The Lucknow Bench of the High Court of Judicature at Allahabad, presided over by Justice Manish Mathur, has ruled that while the formal arrest of an accused already in custody in connection with another matter constitutes a “fresh arrest” requiring adherence to Article 22(1) of the Constitution of India, any challenge alleging non-communication of the grounds of arrest can only be maintained during the pre-cognizance investigation stage under Section 167 of the Code of Criminal Procedure (CrPC). Holding that the constitutional safeguard stands substantively fulfilled once the police report and documents are supplied under Section 207 CrPC, the Court dismissed a petition under Section 528 of the Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023, seeking to invalidate the petitioner’s arrest and subsequent remand orders after charges had already been framed.
Background of the Case
The proceedings arose from an application filed by Moti Ram Jaat alias Moti Ram Jaat Fauji under Section 528 of the BNSS, challenging a formal arrest order dated August 29, 2025, and subsequent remand orders dated August 29, 2025 (judicial remand) and September 11, 2025 (police custody remand).
The case originated from First Information Report (FIR) Case Crime No. 4 of 2025, registered under Sections 148, 152, and 61(2) of the Bharatiya Nyaya Sanhita (BNS). The petitioner was arrayed as accused number 2 in a supplementary charge sheet/final report submitted by the Uttar Pradesh Anti-Terrorist Squad (ATS) in Sessions Case No. 131 of 2025.
The ATS secured the petitioner’s production through a prisoner transit (P.T.) warrant dated August 13, 2025, while he was already in jail in connection with an earlier FIR. On August 29, 2025, he was produced before the Special Court, formally arrested on the P.T. warrant, and remanded to judicial custody, followed later by a grant of police custody.
Arguments of the Parties
Appearing for the petitioner, learned counsel Mr. Shantanu Singh, Mr. Saiyad Farhan Ali, and Mr. Shailendra Yadav contended that the petitioner’s fundamental rights under Article 22(1) of the Constitution and Section 48(4) of the BNSS were violated because no written grounds of arrest were furnished either to the accused or to his family members. They argued that there was no specific order approving judicial custody on August 29, 2025, and that under settled law, non-compliance with Article 22(1) renders both the arrest and any consequential remand orders illegal.
To support their contentions, counsel relied on Supreme Court judgments in Vihaan Kumar v. State of Haryana, Prabir Purkayastha v. State (NCT of Delhi), Pankaj Bansal v. Union of India, Mihir Rajesh Shah v. State of Maharashtra, and Kasireddy Upender Reddy v. State of Andhra Pradesh.
Opposing the petition, learned Additional Government Advocate Mr. Shivnath Tilhari, appearing on behalf of the State and the Government Advocate, argued that at the time the impugned remand order was passed, the petitioner was already detained in custody under an earlier FIR. Therefore, the ATS action was merely a “change of custody” rather than a fresh arrest, rendering Article 22(1) and Section 48(3) of the BNSS inapplicable.
The State further submitted that subsequent to the remand orders, the investigating agency filed the charge sheet on November 25, 2025, and the competent court took cognizance on January 27, 2026. The AGA argued that once a charge sheet is filed and cognizance is taken, remand granted under Section 167(2) CrPC ceases to have significance, and the initial custody cannot be challenged without challenging the cognizance order itself. In support, the State relied upon a Division Bench decision of the Allahabad High Court in Neeraj and another v. State of U.P. and another (Habeas Corpus Writ Petition No. 218 of 2026).
The Court’s Legal Analysis
Justice Mathur framed three questions for adjudication:
- Whether remanding an accused in a new FIR while he is already in custody in an earlier FIR constitutes a fresh arrest or merely a change of custody;
- Whether non-compliance with Article 22 of the Constitution renders the subsequent detention illegal; and
- Whether the Division Bench judgment in Neeraj operates as a binding precedent in this matter.
1. Second Arrest in Custody Amounts to a ‘Fresh Arrest’
Addressing the first issue, the Court cited the Supreme Court’s ruling in Dhanraj Aswani v. Amar S. Mulchandani (2024), which endorsed the Orissa High Court’s view in Sanjay Kumar Sarangi v. State of Odisha. The Supreme Court had established that when an accused already in custody is produced on a P.T. warrant under Section 267 CrPC for another offence, he submits to custody, and such formal detention constitutes a fresh arrest rather than a continuing arrest. Justice Mathur accordingly answered the first question in the affirmative.
