate, such a person may not get the benefit of the aforesaid layer of judicial scrutiny prior to his subsequent arrest, though in both cases the person may be otherwise identically placed.

                  • The digression from adhering to consistent, uniform and predictable application of laws while releasing an accused after declaring the initial arrest as being violative of the constitutional mandate under Article 22(1) and (2) has led to different approaches affecting the rearrest/subsequent arrest of such persons. These differences in approach have triggered inconsistency, uncertainty and unpredictability qua the susceptibility and safeguards available during the rearrest. This has also led to unintended discrimination among similarly placed accused in the matter of subsequent arrest. With the object of obliterating the possibility of such an approach based discrimination, it is necessary to formulate a legal proposition which would enable the exercise of judicial application of mind on the necessity to rearrest.

                  • When an accused is directed to be released for the default committed by the investigating agency to adhere to the constitutional mandate of Article 22(2), prior to his subsequent arrest, the investigating agency should seek judicial application of mind to the necessity of such subsequent arrest and detention of the person, as the same is envisaged by the procedure established by law.

Analysis and Findings

7. Chapter V of Cr.P.C and BNSS delineate the statutory framework governing the arrest of a person. Section 62 of BNSS (Section 60A of Cr.P.C.) mandates that no arrest shall be made except in accordance with the provisions of the Sanhita or any other law for the time being in force providing for arrest. Section 35 of BNSS (Section 41 of Cr.P.C.) empowers a police officer to arrest any person without a Magistrate's order or warrant and sets out the parameters for exercising that power.

8. The power of the State to arrest an individual and curtail his liberty is circumscribed by a procedural fortress of various constitutional and statutory prescriptions. Amongst other protections, Article 22(1) of the Constitution, as well as Section 47 of BNSS (Section 50 of Cr.P.C.), ordains that an arrested person should 'be informed, as soon as may be, of the grounds for such arrest'. Further, an accused arrested without a warrant by the police has a constitutional right under Article 22(2) of the Constitution of India and Section 58 of BNSS (Section 57 of Cr.P.C.) to be produced before the Magistrate without unnecessary delay and in no circumstances beyond 24 hours, excluding the time necessary for the journey. During the investigation of a case, an accused can be kept in detention beyond a period of 24 hours only when it is authorised by the Magistrate in exercise of power under Section 187 of BNSS (Section 167 of Cr.P.C.).

9. The issue whether failure to communicate the written grounds of arrest, or non-production of the accused before the Magistrate within twenty-four hours of arrest, vitiates the arrest and necessitates release, is no longer res integra. Relying on Article 22(1) of the Constitution and Section 47 of the BNSS/Section 50 of Cr.P.C., the Supreme Court, in Pankaj Bansal v. Union of India [(2024) 7 SCC 576] and Prabir Purkayastha v. State (NCT of Delhi) [(2024) 8 SCC 254], held that the requirement to communicate the grounds of arrest/detention is sacrosanct and cannot be breached in any situation. The Court emphatically held that an arrest without such communication is illegal in the eyes of the law. In Mihir Rajesh Shah v. State of Maharashtra and Another, [2025 SCC OnLine SC 2356], the three-Judge Bench of the Supreme Court made it clear that the grounds of arrest must be communicated to the arrested person in every case without exception, and the mode of communication must be in writing in the language he understands. However, it was clarified that the requirement to communicate the written grounds of arrest to the arrestee would operate prospectively. In Kasireddy Upender Reddy v. State of Andhra Pradesh [2025 SCC OnLine SC 1228], it was held that the grounds of arrest should not only be provided to the arrestee but also to his family members or relatives so that necessary arrangements are made to secure the release of the person arrested at the earliest possible opportunity, to make the mandate of Article 22(1) meaningful and effective; failing which, such an arrest would be rendered illegal. Following the principles in Pankaj Bansal (supra), the Supreme Court in Vihaan Kumar v. State of Haryana [2025 SCC OnLine SC 269] set out broader principles directing Magistrates to inform the accused of the grounds of arrest when they are produced. Interpreting Article 22(2) of the Constitution of India and Section 58 of BNSS (Section 57 of Cr.P.C.), the Supreme Court in Directorate of Enforcement v. Subhash Sharma [2025 SCC OnLine SC 240] held that non-production of the accused before the Magistrate within the mandate of 24 hours of arrest is completely illegal, vitiates the arrest, and infringes fundamental rights under Articles 21 and 22(2). It was further held that once a Court, while dealing with a bail application, finds that the fundamental rights of the accused under Articles 21 and 22 of the Constitution have been violated while arresting the accused or after arresting him, it is the duty of the Court dealing with the bail application to release the accused on bail. These judgments reaffirm the constitutional promise under Article 22(1) and (2) and the legislative command under Sections 47 and 58 of BNSS (Sections 50 and 57 of Cr.P.C.) that the communication of grounds of arrest or production of the accused before the Magistrate within 24 hours of arrest is not a procedural nicety but a constitutional necessity, and any infraction of the same must result in the release of the accused forthwith. Yet, the crucial question is, can the investigating agency re-arrest the person so released?

