If no serious prejudice shown by the accused procedural defect i.e, mode of service cannot invalidate detention or entitle the accused to regular bail

State of Rajasthan vs. Jhabra Ram – Criminal Appeal No. of 2026 (@ Special Leave Petition (Crl.) No. 13374 of 2026) – 2026 INSC 1169 – October 28, 2026 – Justice M.M. Sundresh and Justice Prasanna B. Varale

https://api.sci.gov.in/supremecourt/2026/42251/42251_2026_4_1501_75646_Judgement_28-Oct-2026.pdf

Appellant and impugned order challenged

The appellant, the State of Rajasthan, challenged the judgment and order dated 18th May, 2026 passed by the High Court of Judicature for Rajasthan, Bench at Jaipur, in S.B. Criminal Miscellaneous Bail Application No. 4778 of 2026, whereby the High Court exercised powers under Section 483 of the Bharatiya Nagarik Suraksha Sanhita, 2023 to enlarge the respondent, Jhabra Ram, on regular bail in connection with FIR No. 01/2026 registered at Special Police Station, District CID (Security), Jaipur, on the sole premise that the grounds of arrest were not furnished in writing [paras 2, 3].

Factual matrix

Credible intelligence gathered in Pokhran, Jaisalmer revealed that the respondent was in contact with Pakistani intelligence handlers via WhatsApp and was transmitting sensitive military photographs, videos, and strategic troop movement details of the Indian Army in exchange for financial consideration. Prior to registering the FIR, statutory notices dated 23rd January, 2026 and 26th January, 2026 under Section 8(1) of the Official Secrets Act, 1923 were served on the respondent to appear for interrogation. Following preliminary inquiry and technical analysis of his mobile phone, FIR No. 01/2026 was registered on 30th January, 2026 at 12:27 PM, and the respondent was formally arrested at 04:00 PM on the same day. At the time of arrest, the specific factual basis of the accusations was communicated to him, set out in detail in a vernacular Arrest Memo read over in the presence of two witnesses and signed by him, and his brother, Shri Bhomaram, was telephonically informed of the arrest at 04:10 PM as recorded in a signed Arrest Information Memo. On 31st January, 2026, the respondent was produced before the Additional Chief Judicial Magistrate No. 5, Jaipur Metropolitan-I, where he was represented by legal counsel who opposed remand on merits without raising any objection regarding non-communication of the grounds of arrest [paras 4, 5, 6, 7, 8, 18].

Other courts verdicts

Following the Magistrate’s remand order dated 31st January, 2026 recording that sufficient grounds existed and the accused was apprised of them, the Additional District and Sessions Judge-3, Jaipur Metropolitan-I rejected the respondent’s regular bail application on 10th March, 2026, holding that the detailed grounds in the signed Arrest Memo constituted complete substantive compliance with Section 47 of the Bharatiya Nagarik Suraksha Sanhita, 2023. Subsequently, the High Court of Judicature for Rajasthan allowed the respondent’s bail application on 18th May, 2026 on the sole premise that written grounds of arrest were not furnished to him prior to or at the time of remand, holding that oral intimation or case diary entries did not satisfy Section 47 of the Bharatiya Nagarik Suraksha Sanhita, 2023 [paras 2, 3, 8, 9].

Core legal arguments of appellant vs respondent

The appellant-State argued that the High Court erred in granting regular bail on a hyper-technical ground while ignoring the grave national security allegations, asserting that Article 22(1) of the Constitution and Section 47 of the Bharatiya Nagarik Suraksha Sanhita, 2023 were meaningfully complied with via prior statutory notices, a detailed signed Arrest Memo, and telephonic intimation to the respondent’s brother, and that under settled precedent, substantial compliance suffices in the absence of demonstrable prejudice, especially since the respondent’s counsel opposed remand on merits without raising any grievance. Conversely, the respondent contended that non-furnishing of written grounds of arrest at least two hours prior to the remand hearing is a mandatory violation of Article 22(1) of the Constitution and Section 47 of the Bharatiya Nagarik Suraksha Sanhita, 2023 that cannot be cured by oral communication, case diary entries, or the gravity of the offence [paras 10, 11, 12, 13].

Ratio Decidendi

The Supreme Court held that while communicating the grounds of arrest under Article 22(1) of the Constitution and Section 47 of the Bharatiya Nagarik Suraksha Sanhita, 2023 is a crucial safeguard, its evaluation is governed by a prejudice-oriented test rather than a formalistic routine requiring separate written communication as an indispensable formality regardless of circumstances. Where the record demonstrates substantial and effective compliance—evidenced by prior statutory notices, detailed accusations recorded in a signed Arrest Memo, telephonic intimation to a relative, and active legal representation at remand opposing custody on merits without raising any objection—no demonstrable prejudice or denial of a fair opportunity to defend is established. Consequently, an alleged procedural defect or hyper-technical objection regarding the mode of communicating grounds of arrest does not ipso facto render custody illegal or serve as a self-executing blanket key to grant regular bail under Section 483 of the Bharatiya Nagarik Suraksha Sanhita, 2023 by bypassing core bail parameters such as the gravity of espionage offences affecting national security [paras 16, 17, 18, 19, 20, 21, 22, 23].

