Allahabad HC holds Article 22 arrest-ground challenge cannot be raised after the Section 167 remand stage ends, despite an alleged illegal arrest

The petitioner challenged his formal arrest on 29 August 2025 and remand orders dated 29 August and 11 September 2025 in a case arising from FIR Case Crime No. 4 of 2025.

He had been in custody in an earlier FIR when ATS obtained his production under a warrant and formally arrested him in the present case.

He alleged that the grounds of arrest were not communicated to him or his family, violating Article 22(1) of the Constitution, and also challenged compliance with Section 48 BNSS.

The State argued that this was only a change of custody and that, in any event, the subsequent filing of the charge sheet and taking of cognizance precluded a challenge to the earlier remand.

By the time the petition was decided, the charge sheet had been filed, cognizance taken, and charges framed.

1. Whether formal arrest and remand in a second case, while the accused is already in custody in an earlier case, amount to a fresh arrest or merely a change of custody.

2. Whether non-compliance with Article 22(1) in that situation renders the arrest and remand illegal, and whether that challenge remains available after the investigation and remand stage under Section 167 CrPC have concluded.

3. Whether the Division Bench decision in Neeraj was binding or applicable to the petitioner’s challenge under Section 528 BNSS.

Article 22(1) of the Constitution requires an arrested person to be informed of the grounds of arrest; the Court read that safeguard with the relevant BNSS provisions, including Section 48.

Relying on Dhanraj Aswani v. Amar S. Mulchandani, the Court held that a person already in custody in one case may be formally arrested in another, and that this constitutes a fresh arrest.

It applied Vihaan Kumar v. State of Haryana for the principles that non-compliance with Article 22(1) vitiates the arrest and consequential remand, and that filing a charge sheet does not itself cure the breach.

The Court distinguished the initial investigation-stage remand under Section 167 CrPC from later proceedings, including supply of documents under Section 207 and remand under Sections 209 and 309 CrPC; it held that an Article 22(1) challenge to the initial arrest/remand could not be raised after the Section 167 stage had ended.

It treated Neeraj as concerning habeas corpus maintainability, rather than the distinct Section 528 BNSS proceeding before it.

The Court first rejected the State’s characterisation of the petitioner’s formal arrest as merely a change of custody: under Dhanraj Aswani, the arrest in the second case was a fresh arrest, attracting Article 22(1) safeguards.

It accepted that an established breach of those safeguards could vitiate the arrest and remand.

However, it held that the principle in Vihaan Kumar applied to the initial arrest and remand at the Section 167 CrPC stage.

Once the charge sheet had been filed, the relevant documents supplied, and the case had proceeded to later remand and trial stages, the petitioner could no longer challenge the initial arrest/remand on that basis.

The Court therefore found Neeraj distinguishable as to the form of proceeding, but concluded that the later procedural stage independently defeated the petitioner’s challenge.

It also held that non-compliance with Article 22(1) may vitiate the arrest and remand, but that the petitioner could not pursue this challenge after the Section 167 CrPC stage had concluded and the case had progressed to trial.

The petition was dismissed as devoid of merit.