10. The concept of re-arrest is not alien to Indian criminal jurisprudence. The concept operates in several distinct legal scenarios. The phraseology of Section 35 of BNSS (Section 41 of Cr.P.C) signifies that the power to arrest under the said section is not a one-time measure, and the said power is exercisable so long as the same satisfies the statutory parameters laid down therein. The legislature has specifically referred to re-arrest in the context of Section 40(2) of BNSS/Section 43(2) of Cr.P.C. Under Section 40(1) of BNSS (Section 43(1) of Cr.P.C), any private person can arrest a person who commits a non-bailable and cognizable offence in their presence or is declared a proclaimed offender. The private individual must hand the person over to a police officer, who is then required by law to re-arrest them. In this context, it is pertinent to note that in Section 40(2) of BNSS, the expression “custody” is employed in lieu of the expression “re-arrest” in Section 43(2) of Cr.P.C. This signifies that the legislature is not oblivious to the concept of re-arrest, but the necessity of specifically providing for re-arrest was not warranted, since the power of a police officer to arrest any person without a warrant/order of a Magistrate is provided by Section 35 of BNSS/Section 41 of Cr.P.C.

11. Section 480(5) of BNSS (Section 437(5) of Cr.P.C) empowers any Court that has released a person on bail to direct that such person be arrested and committed to custody if circumstances justify cancellation. Similarly, Section 483(3) of BNSS (Section 439(2) of Cr.P.C) confers on the High Court and the Court of Sessions the power to arrest a person who has been released on bail and take them back into custody. The police can re-arrest an accused if the investigation reveals new facts leading to the addition of a more serious non-bailable offence to the existing FIR. Re-arrest is also permitted if a Court formally cancels a previously granted bail, typically due to the misuse of liberty, witness intimidation or evidence that the accused violated the bail conditions. Similarly, if an accused escapes or is rescued from lawful custody, the person who had them in custody is permitted to immediately pursue and rearrest them without a warrant anywhere in India. The arrest of an accused after the filing of the final report is governed by Section 193(5) of BNSS (Section 173(4) of Cr.P.C). The said provision enables a Magistrate to cancel the bail bond depending on the merits of the report filed by the investigating agency. Section 346(2) of BNSS (Section 309(2) of Cr.P.C) provides for remanding the accused by warrant after the stage of taking cognizance when the accused is in custody. Section 431 of BNSS (Section 390 of Cr.P.C) expressly recognises the power to arrest the accused even after an order of acquittal is passed.

