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Can an Illegal Arrest Be Cured by Subsequent Judicial Orders?
A Critical Analysis of the Allahabad High Court’s Decision in
Neeraj v. State of U.P.
Editor: – Kanisk Kumar Singh
Abstract
The Constitution of India gives us the right to liberty and this is a very important right. The Constitution of India has Articles 21 and 22 that make sure people are not arrested and put in jail without the police following the legal procedure. So what happens when the police do not follow the rules when they arrest someone. Can a Magistrate or a court fix this mistake on. The Allahabad High Court looked at this question in the case of Neeraj and Another v. State of U.P. And Another, 2026 LiveLaw (AB) 305. This case is very significant. The Allahabad High Court made a decision when it said that some recent judgments by the Supreme Court do not have to be followed. The Supreme Court judgments were made recently. This decision by the Allahabad High Court is controversial. The Constitution of India and the law say things about arrests that are not legal. The Supreme Court has made judgments about this in the past. Also recently. This article will try to understand what happened in the case. It will look at what the law says about arrests that’re not legal. It will look at what the Supreme Court judgments say. It will also try to figure out if the Allahabad High Court made the decision or the wrong decision in the case of Neeraj and Another v. State of U.P. And Another, 2026 LiveLaw (AB) 305. The case of Neeraj and Another v. State of U.P. And Another 2026 LiveLaw (AB) 305 is important because the Allahabad High Court made a decision. The decision is the right to personal liberty. The right, to liberty is given to us by the Constitution of India.
I. Introduction
Imagine you are taken away by the police and they do not tell you why. The police take you to a police station. Lock you up. Then they take you to see a Magistrate who sends you to jail. A few months go by. The police file a chargesheet. The court looks at the chargesheet. Your bail is rejected. Two years go by. Can you still go to the High Court. Say. My arrest was not right from the start please let me go? This is what happened in the Neeraj case.
The Constitution of India says in Article 21 that the police cannot take away your freedom unless they follow the rules. Article 22 says that when you are arrested the police have to tell you why and you have the right to meet a lawyer. The police also have to take you to see a Magistrate within 24 hours. These are important rights. So when the police do not follow these rules the question is. Can a court make everything okay later?
The Allahabad High Court looked at the Neeraj case. Said something very interesting. They said that if a court has already looked at the chargesheet you cannot challenge your arrest through a habeas corpus petition. The court also said that some recent judgments from the Supreme Court do not apply in this case. This has started a debate among lawyers and that is why we need to look at this case very carefully.
The Neeraj case is important because it is about the Constitution of India and the rights of people like you and me. The Constitution of India is like a book of rules that the police and the courts have to follow. The Neeraj case is, about what happens when the police do not follow these rules.
The police arrested Neeraj. Did not tell him why
The police did not take Neeraj to see a Magistrate within 24 hours
The court looked at the chargesheet. Rejected Neeraj’s bail
The Allahabad High Court said that even though the police did not follow the rules Neeraj cannot challenge his arrest now. This is an important decision and it will affect many people. The Neeraj case is a reminder that the police and the courts have to follow the rules and protect our rights.
II. Constitutional and Statutory Framework
A. Article 21 — The Foundation of Personal Liberty
Article 21 of the Constitution is really important for people in India. The Supreme Court said something important in the case of Maneka Gandhi v. Union of India. They said that the rules the government follows when it comes to Article 21 have to be fair and just.
The government cannot just follow any rules it wants. Those rules have to be good and fair. So even if the police do what they are supposed to do when they arrest someone if they do it in a way that’s not fair then that is still not right.
Article 21 also says that people have the right to live with dignity. If the police arrest someone and put them in jail without a reason that is not right. It is a violation of Article 21 because it takes away the person’s dignity.
The police have to tell people why they are being arrested and they have to treat them. If they do not do this then they are violating Article 21 and the right to live with dignity.
B. Article 22 — Specific Safeguards Against Arrest
Article 22(1) gives two rights to everyone who is arrested. First the right to know why you are being arrested. This should be told to you as soon as possible. Second you have the right to talk to a lawyer of your choice. These rights are available to you from the moment you are arrested. If the police do not tell you why you are being arrested you will not be able to decide if you want to challenge the arrest or not. You also will not be able to give instructions to your lawyer.
The Supreme Court in Vihaan Kumar v. State of Haryana, 2025 INSC 162 said that the word “communicate” in Article 22(1) is very strong. Communicating the reasons, for arrest means actually telling the person in a way they can understand. It does not mean writing something in a police diary that the person never gets to see. The police must tell the arrested person in a language they understand.