2. Applicability of Article 22(1) to Fresh Arrests
Having held that the detention was a fresh arrest, the Court noted that the constitutional guarantees under Article 22(1) and the corresponding statutory safeguards under Section 48(2) BNSS (and Section 50/50-A CrPC) strictly apply. The Court referred to Vihaan Kumar v. State of Haryana, reiterating that communicating grounds of arrest to the arrestee and their nominated relatives is mandatory, and failure to do so vitiates the arrest and initial remand under Section 167 CrPC, as also followed by a Division Bench of the High Court in Rakesh v. State of UP.
3. Reconciling Precedents: Stages of Remand
The Court then addressed the State’s reliance on Neeraj v. State of U.P., where a Division Bench had held that recent rulings like Vihaan Kumar and Prabir Purkayastha were not binding because they did not consider earlier Constitution Bench rulings, such as Naranjan Singh Nathawan v. State of Punjab, Sanjay Dutt v. State through CBI, Ram Narayan Singh v. State of Delhi, A.K. Gopalan v. Government of India, Col. Dr. B.R. Ramachandra Rao v. State of Orissa, and Kanu Sanyal v. District Magistrate, Darjeeling, as well as the Allahabad High Court Full Bench decision in Bal Mukund Jaiswal v. Superintendent, District Jail, Varanasi.
Justice Mathur observed that Neeraj arose in the context of habeas corpus petitions, where the legality of custody is judged at the time of the return of the writ, and where older rulings (along with Basanta Chandra Ghosh v. Emperor and Makhan Singh Tarsikka v. State of Punjab) established that an earlier defect in detention does not invalidate subsequent custody under a valid judicial order.
The Court held that there is no real contradiction between the earlier Constitution Bench rulings and the recent judgments in Vihaan Kumar or Prabir Purkayastha. The distinguishing factor is the statutory stage of the criminal proceedings:
- The recent rulings in Vihaan Kumar, Prabir Purkayastha, and Pankaj Bansal apply strictly during the pre-cognizance investigation stage governed by Section 167 CrPC.
- The Supreme Court in Vihaan Kumar did not consider Sections 204, 207, 209, or 309 CrPC, and expressly observed that a breach of Article 22(1) does not vitiate the investigation, charge sheet, or trial.
- Citing Kasireddy Upender Reddy, the Court also noted that when an arrest is made on a warrant, the warrant itself constitutes the grounds of arrest when read over.
The Court observed:
“The aforesaid provisions therefore clearly implicate a situation where provisions of Article 22(1) of Constitution would be required to be followed only till the existence of the stage of Section 167 Cr.P.C. and not thereafter, particularly not after Section 207 Cr.P.C. stands complied with.”
Explaining the rationale, the Court recorded:
“The underlying purpose of Article 22(1) of Constitution is that an accused should not remain in the dark with regard to allegations levelled against him and the reasons and grounds of his arrest so that he or his family members can raise an effective defence against such allegations. The broad contours of Article 22(1), therefore, stand substantively satisfied at the stage of Section 207 Cr.P.C.”
The Court added:
“In view of discussion made herein above, it is therefore evident that challenge to the initial detention and initial order of remand can be challenged for violation of Article 22(1) Cr.P.C. only till existence of the stage of Section 167 Cr.P.C and not thereafter.”
Referring to Section 309(2) read with Explanation I of Section 167 CrPC, the Court noted that an accused who does not furnish bail continues in valid judicial custody, and subsequent remands post-cognizance stand on independent judicial footing.
Decision of the Court
Applying these principles to the facts, the Court noted that the stage of Section 167 CrPC had long passed, as the ATS had submitted its charge sheet, the competent court had taken cognizance, documents stood furnished, charges were framed, and the trial was underway. Because the petitioner did not furnish bail during the Section 167 stage, he remained in custody under subsequent proceedings.
Consequently, the Court held that the petitioner could not raise the plea of an Article 22(1) violation at this belated stage to question his detention. Finding the petition devoid of merits, the High Court dismissed the application.
Case Details:
Case Title: Moti Ram Jaat @ Moti Ram Jaat Fauji v. State Of U.P. Thru. Addl. Chief Secy. Prin. Secy. Home Lko. And Another
Case No.: APPLICATION U/S 528 BNSS No. 2601 of 2026
Bench: Justice Manish Mathur
Date: October 1, 2026