12. The judgments of the Supreme Court expressly acknowledge the power to arrest a person who has been released. The acknowledgment of such power is manifest from the following cases: In Rakesh Kumar Paul v. State of Assam [(2017) 15 SCC 67], the Supreme Court considered the issue of entitlement of the accused therein to be released on default bail under Section 167 of Cr.P.C and held that such release will not prohibit the arrest or re-arrest of the accused therein on cogent grounds in respect of the subject charge and upon arrest or re-arrest, the accused is entitled to apply for regular bail which deserves to be considered on its merits. In Bikramjith Singh v. State of Punjab [(2020) 10 SCC 616], the Supreme Court reiterated that releasing the accused on default bail does not operate as an embargo for arresting him/re-arresting him on cogent grounds. In State of Karnataka v. Sri Darshan [2025 SCC OnLine SC 1702], the Supreme Court laid down that Section 439(2) of Cr.P.C empowers the High Court or the Court of Sessions to direct the re-arrest of an accused who has been released on bail, if such direction is deemed necessary. It was held that Section 437(5) of Cr.P.C. enables a Magistrate to cancel the bail granted under Section 437(1) or (2) of Cr.P.C. It was further held that these provisions underscore the legislative intent that the power to grant bail is not absolute but is always subject to judicial reconsideration in the light of emerging facts or legal infirmities in the original order. In State through CBI v. T. Gangi Reddy [(2023) 4 SCC 253], the Supreme Court took the view that when special reasons are made out from the final report or when the final report reveals the commission of a non-bailable offence, the bail in favour of a person, who has been released on default bail under Section 167(2) of Cr.P.C can be cancelled considering Section 437(5) and Section 439(2) of Cr.P.C. The Supreme Court laid down that though the mere filing of the final report, after release of a person on default bail under Section 167(2) of Cr.P.C by itself cannot be a ground to cancel the bail of such person, on filing of the final report on conclusion of the investigation if a strong case is made out and on merits it is found that he has committed a non-bailable offence, the bail granted to such a person can be cancelled on merits and he can be taken into custody. The Constitution Bench of the Supreme Court in State of U.P. v. Poosu and Another [(1976) 3 SCC 1] held that re-arrest and detention of an accused who had been acquitted by the High Court of a capital offence does not in any way offend Article 21 or any other fundamental right guaranteed in Part III of the Constitution.

13. As rightly observed by the learned Amicus, while the BNSS/Cr.P.C. does not expressly contemplate the subsequent arrest of a person released at the stage of investigation, the investigating agency may invoke the power conferred under Section 35 of the BNSS (Section 41 of the Cr.P.C.) to effect such arrest. The applicants, however, contend that this power cannot be extended to re-arrest an accused who has been released owing to non-compliance with the constitutional mandate under Article 22(1) and (2). They submit that affording the investigating agency a second opportunity to arrest, merely after curing a procedural irregularity, would imperil the liberty of the accused and erode the fundamental guarantees under Article 21. It is urged that a second arrest, founded only on rectification of a procedural lapse, would enable the agency to reset the remand clock and secure a fresh period of custody for its own default—an approach that strikes at the core of Article 21 and the rule of law. In matters touching personal liberty, the State cannot claim a second chance. Procedural compliance is not a mere formality; it is the very essence of the rule of law. I am unable to subscribe to these submissions for the following reasons.

14. The power to arrest during investigation lies exclusively within the domain of the investigating agency. An effective and efficient investigation is a facet of Article 21 of the Constitution. Its efficacy is non-negotiable, for it serves the larger societal objectives of crime detection, prevention, and eradication, while ensuring justice to the victim. Where an accused is released owing to non-compliance with Article 22(1) and (2), the lapse reflects an omission on the part of the investigating agency. The possibility of such non-adherence being deliberately orchestrated by a police officer in collusion with an influential accused cannot be ruled out. In the paramount interest of society, such omission—or even deliberate evasion of judicial scrutiny of remand—cannot be construed as an absolute bar to a subsequent arrest, provided the exercise of power remains subject to constitutional and statutory limitations. The societal imperative to arrest or detain may arise in myriad circumstances: organised crimes against the State, commission of serious offences both under the Penal Code and Special Acts, the possibility of fleeing from trial, the possibility of tampering with evidence, the act of threatening witnesses, and such other circumstances. The recognition of the concept of a subsequent arrest (in the aforesaid scenario) is integral to maintain the balance between the personal liberty of an accused and the quest for an efficient investigation.