C. Statutory Safeguards Under the BNSS, 2023
The Bharatiya Nagarik Suraksha Sanhita, 2023 or BNSS gives protections. It replaced the Code of Criminal Procedure, 1973. The BNSS has rules to protect people who are arrested. For example Section 47 says the police must tell the person being arrested what they are accused of.
There are also rules about keeping people in custody. Section 57 says a person cannot be kept in custody for, than 24 hours without seeing a Magistrate. A Magistrate can decide if someone should be kept in police or judicial custody while the police investigate. This is according to Section 167.
All these rules together make sure that arrests and detentions are done fairly. If the police skip any of these steps it can make the whole process unfair. The BNSS and these sections make sure that people are treated fairly when they are arrested. The police must follow these rules to ensure that the arrest and detention process is fair and not done arbitrarily.
III. The Case: Neeraj and Another v. State of U.P. and Another
A. Facts of the Case
The man, Neeraj was accused of killing his wife and one-year-old daughter for dowry. He was. A chargesheet was filed against him. His bail application was rejected by the trial court. Two years after his arrest he filed a petition before the Allahabad High Court saying his arrest was illegal. He said the police did not tell him why he was being arrested when they took him in. He said this was not done as it should have been under the law. He used some Supreme Court cases to make his point.
He pointed to the cases of Vihaan Kumar, Pankaj Bansal and Prabir Purkayastha. He said these cases showed that the mistake in his arrest could not be fixed. He said he should be released because of this.
He made his petition under Article 226 of the Constitution. He said the police did not follow the rules when they arrested him. Specifically they did not tell him the reasons, for his arrest. He said this was required under Article 22(1) and Section 47 of the BNSS.
B. The High Court’s Decision
A Division Bench of Justice Siddharth and Justice Vinai Kumar Dwivedi dismissed the habeas corpus petition.
The court said that once the investigation is over chargesheet is filed and court has taken cognizance of the case the initial wrong in the remand order cannot be used as a reason for habeas corpus. The accused should apply for bail before the right court instead saying that their rights under Articles 21 and 22 were violated.
The Allahabad High Court looked at two groups of Supreme Court judgments on this issue. The court thought these judgments could not be reconciled. It then said that some recent judgments, including Vihaan Kumar, Prabir Purkayastha and Pankaj Bansal are not examples to follow.
The reason was that they did not consider Supreme Court decisions on the same issue. The court also expressed worry about a mess in the system. It said that because of Supreme Court judgments people accused of crimes were filing habeas corpus petitions easily.
They did this after the Supreme Court itself had rejected their bail. The accused did this just to say that their arrest was wrong. The court said this situation was, like opening a box of troubles and needed to be fixed.
IV. The Two Sets of Supreme Court Judgments: A Conflict in Law
A. The Older Set — Habeas Corpus Examines Current Detention
The old Supreme Court judgments say that when someone files a habeas corpus petition the court checks if the current detention is legal not if the original arrest was legal.
In the case of Kanu Sanyal v. District Magistrate, Darjeeling in 1974 the Supreme Court said that the legality of detention in a habeas corpus petition is checked based on the order that exists on the date the rule is returned. This means if the person is in custody under a court order by the time the petition is heard the original illegality does not matter.
The Supreme Court has made rulings in other cases. In State of Maharashtra v. Tasneem Rizwan Siddiquee, in 2018 it said that if a person is in custody under a remand order a habeas corpus petition is not valid.
In Saurabh Kumar v. Jailor, Koneila Jail in 2014 the court said that if a Magistrate has sent someone to jail a habeas corpus petition, against the detention is not valid.
These judgments take an approach and say that at some point the earlier illegality gets overtaken by the lawful judicial orders that come after it. The Supreme Court looks at the situation and not the original arrest. The detention is checked based on the court order. The original illegality does not matter if there is a court order later.
B. The Recent Set — Illegal Arrest Is Incurable
The Supreme Court has been making some changes lately. In the case of Vihaan Kumar v. State of Haryana, 2025 INSC 162 the judges, Justices Abhay S. Oka and N. Kotiswar Singh said that the police have to tell people why they are being arrested away. This is what the law says in Article 22(1). If the police do not do this then the arrest is not valid. Nothing can make it valid again not even if the police file charges or put the person in jail for a while. The court also said that if an arrest is found to be illegal the person has to be let out of jail away. They cannot be kept in jail for even one more second.
In another case Pankaj Bansal v. Union of India, (2024) 7 SCC 576 the Supreme Court talked about arrests that happen because of the Prevention of Money Laundering Act (PMLA). The court said that when someone is arrested they have to be given a written statement that says why they are being arrested. If this does not happen then the arrest is not valid. The person should be let out of jail on bail.
