Second Arrest of an Accused Already in Custody is a Fresh Arrest

Source: Allahabad High Court 

Why in News?

Justice Manish Mathur of the Allahabad High Court decided Moti Ram Jaat @ Moti Ram Jaat Fauji v. State of U.P. & Another (2026). He held that the formal arrest of an accused who is already under remand in an earlier case is a fresh arrest, so the constitutional safeguards on grounds of arrest apply to it. The petition was still dismissed, because the challenge to the remand was raised after the trial had already begun. 

What was the Background of Moti Ram Jaat v. State of U.P. & Another (2026) Case? 

• The accused was in custody in connection with an earlier FIR. 
• The Anti-Terrorist Squad (ATS) then sought his production through a production warrant in a later case. That case was registered under Sections 148, 152 and 61(2) of the Bharatiya Nyaya Sanhita, 2023 (BNS). 
• He was formally arrested in the later case and remanded to judicial custody. 
• The accused challenged the remand order before the High Court. He argued that:  
  • Neither he nor his family members were given the grounds of his arrest. 
  • This violated his fundamental right under Article 22(1), so the remand order should be set aside. 
• The State opposed the plea. It argued that:  
  • The accused was already in custody when the later remand order was passed. 
  • So this was only a change of custody, not a fresh arrest. 
  • There was therefore no need to comply with Article 22(1) or the relevant BNSS provisions. 

What were the Court's Observations? 

On whether a second arrest is a fresh arrest: 

• The Court relied on the Supreme Court's decision in Dhanraj Aswani v. Amar S. Mulchandani. There, the Supreme Court held that a person in custody in one case can be formally arrested in a different case while remaining in custody in the first. A prisoner transit (PT) warrant can then be obtained to produce him before the jurisdictional Magistrate. 
• Applying this, the High Court held that a second arrest or detention cannot be treated as a continuation of the earlier arrest. It is a fresh arrest. 
• A formal arrest in a later case is therefore not merely a change of custody. 

On the applicability of Article 22(1) and Section 48(2) BNSS: 

• Since the later arrest is a fresh arrest, the safeguards under Article 22(1) of the Constitution, read with Section 48(2) of the BNSS, must be followed. 
• The right of an arrested person to be informed of the grounds of arrest is a fundamental right under Part III of the Constitution. 

On reliance on Vihaan Kumar v. State of Haryana: 

• The grounds of arrest must be communicated in a way that gives the arrested person enough knowledge of the basic facts behind them. They must be given in a language he understands. 
• If the accused disputes compliance, the Investigating Officer or agency has to prove that Article 22(1) was complied with. 
• Non-compliance with Article 22(1) makes the arrest and the remand orders that follow from it invalid. 
• However, it does not invalidate the investigation, the chargesheet or the trial. Filing a chargesheet also does not cure a breach of the constitutional requirement. 
• The grounds of arrest must also be shared with the friends, relatives or persons nominated by the arrested person, so that they can take quick legal steps to secure his release where permissible. 

On the stage at which such a challenge can be raised: 

• The Court held that the Article 22(1) safeguards discussed in Vihaan Kumar operate at the stage of the initial arrest and remand under Section 167 CrPC. 
• Once cognizance has been taken under Section 190 CrPC, and Sections 204 and 207 CrPC have been complied with, those safeguards can no longer be used to challenge the original detention. 
• In this case, the chargesheet had been filed, cognizance had been taken and the trial had begun. The challenge to the initial detention and remand could therefore not be entertained. 

Conclusion 

• Legal position: A formal arrest of an accused already in custody in another case is a fresh arrest. Article 22(1) of the Constitution and Section 48(2) BNSS must be complied with. 
• Outcome: The petition was dismissed, because the challenge to the arrest and remand was raised after the trial had begun.

What is Article 22(1) of the Constitution of India? 

About: 

• Article 22 gives protection against arrest and detention in certain cases. It falls under Part III (Fundamental Rights). 
• Under Article 22(1), no person who is arrested can be detained in custody without being informed, as soon as may be, of the grounds for the arrest. 
• An arrested person also cannot be denied the right to consult, and be defended by, a legal practitioner of his choice. 

What is Section 48 of BNSS? 

About: 

• Section 48 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) places an obligation on the person making an arrest to inform others about the arrest and where the arrested person is being held. 
• This provision was earlier covered under Section 50A of the CrPC (Code of Criminal Procedure, 1973). 
• The duty to inform the arrested person of the grounds of arrest itself is in Section 47 BNSS. This was earlier Section 50 CrPC. 

Key provisions: 

• 48(1): The police officer or other person making the arrest must immediately share information about the arrest and the place of detention with:  
  • a relative, friend or other person disclosed or nominated by the arrested person, and 
  • the designated police officer in the district. 
• 48(2): The police officer must inform the arrested person of this right as soon as he is brought to the police station. 
• 48(3): An entry must be made in a book kept at the police station recording who was informed of the arrest. 
• 48(4): The Magistrate before whom the arrested person is produced must check that these requirements have been complied with.