15. Neither the constitutional safeguards embodied in Article 22(1) and (2) nor the provisions of the BNSS/Cr.P.C. impose an absolute fetter on the power to subsequently arrest a person released on account of infraction of Article 22(1) and (2). If such a release is construed as an absolute immunity from arrest, detention, or custody, it would amount to stifling the investigation at its inception, notwithstanding that the person so released may still fall within the ambit of Section 35 of BNSS/Section 41 of the Cr.P.C. It would further import into the constitutional and statutory scheme an embargo which both the Constitution and the legislature have expressly and impliedly eschewed. Such a construction would also foreclose judicial determination of the necessity of remand, as contemplated under Section 187 of BNSS/Section 167 of the Cr.P.C. An embargo not expressly or impliedly provided cannot be read into the statute (see State of Gujarat v. Dilipbhai Nathjibhai Patel, (1998) 3 SCC 234).

16. Various High Courts and the Supreme Court upheld the power of the police to arrest the accused after he/she has been released for non-compliance with the Constitutional mandate. The Delhi High Court in Anwar Khan and Others v. State NCT of Delhi [2025 SCC OnLine Del 4929] held that since there is no statutory bar or judicial bar for re-arresting the accused person after the first arrest is held to be non-est, investigating officers, after rectifying the procedural irregularities, may re-arrest the accused. This Court, in Babu v. State of Kerala (2025 (2) KLT 817), while adjudicating the challenge to the arrest of an accused on the ground of violation of Article 22(1), directed the release of the accused with a caveat that the order would not preclude a lawful re-arrest and would not come in the way of re-arrest in accordance with law. In Dhanshala Prakash Vishwakarma v. State of Maharashtra (Crl.Writ Petition No.4539/2025 decided on 7/10/2025), the Bombay High Court, while releasing an accused for infraction of Article 22(2), granted liberty to the investigating officer to re-arrest the accused. It was observed that, since the detenu was released due to violation of constitutional provisions, the order cannot be construed as a bail order, and there is no necessity to seek cancellation of bail if the investigating agency decides to re-arrest the accused. In Manish Kumar v. State of H.P (2025 SCC OnLine HP 6145), the Himachal Pradesh High Court, while releasing the accused for non-supply of grounds of arrest, clarified that release would not preclude the State from re-arresting the accused after rectifying the procedural defects of prior illegal arrest. The Bombay High Court in Vicky Bharat Kalyani v. State of Maharashtra (2025 SCC OnLine Bom 193) examined in detail the implications of Section 50 of the Cr.P.C. on this question and, after finding the matter to be of far-reaching consequence, referred it to a larger bench. However, it was observed that there was no legal bar on re-arresting an accused who had been released earlier due to failure to furnish written grounds of arrest. The Supreme Court has recently addressed this issue in Mihir Rajesh (supra) and held that a person released due to failure to communicate the grounds of arrest in writing can be taken back into custody with the permission of the Magistrate after the supply of the grounds of arrest in writing, setting forth the explanation for non-supply thereof.

17. Once the power to re-arrest the person so released is recognised in law, the next question that arises for consideration is: can he/she be automatically re-arrested by the investigating agency without obtaining an appropriate order from the court concerned?

