Written Grounds of Arrest before Mihir Rajesh Shah: Orissa High Court Treats Article 22(1) as a Pre-Existing Right
Written Grounds of Arrest before Mihir Rajesh Shah: Orissa High Court Treats Article 22(1) as a Pre-Existing Right
Does the Supreme Court’s direction in Mihir Rajesh Shah v State of Maharashtra requiring written grounds of arrest operate only for arrests made after 6 November 2025? The Orissa High Court has answered that question with an important qualification.
In Bikram Panda alias Bikram Kumar Panda v State of Odisha, BLAPL No. 13860 of 2025, decided on 31 August 2026, Justice Aditya Kumar Mohapatra held that the word “henceforth” in Mihir Rajesh Shah does not erase the pre-existing constitutional and statutory duty to communicate the grounds of arrest effectively. On the record before it, the State failed to prove that any meaningful grounds were communicated to the petitioner. The Court held the arrest vitiated and ordered his release on conditional bail, while expressly preserving the pending trial.
The judgment should not be reduced to a proposition that every pre-Mihir arrest is invalid merely because a separate written document was not supplied. Its reasoning turns on three connected features: Article 22(1) was already binding; Vihaan Kumar v State of Haryana had already explained the burden and consequence of non-communication; and the arrest record in this case did not establish meaningful communication even orally.
The prosecution and the procedural history
The case arose from Baidyanathpur Police Station Case No. 518 of 2025. According to the prosecution, advocate Pitabash Panda was shot on 6 October 2025. The FIR was initially registered against unknown persons under sections 103(1) and 3(5) of the Bharatiya Nyaya Sanhita, 2023, read with provisions of the Arms Act, 1959.
The petitioner, a former member of the Odisha Legislative Assembly, was arrested during the investigation on 22 October 2025. A preliminary charge-sheet was later filed against sixteen accused under sections 103(1), 109(1), 61(2)(a), 111(2)(a), 238(a), 249(a) and 3(5) BNS, together with sections 25 and 27 of the Arms Act. The case was pending at the stage of charge before the Sessions Court when the High Court considered the bail application.
The prosecution alleged a conspiracy and relied on statements, call records, financial and digital material and surrounding circumstances. The High Court deliberately avoided deciding whether that material proved the accusation, observing that the evidentiary issues belonged to the trial.
The narrower constitutional question was whether the arresting agency had complied with Article 22(1) of the Constitution and sections 47, 48 and 62 of the Bharatiya Nagarik Suraksha Sanhita, 2023.
What the arrest record showed
The State maintained that the grounds had been prepared, read out and explained orally in Odia before formal arrest. It alleged that the petitioner refused to sign the arrest memo and that his father also declined to receive the papers.
The High Court examined the arrest memo, case diary and other material. Paragraph 57 records three decisive deficiencies.
First, nothing demonstrated that written grounds of arrest had actually been communicated to the petitioner. Second, the arrest memo itself did not disclose the factual grounds for arrest or detention. Third, the column labelled “Grounds of Arrest” contained only the expression “In the strength of above noted case.”
That formula identified the existence of a case but did not explain why this individual was being arrested, what acts were attributed to him, or what factual basis made custody necessary. The Court found that the investigating agency’s record did not inspire confidence that the constitutional requirement had been met.
Grounds of arrest are not the same as the accusation or FIR number
The distinction between reasons, grounds and case particulars is central.
An arrest memo may state the FIR number, police station and statutory offences. Those entries identify the proceeding. They do not necessarily communicate the grounds on which the officer decided to arrest the particular person. Meaningful grounds ordinarily require sufficient factual information about the person’s alleged role and the basis for curtailing liberty, while protecting genuinely sensitive investigative material where law permits.
The object is practical. An arrested person must be able to understand why liberty has been taken away, consult counsel, oppose remand and seek bail. A formula that only refers back to an “above noted case” leaves the arrestee to reconstruct the State’s case without being told the factual basis of the arrest.