Directions issued

The Supreme Court set aside the High Court’s judgment and order dated 18th May, 2026, cancelled the regular bail granted to the respondent Jhabra Ram, and directed the respondent to surrender before the trial court or investigating agency within two weeks, failing which the appellant-State was directed to take him into custody forthwith in accordance with law, while clarifying that its observations were confined exclusively to the cancellation of bail and would have no bearing on the trial or merits of the case.

Important paragraphs

15. Since this order is confined to consideration of the prayer for cancellation of regular bail, we need not delve into the ultimate correctness of the allegations or the materials collected during investigation.

Arrested person shall be promptly informed of the reasons for his apprehension to enable him to consult his counsel and to seek legal remedies

16. We have no hesitation in observing that the communication of grounds of arrest is a crucial constitutional and statutory safeguard under Article 22(1) of the Constitution and Section 47 of the BNSS, designed to ensure that an arrested person is promptly apprised of the reasons for his apprehension so as to enable him to consult legal counsel, oppose remand, and seek legal remedies effectively. There can be no dispute as to the principles reflected in the judgments of this Court in Pankaj Bansal (supra), Prabir Purkayastha (supra) and Mihir Rajesh Shah (supra), but the facts emerging from the material on record in the present case unequivocally establish that there was substantial and effective compliance with this mandate of law.

17. In an application seeking regular bail under Section 483 of the BNSS, the Court is mandated to consider well-settled statutory and judicial parameters, including: (i) the nature and gravity of the accusation; (ii) the severity of the punishment in the event of conviction; (iii) the danger of the accused absconding or tampering with evidence; and (iv) the overarching impact on public interest and national security. A hyper-technical objection regarding the form or mode of communicating grounds of arrest cannot be treated as a self-executing, blanket key to unlock regular bail, bypassing the core parameters governing bail jurisprudence.

Supreme Court analysing records regarding arrest and subsequent events

18. A careful examination of the material placed on record reveals that the constitutional and statutory requirements were duly satisfied at every stage:

(i) Prior to formal arrest, statutory notices dated 23rd January, 2026 and 26th January, 2026 issued under Section 8(1) of the OSA, 1923 were served upon the respondent, putting him on notice regarding the ongoing investigation into unauthorized transmission of classified military data.

(ii) Immediately upon arrest on 30th January, 2026 at 04:00 PM, the specific factual basis of his apprehension which includes namely, espionage and transmitting photographs, videos, and strategic troop movements in Pokhran and Jaisalmer to foreign handlers was communicated to him. The High Court itself, in paragraph 16 of the impugned order, noted upon a perusal of the case diary that the respondent was informed by the concerned police officer of the factum and basis of his arrest, as contemplated under Section 47 of the BNSS.

(iii) Referring to the Arrest Memo (Annexure P-5, pages 67- 71 of the paper book), a perusal of the memo in the vernacular language shows that it sets out in detail the material against the respondent.

It records that, on the basis of the technical examination report of his mobile phone and his interrogation, he was found to be in contact, through his WhatsApp number, with the WhatsApp numbers of handlers of a Pakistani intelligence agency in exchange for money, and to have transmitted photographs and videos of strategic importance relating to the Indian Army, along with information regarding army movements. This material, which itself constitutes the ground of arrest, was thus informed to the respondent at the time of his arrest.

The Arrest Memo further records the date and time of arrest (30th January, 2026 at 04:00 PM), the activities of the respondent constituting the alleged offences, the identity and designation of the arresting officer, namely, Shri Chaitanya Prakash, Sub-Inspector of Police, and that the respondent was informed of his constitutional rights. It was read over to the respondent in the presence of the witnesses, and a perusal of the document i.e., arrest memo further shows that the respondent has signed it, as also noticed by the learned Sessions Judge.

The personal search conducted at the time of arrest yielded a sum of Rs.430/- in cash and a copy of the notice issued to the respondent under Section 8 of the OSA, 1923. The cash was deposited in the Malkhana, and the same was made part of the case record. The Arrest Memo also records that, when asked which relative should be informed of his arrest, the respondent named his brother, Shri Bhomaram (mobile number 8290945086), and that the information was given to him separately. Accordingly, as recorded in the Arrest Information Memo (Annexure P- 6), the brother was informed of the arrest at 04:10 PM.

Admittedly, the respondent was arrested at the Special Police Station, Jhalana Mahal, Jaipur, whereas he is a resident of Village Nedan, Tehsil Pokaran, District Jaisalmer. In these circumstances, the only practicable way of promptly informing his brother was by telephone/mobile phone and the arresting officer could not have obtained the brother’s signature on a written intimation. The information was therefore passed over mobile phone and stands duly recorded in the Arrest Memo.