18. In cases where the person arrested approaches the court complaining about his arrest being violative of Article 22(1) or (2), the court ordinarily passes two kinds of orders: (i) directs the person arrested to be released on bail, and (ii) declares the arrest illegal and directs the person to be released forthwith. Section 59 of the Cr.P.C/Section 60 of the BNSS stipulates that no person who has been arrested by a police officer shall be discharged except on his own bond or bail bond or under the special order of a Magistrate. As one of the discourses available to discharge the person arrested, as envisaged by the statute, is by discharging him on bail, the direction to release the person arrested on bail for infraction of the constitutional safeguard provided by Article 22(1) and 22(2) aligns with the scheme of the statute. It is pertinent to note that though the phraseology of Section 59 of Cr.P.C does not specifically provide for the legislative fiction as provided under Section 167(2) of Cr.P.C, but still the requirement to release the accused on bail has been applied to cases where the initial arrest was declared to be illegal and non-est on account of violation of the constitutional mandate provided by Article 22(1) & (2) [Subhash Sharma (supra)].

19. It is settled that a person released on bail cannot be rearrested subsequently without first cancelling the bail. In Uday Chand and Others v. Sheik Mohammed Abdullah, Chief Minister J & K [(1983) 2 SCC 417], the Supreme Court directed the release of the accused therein on bail. They were arrested thereafter for some offences alleged to have been committed by them prior to the date when they were released on bail. The Supreme Court held that if, after passing the order of bail, the State considered it fit to arrest the accused therein for any other offences, it was the bounden duty to apprise the court before taking the person into custody. In Manoj Suresh Jadav v. State of Maharashtra (2018 (2) KHC 848), the petitioners therein were granted bail for certain offences. During the course of the investigation, the police added a more serious offence (Section 376 of IPC) against the petitioners and rearrested them. The Supreme Court held that it is not permissible for the State to simply rearrest the petitioners by ignoring the earlier bail order. The Supreme Court laid down that, having regard to the provision of Section 439(2) of Cr.P.C, the State is at liberty to apply for cancellation of bail and seek custody of the accused. In Bashir & Others v. State of Haryana [(1977) 4 SCC 410], the issue of subsequent arrest of the accused therein arose after releasing them on default bail. Initially, the bail applications filed by the appellants therein were rejected on merits by the Sessions Court; thereafter the High Court also declined to release them on bail. However, later, on account of the failure of the investigating agency to file the final report, they were released on default bail following the mandate of Section 167 (2) of Cr.P.C. Thereafter, the police filed the final report, the Magistrate committed the case to the Sessions Court and released the appellants therein on bail. The Sessions Court cancelled the bail on the ground that, after the filing of the charge sheet, it was open to the Court to cancel the bail earlier granted, which was based on the default committed by the investigating agency. The High Court upheld the order passed by the Sessions Court cancelling the bail on the said ground. Before the Supreme Court, the appellant contended that, merely on the basis that the charge sheet was filed (that the initial defect was cured), the bail order granted earlier ought not to have been cancelled, and it could have been cancelled only by exercising the power under Section 437(5) of Cr.P.C. The Supreme Court held that the mere fact that a charge sheet has subsequently been filed is not sufficient to commit the accused to custody. The Supreme Court further held that the mere fact that before directing the appellants to be released on default bail, regular bail on merits was declined is also not relevant for the purpose of taking recourse to the power conferred by Section 437(5). The Supreme Court laid down the ratio that the power under Section 437(5) of Cr.P.C. could be exercised by the court after coming to the conclusion that after the challan had been filed there are sufficient grounds that the accused had committed a non-bailable offence and that it is necessary that he should be arrested and committed to custody. Recently, in a significant ruling, the Supreme Court [Sumit v. State of U.P. & Another [2026 SCC OnLine SC 186] has held that an accused who is already on bail cannot be automatically re-arrested by the investigating agency merely because a new cognizable and non-bailable offence has been added to the charge sheet. The Court clarified that the agency must first obtain an appropriate order from the court that granted bail before proceeding with the arrest in respect of the newly added offence. In Rejimon C.B. v. CBI (2020 (2) KHC 169), this Court held that once bail is granted to a person, the said bail shall remain operative until and unless it is cancelled by the court granting the bail or by the superior court, and the investigating agency ought to seek cancellation of the bail before arresting that person.

