The Supreme Court in a judgment pronounced on Monday (September 21, 2026) built cast-iron safeguards based on stringent judicial oversight to protect citizens, vulnerable to re-arrest, from police arbitrariness.
The person in question must be able to defend by a counsel of his or her choice. The application must be supported by a senior police officer. A Bench headed by Justice Ujjal Bhuyan said specific sanction from the Judicial Magistrate concerned must precede any attempt by the police to arrest for the second time a person whose earlier arrest was declared illegal for violating rights under Article 22(1) of the Constitution. Article 22(1) guarantees that no arrested person can be detained in custody without being informed of the reasons for their arrest. The application must also contain the reasons for not complying with Article 22(1) the first time.
The judgment said the police must apply before the Magistrate, providing recorded reasons for seeking arrest. These measures, the court said, would ensure that the decision to re-arrest was not made on the sole discretion of the police officer who attempted the first arrest.
The court said disciplinary action could also be initiated against the officer who tried to effect the first arrest in violation of Article 22(1) rights.
The Bench said the rights under the Article would apply across statutes.
