Failure to communicate grounds of arrest vitiated former MLA Bikram Panda’s detention, Odisha High Court orders release on bail

The petitioner, a former Member of the Odisha Legislative Assembly, sought regular bail under Section 483 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (“BNSS”) in Baidyanathpur P.S. Case No. 518 of 2025, relating to the murder of a sitting member of the Odisha State Bar Council.

The prosecution alleged that two motorcycle-borne assailants shot the deceased on 6 October 2025 and that the petitioner was involved in a larger conspiracy to procure contract killers through intermediaries and co-accused persons.

The petitioner was arrested on 22 October 2025 and remained in judicial custody thereafter.

The arrest memo contained, in the grounds-of-arrest column, only the expression “In the strength of above noted case.”

The Magistrate rejected his application challenging the legality of the arrest, and the Sessions Court subsequently rejected his bail application.

A charge-sheet and supplementary charge-sheet were filed, alleging the petitioner’s involvement as a conspirator on the basis of circumstantial evidence, co-accused statements, call records, alleged motive and other digital materials.

Whether the petitioner’s arrest was vitiated by failure to communicate the grounds of arrest effectively and in writing, as required by Article 22(1) of the Constitution and Sections 47, 48 and 62 of the BNSS?

Whether oral communication of the grounds of arrest, an alleged communication to the petitioner’s father, or the petitioner’s refusal to sign the arrest memo could establish compliance with the constitutional and statutory requirements?

Whether the petitioner was entitled to release on bail upon establishment of the violation of Article 22(1), notwithstanding the seriousness of the alleged offences and the filing of the charge-sheet?

The Court applied Article 21 of the Constitution, protecting personal liberty, and Article 22(1), which prohibits detention without informing the arrested person, as soon as may be, of the grounds of arrest.

Section 47 of the BNSS requires the arresting officer to communicate the full particulars of the offence or other grounds of arrest; Section 48 requires information regarding the arrest and place of detention to be given to a relative, friend or nominated person; and Section 62 mandates that every arrest be made strictly in accordance with the BNSS or other applicable law.

The Odisha Information of Arrested Persons Rules, 2025, framed under Section 48(3) BNSS, require arrest-related information and the grounds of arrest to be recorded and communicated in the prescribed manner.

Relying principally on Vihaan Kumar v. State of Haryana, the Court held that communication of the grounds of arrest is mandatory, that the arresting agency bears the burden of proving compliance, that non-compliance vitiates the arrest and remand, and that the filing of a charge-sheet does not cure the constitutional violation.

Relying on Mihir Rajesh Shah v. State of Maharashtra, the Court further held that the grounds of arrest must ordinarily be furnished in writing, in a language understood by the arrestee, and, where not supplied immediately, at least two hours before production for remand; breach renders the arrest and subsequent remand illegal.

The Court also referred to Harikisan, Lallubhai Jogibhai Patel, Pankaj Bansal, Prabir Purkayastha and Ashish Kakkar on effective and meaningful communication of grounds of arrest.

The Court found that the prosecution failed to prove that written grounds of arrest were ever supplied to the petitioner.

The arrest memo did not set out the factual basis of the arrest and merely stated, “In the strength of above noted case,” which did not communicate the basic facts or nature of the allegations against him.

The Court held that the prosecution could not rely on the petitioner’s alleged refusal to sign the memo, oral explanation in Odia, or alleged communication to his father, because the burden remained on the arresting agency to establish effective compliance with Article 22(1).

The prosecution also produced no contemporaneous document, apart from insufficient case-diary assertions, demonstrating that the grounds had been communicated.

The Court rejected the argument that the requirement of written communication applied only prospectively from Mihir Rajesh Shah, holding that the requirement flowed from the pre-existing constitutional guarantee under Article 22(1) and was not created for the first time by that judgment.

Although the allegations against the petitioner were serious, the Court noted that his alleged role was that of a conspirator and that the case against him was substantially circumstantial, involving co-accused statements, motive and communication records.

The Court declined to assess the ultimate evidentiary value of those materials at the bail stage, leaving the conspiracy allegations to be tested at trial.

Since the constitutional violation vitiated the arrest and remand, the petitioner’s release could not be denied merely because the offences were serious or the charge-sheet had been filed.

Consequently, the arrest and consequential remand were held to be vitiated, and the petitioner was directed to be released forthwith.

The Court clarified that the finding invalidating the arrest would not affect the merits of the charge-sheet, investigation or pending trial and was confined to the petitioner’s case.

Release was made subject to furnishing a bail bond under Section 91 BNSS and such conditions as the trial court considered appropriate, including a prohibition against threatening, harassing, terrorising or influencing the informant, the victim’s family or prosecution witnesses.

Breach of the conditions could result in re-arrest in accordance with law.

The Registry was also directed to circulate the judgment to the Odisha Home Department and the Director General of Police for strict implementation of the arrest-related constitutional and statutory safeguards.