20. The principle laid down in the aforesaid decisions—that a person released on bail cannot be arrested subsequently without first securing cancellation of the bail—applies with equal force where the release is directed on account of violation of Article 22(1) or 22(2) of the Constitution. Accordingly, if an accused is released on bail owing to the investigating agency’s failure to adhere to the constitutional mandate under Article 22(1) or 22(2), such person may be arrested only after cancellation of the bail so granted. This necessarily entails judicial evaluation of the legality of the propriety of cancelling the earlier bail, as well as of the necessity of a subsequent arrest. Such judicial scrutiny serves as a safeguard against arbitrary, deliberate, malicious, or mechanical exercise of the power to arrest.

21. Distinct from the aforesaid approach of releasing the person on bail (as explained hereinabove), there are instances when, on account of breach of the aforesaid constitutional mandate, the Courts have held that the arrest is non-est and have directed the accused to be released forthwith without enlarging him on bail [Dhanshala Prakash (supra)]. There are also cases where the Court has further made it clear, in the first instance, that when the person arrested is released for violation of the constitutional mandate, such release will not prevent the investigating agency from arresting the accused again in accordance with law [Manish Kumar (supra) & Babu (supra)]. It is relevant to note that such a safeguard of judicial application of mind over the compelling necessity to subsequently arrest the person once directed to be released on bail is not available to the person so arrested when the court directs the person to be released forthwith or when liberty is granted in the initial stage itself to arrest such person thereafter. These different approaches, yielding different outcomes, perpetuate unintended discrimination between persons who may otherwise be identically placed. It is interesting to note that such varied outcomes emanate from the application of the same statutory framework and may apply in respect of identical offences. It is desirable that, in matters concerning personal liberty, the law should lean towards securing a consistent and predictable outcome. Two persons arrested initially and directed to be released for violation of the constitutional mandate cannot keep guessing why one of them is subsequently arrested by the police, dehors any form of judicial scrutiny and the other is conferred with the safeguard of not being subjected to subsequent arrest without judicial scrutiny. To obviate the possibility of such approach-based discrimination, it is imperative to formulate a legal proposition that mandates judicial application of mind to the necessity of subsequently arresting or detaining a person, even in cases where the Court directs release simpliciter and not on bail. Such a proposition would accord with the dictum in Mihir Rajesh (supra), which holds that re-arrest must muster the authority of the Magistrate. I consider it apposite to quote para 55 of the judgment in Mihir Rajesh (supra), wherein the Supreme Court settled this issue, negating the power of the police to re-arrest without seeking permission of the Magistrate:

                  “It goes without saying that if the above-said schedule for supplying the grounds of arrest in writing is not adhered to, the arrest will be rendered illegal, entitling the release of the arrestee. On such release, an application for remand or custody, if required, will be moved along with the reasons and necessity for the same, after the supply of the grounds of arrest in writing, setting forth the explanation for non-supply thereof within the above stipulated schedule. On receipt of such an application, the magistrate shall decide the same expeditiously and preferably within a week of submission thereof by adhering to the principles of natural justice.”

22. In Mihir Rajesh (supra), the Supreme Court was dealing with the release of the arrestee on account of the breach of the constitutional mandate prescribed by Article 22(1) regarding supplying grounds of arrest and the scope of re-arresting such an arrestee with the permission of the Magistrate after the supply of the grounds of arrest in writing, setting forth the explanation for non-supply thereof. In other words, Mihir Rajesh (supra) does not specifically deal with the rearrest of an arrestee who has been released for not producing him before the Magistrate within 24 hours of his arrest, as mandated under Article 22(2).