Article 22(1): the source of the duty
Article 22(1) provides that no arrested person shall be detained without being informed, as soon as may be, of the grounds for arrest, and protects the right to consult and be defended by a legal practitioner of choice.
The Orissa High Court treated this duty as substantive rather than ceremonial. Effective information enables the right to counsel and judicial opposition to remand. It also permits the Magistrate to examine whether the arrest rests on lawful grounds rather than the arresting agency’s bare assertion.
Section 47 BNSS gives statutory form to the duty to communicate full particulars of the offence or other grounds for arrest. Section 48 requires information about the arrest and place of detention to be given to a relative, friend or other nominated person and requires the Magistrate to satisfy itself that compliance occurred. Section 62 states that no arrest may be made except in accordance with the BNSS or another law authorising arrest.
These provisions applied directly because the arrest occurred after BNSS commenced on 1 July 2024. The corresponding historical provision was section 50 CrPC. The article therefore does not substitute old and new provisions mechanically; the BNSS itself governed this 2025 arrest.
The Supreme Court line before Mihir Rajesh Shah
The High Court traced the duty through earlier constitutional authority rather than treating Mihir Rajesh Shah as its sole source.
In Harikisan v State of Maharashtra, 1962 SCC OnLine SC 117, the Constitution Bench considered effective communication under Article 22(5) in preventive detention. It explained that communication must impart sufficient knowledge in a language and manner understood by the detained person. Because Article 22(1) similarly uses the concept of informing grounds, later arrest jurisprudence drew upon that principle.
Pankaj Bansal v Union of India, 2023 INSC 866, concerned section 19 PMLA. Paragraphs 32 to 39 held that the mode of communication must be meaningful because the person needs the grounds to obtain legal advice, oppose remand and satisfy the stringent section 45 bail requirements. The Court directed that written grounds be furnished in PMLA arrests henceforth.
Prabir Purkayastha v State (NCT of Delhi), 2024 INSC 414, applied Article 22(1) in the UAPA setting. Paragraphs 19 to 22 emphasised that written grounds must be supplied so that the arrestee can consult counsel, oppose police custody and seek bail. The Court held that infringement vitiated the arrest and remand; filing a charge-sheet did not retrospectively cure the illegality.
Vihaan Kumar v State of Haryana, 2025 INSC 162, addressed an arrest under ordinary penal law. It held that informing a relative only of the fact of arrest is not a substitute for informing the arrested person of the grounds. Paragraphs 26 to 28 place the burden on the State when non-communication is specifically alleged. Paragraph 39 requires the Magistrate to examine compliance and directs release where the arrest is unconstitutional.
The Orissa High Court noted that Vihaan Kumar had been delivered on 7 February 2025. Odisha’s Information of Arrested Persons Rules, 2025 were notified on 28 February 2025 and prescribed an arrest format containing a dedicated grounds column. Both preceded the petitioner’s arrest on 22 October 2025.
What Mihir Rajesh Shah added
Mihir Rajesh Shah v State of Maharashtra, 2025 INSC 1288, decided on 6 November 2025, consolidated the law for arrests under all statutes. Paragraph 66 contains four principal conclusions:
1. Informing an arrestee of the grounds is a mandatory constitutional requirement for offences under every statute. 2. The grounds must be communicated in writing in a language the arrestee understands. 3. If written communication cannot be given on or soon after arrest, oral communication may initially be made, but written grounds must follow within a reasonable time and at least two hours before production for remand. 4. Non-compliance renders the arrest and subsequent remand illegal and entitles the person to be set free.
Paragraph 68 acknowledges that there had not previously been a consistent, binding requirement of written communication for all offences and states that the affirmed procedure would govern arrests “henceforth.” That language has generated litigation over whether an arrest preceding 6 November 2025 can be questioned for want of written grounds.
The Orissa High Court’s answer to prospectivity
Paragraph 52 of Bikram Panda draws a distinction between a newly crystallised uniform procedure and the underlying constitutional right.