(iv) When produced before the learned ACJM No. 5, Jaipur Metropolitan-I on 31st January, 2026, the respondent was represented by legal counsel who opposed police custody remand on merits. Significantly, as acknowledged by the High Court in paragraph 17 of the impugned order, no grievance or objection was raised on behalf of the respondent regarding non-furnishing or non-communication of grounds of arrest.

(v) The learned Magistrate while referring to the record and case diary, recorded a specific finding in the remand order dated 31st January, 2026 that the family was informed, sufficient grounds existed on record, and the accused appeared to have been apprised of the same.

Records revealed  that grounds for his apprehension was effectively represented by counsel during remand

21. Applying these principles to the present facts, the record clearly reflects that the respondent was fully cognizant of the grounds for his apprehension and was effectively represented by counsel at the stage of remand. The substantive mandate of Article 22(1) thus stands meaningfully fulfilled, with no demonstrable prejudice having been suffered.

If no serious prejudice shown by the accused procedural defect i.e, mode of service cannot invalidate detention or entitle the accused to regular bail

22. As affirmed in Kasireddy Upender Reddy (supra) and State of Karnataka (supra), the constitutional framework requires that the arrestee be informed of the grounds of arrest but does not insist upon written communication as an indispensable formality irrespective of the attendant circumstances. In the absence of demonstrable prejudice or denial of an opportunity to defend, an alleged procedural defect in the mode of service cannot ipso facto invalidate detention or entitle an accused to regular bail, more so in cases involving grave allegations of espionage affecting national security and sovereign integrity.

23. The High Court fell into error in treating an alleged procedural irregularity as an automatic ground for grant of regular bail, while completely ignoring the gravity of the offences under Sections 3 and 9 of the OSA, 1923, and Sections 152 and 238(b) of the BNS, as well as the material collected during investigation and placed on record. In the circumstances, we are of the considered opinion that the High Court was not justified in enlarging the Respondent on regular bail. The impugned judgment and order cannot be sustained in law and is liable to be set aside.

25. In the result, the appeal succeeds and is allowed. The Impugned Judgment and Order dated 18th May, 2026 passed by the High Court, in S.B. Criminal Miscellaneous Bail Application No. 4778 of 2026, is hereby set aside.

Resources

• Judgments Cited
  • Mihir Rajesh Shah v. State of Maharashtra, (2026) 1 SCC 500: Relied upon by the High Court and respondent regarding the requirement of furnishing written grounds of arrest, and distinguished on facts by the Supreme Court in light of substantial compliance.
  • Kasireddy Upender Reddy v. State of Andhra Pradesh, (2026) 8 SCC 275: Affirmed that communicating grounds of arrest under Article 22(1) serves a substantive purpose to enable the arrestee to understand the basis of arrest and prepare a defence rather than acting as a formalistic routine.
  • State of Karnataka v. Sri Darshan, (2026) 8 SCC 223: Established the prejudice-oriented test holding that the mere absence of written grounds of arrest does not ipso facto render an arrest illegal or warrant bail unless demonstrable prejudice is shown.
  • Pankaj Bansal v. Union of India, (2024) 7 SCC 576: Cited regarding the mandate of furnishing written grounds of arrest, which the Court noted turned on materially different facts and statutory contexts where prejudice was established.
  • Prabir Purkayastha v. State (NCT of Delhi), (2024) 8 SCC 254: Cited regarding the requirement of communicating written grounds of arrest, distinguished as turning on materially different facts and statutory contexts involving demonstrable prejudice.
  • Vihaan Kumar v. State of Haryana, (2025) 5 SCC 799: Explained that the constitutional object of communicating grounds of arrest as soon as possible is to enable the arrested person to apply for bail, move for habeas corpus, and prepare a timely legal defence.
• Acts and Sections Involved
  • Constitution of India
    • Article 22(1): Protection against arrest and detention in certain cases.
  • Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS)
    • Section 47: Person arrested to be informed of grounds of arrest and of right to bail.
    • Section 483: Special powers of High Court or Court of Session regarding bail.
  • Official Secrets Act, 1923 (OSA)
    • Section 3: Penalties for spying.
    • Section 8 / Section 8(1): Duty of giving information as to commission of offences.
    • Section 9: Attempts, incitements, etc.
  • Bharatiya Nyaya Sanhita, 2023 (BNS)
    • Section 152: Acts endangering sovereignty, unity and integrity of India.
    • Section 238(b): Causing disappearance of evidence of offence, or giving false information to screen offender.
  • Code of Criminal Procedure, 1973 (CrPC)
    • Section 50: Referenced in extracted precedent regarding mandatory communication of grounds of arrest subject to the prejudice-oriented test.
  • Indian Penal Code, 1860 (IPC)
    • Section 302: Referenced in extracted precedent concerning the gravity of the offence of murder overlooked by the High Court.