23. Article 22(1) and (2) offer two different kinds of safeguards. While the noncompliance of Article 22(1) may be curable, the breach of Article 22(2) is not curable, as the person who is arrested has already undergone detention beyond 24 hours. The order declaring arrest as illegal may, though, entitle him to be released, but it does not efface the detention beyond

24 hours that he has suffered. The constitutional mandate of Article 22(2) and the statutory provisions in the BNSS/Cr.P.C. manifesting the said constitutional objective collectively interdict the detention of a person arrested by the police/investigating agency beyond 24 hours without the authority of a Magistrate. The expression "authority of Magistrate in Article 22" in the context of Cr.P.C. contemplates "In the absence of a special order of a Magistrate under Section 167....' The “24 hour Rule” ensures immediate application of the judicial mind to the arrest. The maximum period provided for detention without judicial approval is 24 hours. If at all, the personal liberty is to be curtailed by detaining the person after 24 hours, the procedure established by law mandates that the same can be done only through judicial authorisation. When an accused is directed to be released for violation of the constitutional mandate under Article 22(2), and is thereafter re-arrested almost contemporaneously for the same offence without the authority of the Magistrate, reckoning a fresh period of twenty-four hours from the subsequent arrest introduces variables into the interpretation of Article 22(2). The starting point and terminus of the 24 hour period thereby become susceptible to manipulation. In such sequiturs of release and re-arrest, the 24 hour limit may in reality stretch to 48 hours or more. The expression ‘twenty-four hours from the date of arrest’ and the bar against police detention beyond that period without Magistrate’s authorisation admit of no elasticity. If, in cases of subsequent arrest, the 24 hour period is to be computed afresh, the safeguard becomes hyper-elastic, blurring the constitutional guarantee into oblivion and furnishing the investigating agency with a tool to avert judicial scrutiny once the outer limit is breached. Such an interpretation would create a statutory vacuum.

24. Section 187 of the BNSS (corresponding to Section 167 of the Cr.P.C.) is a sequitur to Section 58 of the BNSS (Section 57 of the Cr.P.C.) and the constitutional mandate embodied in Article 22(2). Sections 58 and 187 of the BNSS (Sections 57 and 167 of the Cr.P.C.) are integral facets of the safeguards guaranteed under Articles 21 and 22(1) and (2). They serve the vital purpose of maintaining equilibrium between the demands of effective investigation and the protection of personal liberty. These provisions prescribe the maximum permissible limits for restraint on liberty at different stages of investigation and categorically forbid any prolongation beyond the stipulated caps. Such limits are inviolable and cannot be diluted, either directly or through subterfuge. The need for efficient investigation cannot justify the breach of the sixty/ninety-day ceiling imposed by Section 187 of the BNSS (Section 167 of the Cr.P.C.). Even where the investigating agency defaults in filing the charge sheet within the prescribed period, and the accused is released on account of such default, the subsequent filing of the charge sheet or curing of the defect does not, by itself, entitle the police to re-arrest the accused. Re-arrest is permissible only after cancellation of bail [see Rajnikant Jivanlal v. Intelligence Officer, Narcotic Control Bureau, New Delhi, (1989) 3 SCC 532]. If release on default under Section 187(2) of the BNSS (Section 167(2) of the Cr.P.C.) is subject to this interpretation, the same principle must govern Section 58 of the BNSS (Section 57 of the Cr.P.C.), since Section 187 is a sequel to Section 58 and both operate as an integrated code. Hence, when an arrest is declared void ab initio, and the accused is directed to be released for the investigating agency’s failure to comply with the constitutional mandate under Article 22(1) or (2), the State cannot mechanically resort to ‘re-arrest’ as a means to bypass judicial censure. Any subsequent arrest must be preceded by judicial approval, upon due consideration of the necessity for such arrest and detention. A second arrest is permissible only with the sanction of the Magistrate or Court. This balanced formulation safeguards individual liberty while preserving the legitimate interests of investigation. The proposition laid down by the Supreme Court in para 55 of Mihir Rajesh (supra) embodies these underlying principles.

                  Conclusions

                  The upshot of the above discussions and findings is as follows:

                  * Where an accused arrested during investigation is directed to be released by the Magistrate or Court owing to the investigating officer’s failure to comply with the constitutional mandate under Article 22(1) and (2), such release does not operate as an absolute bar to a subsequent arrest or detention in the course of investigation into the same offence, provided the jurisdictional facts stipulated under Section 35 of the BNSS/Section 41 of the Cr.P.C. are satisfied.

