Isabella Mariam

The High Court of Allahabad at Lucknow, Division Bench of Justice Abdul Moin and Justice Babita Rani has allowed a writ of habeas corpus filed by an accused arrested in connection with allegations of sexual offences under the penal law and the POCSO framework and ordered his release. The Court held that the arrest was unlawful because the arrest memo did not record the grounds for arrest, while the police produced a separate sheet said to contain those grounds that was neither referred to in the arrest memo nor attested by any witness. Referring to the requirement that an arrest memorandum be witness-attested, the Bench found that an unverified, standalone document could not cure the defect. It accordingly set aside the judicial remand and directed that the detainee be set at liberty unless required in any other case.

The habeas corpus petition was filed challenging the arrest and detention of the petitioner pursuant to a First Information Report dated 21.01.2026 registered at Police Station Kandhai, District Pratapgarh, alleging offences under Sections 137(2), 87, 64(1), 351(3) of the Bharatiya Nyay Sanhita, 2023 and Sections 3 and 4 of the POCSO Act.

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The prosecution alleged that the petitioner had established physical relations with the complainant’s daughter and later threatened to circulate a video. The petitioner was called to the police station on 28.01.2026, detained, and made to sign an arrest memo. He was produced before the Special Judge, POCSO Court, Pratapgarh on 29.01.2026 and remanded to judicial custody for fourteen days.

The petitioner asserted that the arrest memo did not disclose written grounds or reasons for arrest. The State contended that grounds of arrest had been supplied separately, that statements of the victim were recorded, and that the remand cured any alleged defect in the arrest.

The Court observed that “any person arrested for allegation of commission of offences … has a fundamental and a statutory right to be informed about the grounds of arrest in writing and a copy of such written grounds of arrest have to be furnished to the arrested person as a matter of course and without exception at the earliest.”

The Court recorded: "As per Section 36 of the BNSS, 2023, under which the arrest memo is to be issued, it is categorically provided that the memorandum of arrest would be attested by atleast one witness who is the member of a family of a person arrested or a respectable member of the locality where the arrest is made duly countersigned by the person arrested".

It further observed that “The right to be informed about the grounds of arrest flows from Article 22(1) of the Constitution of India and any infringement of this fundamental right would vitiate the process of arrest and remand.”

The Court recorded that “if the grounds of arrest are not furnished to the arrestee in writing, this non-compliance will result in breach of the constitutional and statutory safeguards hence rendering the arrest and remand illegal and the person will be entitled to be set at liberty.”

On examining the arrest memo, the Court observed that "The said separate grounds of arrest have been perused by the Court but no confidence or trust can be reposed on the said grounds of arrest which are alleged to have been supplied separately to the petitioner. The reasons are not far to seek. Apart from the fact that the said reasons for arrest are separate provided on separate paper and do not form part of the arrest memo, the other aspect of the matter is that neither column 12 nor column 13 of the arrest memo dated 28.01.2026 nor anywhere in the arrest memo has it been indicated that the grounds of arrest are being given separately".

The Court further observed that “it is clearly apparent that the said grounds/reasons of arrest have been prepared subsequently and do not conform to the mandatory provisions of Section 36 of the B.N.S.S., 2023.”

Relying on precedent, Mihir Rajesh Shah v. State of Maharashtra, the Court observed that “once the arrest itself is declared illegal even if the remand order has been passed, the same would also be rendered bad.”

Referring to the scope of habeas corpus, the Court recorded that “If the remand is absolutely illegal or the remand is passed in an absolutely mechanical manner, a habeas corpus petition would indeed lie.”

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The Court directed that “the writ petition is allowed. A writ in the nature of habeas corpus is issued declaring the arrest of the petitioner as illegal. The remand order dated 29.01.2026 being consequential to the illegal arrest, is also set aside. The petitioner be set free provided he is not wanted in any other case. It would be open for the respondents to proceed in accordance with law.”

Advocates Representing the Parties

For the Petitioners: Skand Bajpai, Abhyudaya Mishra
For the Respondents: Shri Shiv Nath Tilahari, Shri Anurag Verma, Learned Additional Government Advocates

Case Title: Shivam Chaurasiya Thru. His Brother Mr. Manas Chaurasiya v. State of U.P. Thru. Prin. Secy. Deptt. of Home Affairs Lko. and others

Neutral Citation: 2026: AHC-LKO:10501-DB

Case Number: Habeas Corpus Writ Petition No. 47 of 2026

Bench: Justice Abdul Moin, Justice Babita Rani