Written grounds of arrest mandatory: Rajasthan High Court grants bail in alleged Pak espionage case

Jaipur: The Rajasthan High Court has held that failure to furnish written grounds of arrest to an accused — even in a matter involving allegations of espionage and transmission of strategic information to Pakistani handlers — renders the arrest and subsequent remand illegal, granting bail to a man booked under the Official Secrets Act, 1923 and the Bharatiya Nyaya Sanhita, 2023 for allegedly leaking sensitive military information.

Justice Praveer Bhatnagar observed that the authoritative pronouncement of the three-Judge Bench of the Supreme Court in Mihir Rajesh Shah v. State of Maharashtra leaves no scope for the investigating agency or the Magistrate to dilute or bypass the mandatory requirement of communicating the grounds of arrest in writing, and that strict adherence to the safeguards under Articles 21 and 22 of the Constitution assumes even greater significance in cases involving national security.

The Court observed:

“The present case does not pertain to an ordinary criminal offence, but involves grave allegations relating to transmission of strategic and sensitive information to Pakistani handlers, thereby having serious ramifications upon national security and sovereignty of the nation. Therefore, precisely for this reason, strict adherence to the constitutional and statutory safeguards governing arrest assumes even greater significance, had the investigating agency and the authorities concerned exercised due diligence in ensuring compliance of the mandatory requirement relating to communication of grounds of arrest in writing, the present controversy regarding legality of arrest would not have arisen.”

The petition under Section 483 of the Bharatiya Nagarik Suraksha Sanhita, 2023 had been moved by Jhabra Ram, a 28-year-old resident of Jaisalmer, in connection with FIR No. 01/2026 registered at the Special Police Station, District C.I.D. Security, Jaipur for offences under Sections 3 and 9 of the Official Secrets Act, 1923 and Sections 152 and 238(b) of the BNS, 2023. The prosecution contended that during investigation sufficient material had surfaced indicating that the petitioner was in contact with Pakistani handlers through WhatsApp and other electronic modes and was involved in transmission of sensitive information relating to military establishments.

Counsel for the petitioner, R.B Sharma Ganthola, contended that the mandatory procedural safeguards relating to arrest and communication of grounds of arrest were not duly complied with by the investigating agency, and that the right of an accused to be informed of the grounds of arrest is not an empty formality but a substantive constitutional protection intended to ensure fairness and transparency. Reliance was placed on the Supreme Court’s decisions in Pankaj Bansal v. Union of India, Prabir Purkayastha v. State (NCT of Delhi), Vihaan Kumar v. State of Haryana and the three-Judge Bench ruling in Mihir Rajesh Shah v. State of Maharashtra.

Per contra, the Public Prosecutor opposed the bail application, submitting that the petitioner had been made aware of the grounds of arrest through the arrest memo, that the objection had never been raised at the earliest available stage either at the remand proceedings or before the concerned Court immediately after arrest, and that no prejudice had been caused to the petitioner. Reliance was placed on Kasireddy Upender Reddy v. State of Andhra Pradesh and State of Karnataka v. Sri Darshan.

Examining the issue first, the Court traced the constitutional and statutory framework — Articles 21 and 22(1) of the Constitution read with Section 47 of the BNSS, 2023 (corresponding to the erstwhile Section 50 of the Code of Criminal Procedure, 1973) — and worked through the line of authority from Pankaj Bansal and Prabir Purkayastha to Vihaan Kumar, before turning to the three-Judge Bench ruling in Mihir Rajesh Shah. That ruling, the Court noted, requires that the grounds of arrest be communicated to the arrestee in writing in a language he or she understands, with the written copy supplied within a reasonable time and in any case at least two hours prior to production before the Magistrate for remand. Non-compliance, the Apex Court had held, renders the arrest and subsequent remand illegal and entitles the arrestee to be set at liberty.

On the facts, the Court found that while the case diary reflected that the petitioner had been orally informed of the factum and basis of his arrest as contemplated under Section 47 of the BNSS, “the record does not indicate that the said grounds of arrest were ever furnished to the accused-petitioner in writing”, which stood contrary to the settled judicial dictum laid down in Mihir Rajesh Shah, thereby rendering the arrest legally unsustainable. The bench further observed that the illegality “persisted through the Magistrate who granted custody to the petitioner without ensuring proper procedural compliance”, noting that the duty cast by Articles 21 and 22 falls not only on the investigating officer but also on the prosecuting agency and the remanding Magistrate.

Distinguishing the State’s reliance on Sri Darshan, the Court pointed to the Supreme Court’s subsequent decision in Ahmed Mansoor v. State, in which Sri Darshan was distinguished on facts and the importance of strict adherence to constitutional safeguards relating to arrest was reiterated.

Holding that the continued detention of the accused-petitioner could not be sustained in law, the bench enlarged him on bail on a personal bond of Rs. 50,000 with two sureties of Rs. 25,000 each, subject to monthly attendance before the Special Police Station, District C.I.D. Security, surrender of his passport, and a bar on leaving India without prior permission of the Court. Liberty was, however, granted to the State to take recourse to law and re-arrest the petitioner if a case were made out.

In parting remarks, the Court directed that a copy of the order be forwarded to the Director General of Police, Rajasthan and the Director of Prosecution, Rajasthan for initiating appropriate action against the concerned Investigating Officer and the Public Prosecutor for the lapses observed, and that a copy be placed before the Chief Justice for appropriate action in relation to the proceedings conducted by the Magistrate, ACJM No. 5, Jaipur Metropolitan-I. The Registrar (Judicial) was further directed to circulate the order to all subordinate courts in the State for due compliance and necessary sensitization regarding the mandatory procedural safeguards governing arrest and remand proceedings.

Title: Jhabra Ram v. State of Rajasthan

Case No.: S.B. Criminal Miscellaneous Bail Application No. 4778/2026

Citation: [2026:RJ-JP:20725]

Counsel for petitioner: Mr. R.B Sharma Ganthola

Counsel for respondent: Mr. Shree Ram Dhakar, Public Prosecutor