                  * Neither the constitutional safeguards embodied in Article 22(1) and (2) nor the provisions of the BNSS/Cr.P.C. impose an absolute fetter on the power to subsequently arrest a person who has been released on account of an infraction of Article 22(1) and (2).

                  * Where an accused challenges his arrest before the Magistrate or Court on the ground that it violates Article 22(1) or (2), the Magistrate or Court may either direct him to be released on bail or declare the arrest illegal and order his immediate release.

                  * In case such a person has to be subsequently arrested, the investigating agency must first obtain cancellation of bail or secure permission to arrest, as the case may be. It would safeguard the individual's liberty while preserving the police's legitimate right to investigate.

                  * Where an accused is released on bail, any subsequent arrest can be effected only after cancellation of the bail so granted.

                  * Even in cases where the Magistrate or Court directs release simpliciter, without granting bail, the investigating agency must move an application seeking permission of the Magistrate or Court for arrest, remand, or custody.

                  * Upon receipt of such an application, the Magistrate or Court shall decide it expeditiously and in any event within one week of its submission, after affording the accused an opportunity of hearing, as held in Mihir Rajesh (supra).

                  * Where an accused is released owing to infraction of Article 22(1) or (2), any subsequent arrest or remand without first seeking cancellation of bail or permission to arrest, as the case may be, shall be illegal, entitling the accused to immediate release

Relief

25. On the merits, the applicants in these bail applications stand indicted for the offence under Section 22(c) of the NDPS Act, involving possession of commercial quantities of narcotic drugs. The applicants in BA Nos. 13215/2025, 13611/2025, 14783/2025, 441/2026, 1005/2026, and 1009/2026 were released for non-compliance with Article 22(1) of the Constitution, owing to failure to communicate the grounds of arrest. The applicant in BA No. 14279/2025 was released for violation of Article 22(2), on account of non-production before the Magistrate within twenty-four hours of detention. All the applicants were rearrested immediately upon release from jail, either within the compound or just outside the premises, in connection with the very same crime, and were again remanded. These rearrests were effected without obtaining prior permission from the Court that had granted bail. Further, in cases where release was ordered for non-communication of the grounds of arrest, there is nothing on record to show that the applicants were subsequently informed of such grounds. As already stated, a person released for non-compliance with Article 22(1) or 22(2) of the Constitution can only be arrested pursuant to a direction of the jurisdictional Court. Since the police proceeded to rearrest the applicants without securing such permission or direction, the arrests stand vitiated, and the applicants are entitled to be released on bail.

                  In the result, the applications are allowed on the following conditions: -

                  (i) The applicants shall be released on bail on executing a bond for Rs.1,00,000/- (Rupees One lakh only) each with two solvent sureties for the like sum each to the satisfaction of the jurisdictional Magistrate/Court.

                  (ii) The applicants shall fully co-operate with the investigation.

                  (iii) The applicants shall appear before the investigating officer between 10.00 a.m and 11.00 a.m every Saturday until further orders. They shall also appear before the investigating officer as and when required.

                  (iv) The applicants shall not commit any offence of a like nature while on bail.

                  (v) The applicants shall not attempt to contact any of the prosecution witnesses, directly or through any other person, or in any other way try to tamper with the evidence or influence any witnesses or other persons related to the investigation.

                  (vi) The applicants shall not leave the State of Kerala without the permission of the trial Court.

                  (vii) The application, if any, for deletion/modification of the bail conditions or cancellation of bail on the grounds of violating the bail conditions shall be filed at the jurisdictional court.

Before parting, this Court records its deep appreciation for the painstaking research undertaken and the valuable, highly competent assistance rendered by the learned Amicus Curiae, Sri. Sreegesh M.K.