The High Court accepted that Mihir Rajesh Shah supplied prospective clarity concerning a uniform written mode and timeframe for all arrests. It nevertheless held that paragraph 68 could not be read to suspend Article 22(1) for earlier arrests. The constitutional obligation to communicate grounds, together with the statutory command, already existed and had been authoritatively developed in earlier Supreme Court judgments.
The Court therefore respectfully disagreed with the contrary view of a coordinate Bench in Akash Kori alias Kasua v State of Odisha, BLAPL No. 11721 of 2025, decided on 23 February 2026, insofar as that decision treated written communication as applicable only prospectively.
This disagreement is significant. Other Orissa High Court orders, including Lacha Madi v State of Odisha, BLAPL No. 1447 of 2026, decided on 25 March 2026, had relied on the word “henceforth” to reject challenges to arrests made before Mihir Rajesh Shah. Those cases demonstrate that the effect of paragraph 68 remains a live interpretive issue at the High Court level.
Why the outcome did not depend only on retrospective writing
The factual finding prevents overreading the decision. Paragraphs 57 and 61 to 63 do not merely say that the petitioner failed to receive a separate document. The Court found that the State failed to establish communication of the grounds either at arrest or later. The only contemporaneous written expression produced was vague and circular.
The case therefore involved alleged total or ineffective communication, not simply a technically imperfect form. Article 22(1) expressly protected the right to be informed even before Mihir Rajesh Shah prescribed a uniform written procedure for all statutes.
The date sequence also mattered:
Vihaan Kumar judgment: 7 February 2025.
Odisha Information of Arrested Persons Rules: 28 February 2025.
Petitioner’s arrest: 22 October 2025.
Mihir Rajesh Shah judgment: 6 November 2025.
Thus, although the arrest predated Mihir Rajesh Shah by fifteen days, it postdated Vihaan Kumar and the State’s own arrest rules by several months.
Burden of proving compliance
Once an arrested person specifically alleges non-communication, Vihaan Kumar places the evidentiary burden on the State to demonstrate effective compliance. The High Court applied that rule to the case diary and arrest papers.
This does not mean a bare allegation must always result in release. Police may prove compliance through a contemporaneous, individualised grounds document, acknowledgment, properly witnessed refusal, audiovisual record where lawfully maintained, diary entry supported by the actual document, or other reliable material. The proof must establish what was communicated, when, in which language and by what method.
A refusal to sign is not identical to a refusal to receive. If an arrestee declines acknowledgment, the officer should still tender the document, record the refusal precisely, obtain reliable attestation and preserve a copy. An officer cannot cure an empty or vague grounds document by recording that the accused refused to sign it.
The Magistrate’s independent duty
The judgment reinforces that remand is a judicial safeguard, not an automatic administrative continuation of arrest. Before authorising custody, the Magistrate should examine whether:
1. The arrestee was informed of individualised grounds in a language understood. 2. Written grounds were supplied within the applicable legal timeframe. 3. The arrest memo and forwarding report contain a contemporaneous record of compliance. 4. A nominated relative or friend received the information required by section 48 BNSS. 5. Any alleged refusal is supported by the document tendered and reliable contemporaneous proof. 6. Production occurred within the constitutional time limit.
An unsupported case-diary statement or the mere presence of an FIR number should not replace this inquiry.
The relief granted and its limits
Paragraph 63 held the petitioner’s arrest vitiated and directed that he be set at liberty on a bail bond under section 91 BNSS, subject to conditions imposed by the trial court. The High Court required conditions preventing harassment, threats or influence upon the victim’s family, informant and prosecution witnesses.
The Court expressly stated that its finding would not affect the merits of the charge-sheet or pending trial and confined the relief to the petitioner. A procedurally unlawful arrest does not amount to an acquittal, erase the prosecution evidence or terminate the criminal case. A fresh arrest, where legally permissible, would have to comply with the governing safeguards and any judicial conditions.
Paragraph 64 also directed transmission of the judgment to Odisha’s Additional Chief Secretary, Home Department, and Director General of Police so that the governing principles could be communicated to every police station and other arresting authorities in the State.
Practical implications
For arresting agencies, the safest lawful practice is to prepare individualised grounds, communicate them in a language the person actually understands, supply a copy, record the time and manner of service, and preserve proof. A template containing only an FIR number or phrase such as “involved in the above case” is vulnerable because it communicates a conclusion rather than factual grounds.
For defence counsel, the relevant audit should begin with the arrest memo, grounds document, station diary, case diary, forwarding report, first remand application, remand order and section 48 compliance record. The precise chronology may determine whether the alleged defect concerns total non-communication, inadequate grounds, delayed writing or non-compliance with the post-Mihir two-hour rule.
For courts, Bikram Panda requires careful separation of three questions: whether grounds were communicated at all; whether they were meaningful and comprehensible; and whether the uniform written procedure stated in Mihir Rajesh Shah applies to the arrest date. A prospectivity argument concerning the third question should not obscure an established violation of the first two.
Conclusion
Bikram Panda does not erase the prospective language used in Mihir Rajesh Shah. It interprets that language against the constitutional architecture from which the duty arises.
The uniform written procedure and two-hour outer limit were crystallised for all arrests by Mihir Rajesh Shah. But Article 22(1), section 47 BNSS and the earlier Supreme Court authorities already prohibited detention without meaningful communication of grounds. Where the State cannot show that it conveyed any individualised basis for arrest, the word “henceforth” cannot retrospectively legitimise silence or a meaningless formula.
The larger lesson is institutional. Grounds of arrest are not paperwork generated to defend custody after the event. They are information owed to the person whose liberty is being curtailed, and they must be capable of supporting an immediate and effective legal challenge.
General information disclaimer
This article provides general legal information and does not constitute legal advice. The effect of an arrest-related defect depends on the governing statute, date of arrest, documents supplied, remand record and subsequent judicial orders.
Sources
High Court of Orissa, Bikram Panda alias Bikram Kumar Panda v State of Odisha, BLAPL No. 13860 of 2025, CNR No. ODHC010945452025, judgment dated 31 August 2026, especially paragraphs 44–53 and 57–65; official judgment searchable through the Orissa High Court portal: https://www.orissahighcourt.nic.in/
Supreme Court of India, Mihir Rajesh Shah v State of Maharashtra, Criminal Appeal No. 2195 of 2025, 2025 INSC 1288, judgment dated 6 November 2025, especially paragraphs 39, 66 and 68: https://api.sci.gov.in/supremecourt/2024/56321/56321_2024_9_1502_65444_Judgement_06-Nov-2025.pdf
Supreme Court of India, Vihaan Kumar v State of Haryana, Criminal Appeal No. 621 of 2025, 2025 INSC 162, judgment dated 7 February 2025, especially paragraphs 26–28 and 39.
Supreme Court of India, Prabir Purkayastha v State (NCT of Delhi), Criminal Appeal No. 2378 of 2024, 2024 INSC 414, judgment dated 15 May 2024, especially paragraphs 19–22: https://api.sci.gov.in/supremecourt/2023/42896/42896_2023_3_1503_53250_Judgement_15-May-2024.pdf
Supreme Court of India, Pankaj Bansal v Union of India, Criminal Appeal Nos. 3051–3052 of 2023, 2023 INSC 866, judgment dated 3 October 2023, especially paragraphs 32–39: https://api.sci.gov.in/supremecourt/2023/30275/30275_2023_16_1501_47281_Judgement_03-Oct-2023.pdf
Constitution of India, Articles 21 and 22: https://legislative.gov.in/constitution-of-india/
India Code, Bharatiya Nagarik Suraksha Sanhita, 2023, especially sections 47, 48, 62, 91 and 483: https://www.indiacode.nic.in/handle/123456789/20099
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