In the case of Prabir Purkayastha v. State (NCT of Delhi), 2024 SCC OnLine SC 1193 the court said that if the police do not follow the rules when they make an arrest then the whole time the person is in jail is not valid. This case was very important because it was about the arrest of the NewsClick editor. The court said that the person had to be let out of jail away.
The main thing that we can see from all of these cases is that the Supreme Court thinks that the rights people have when they are arrested are very important. These rights are not formalities they are real protections that keep people safe. If these rights are not respected then the whole arrest is not valid. It cannot be fixed later. The Supreme Court seems to be taking a stance on protecting peoples rights in recent years and this is a good thing, for the Supreme Court and the people. The Supreme Court is making it clear that the rights of people when they are arrested are very important and the Supreme Court is going to make sure that these rights are protected.
V. Critical Analysis
A. Was the Allahabad High Court Right?
Looking at the Neeraj judgment carefully there are arguments for and against the High Court’s decision. Let us consider both sides of the Neeraj judgment.
On one hand the Allahabad High Court makes a point. The petitioner in the Neeraj judgment waited two years let his bail be rejected and then went to the High Court to say his arrest was illegal. At that stage no court can simply release him because of a defect at the time of arrest especially when the charges are as serious as dowry death and murder in the Neeraj judgment. The accused in the Neeraj judgment can apply for bail on the ground of violation of Articles 21 and 22. The court can consider those grounds in the bail application for the Neeraj judgment. The court’s concern about the abuse of habeas corpus jurisdiction is also understandable in the context of the Neeraj judgment. If every accused person can come to the High Court at any stage of the trial and challenge their arrest it will become impossible to manage the Neeraj judgment and other similar cases.
On the hand there are serious problems with the way the Allahabad High Court dealt with the issue in the Neeraj judgment. The biggest problem is the court’s declaration that the recent Supreme Court judgments are not binding. The law declared by the Supreme Court is binding on all courts within the territory of India under Article 141 of the Constitution. A Division Bench of a High Court cannot say that a judgment of the Supreme Court is not binding even if it believes that the Supreme Court failed to consider judgments in the Neeraj judgment. The proper course in such a situation is to refer the matter to a bench or to point out the conflict and await a resolution by the Supreme Court itself in the Neeraj judgment. By calling the Supreme Court judgments non-binding the Allahabad High Court has essentially done what only a Constitutional Bench of the Supreme Court can do in the Neeraj judgment.
Furthermore the principle that an illegal arrest is incurable has a basis in the Constitution. Article 22(1) gives every arrested person the right to know why they are being arrested in the Neeraj judgment. This is not a formality in the Neeraj judgment. If you do not know why you are arrested you cannot challenge it you cannot get legal help and you cannot exercise your right to bail in the Neeraj judgment. The Supreme Court in D.K. Basu v. State of West Bengal laid down guidelines for arrest procedures. Said that failure to follow these amounts to a violation of fundamental rights in the Neeraj judgment. In Arnesh Kumar v. State of Bihar the court emphasized that arrest is an action and cannot be taken casually in the Neeraj judgment. The Supreme Court’s judgments on arrest have been moving in the direction of protection for the accused in the Neeraj judgment. The recent judgments in Vihaan Kumar, Mihir Rajesh Shah and Kasireddy Upender Reddy are a continuation of this trend, in the Neeraj judgment.
B. The Problem of Stare Decisis
The idea of decisis is that courts should follow what they decided before to keep the law consistent. The Allahabad High Court said that the latest Supreme Court judgments do not follow this idea because they do not look at or talk about the Supreme Court judgments on the same issue. This is a point to make in a legal argument but it does not mean a High Court can say Supreme Court judgments are not important.
When the Supreme Court has opinions the Supreme Court itself has said what to do. If the High Court has to choose it should follow the judgment if it has the same number of judges or it should follow the judgment with more judges if they have different numbers of judges. The High Court cannot just pick the judgments it likes. Say the others are not important. This is not what the High Court is supposed to do.
What the Allahabad High Court should have done is say it is worried about the opinions use the judgment that is best for the person accused in that case and ask the Supreme Court to figure out the problem, with a bigger group of judges. That would have been the thing to do. By saying the latest Supreme Court judgments are not important the High Court has made things more confusing instead of making them clearer. The High Court should have followed the Supreme Court judgments. Asked for help instead of trying to fix the problem on its own. The Supreme Court judgments are important. The High Court should respect them. The High Court should have used the Supreme Court judgments to make a decision. Then asked the Supreme Court to look at the problem again.
C. The Right to Speedy Trial vs. The Right Against Illegal Detention
The tension between two fundamental rights arises in this case. On one side we have the right of the accused person to not be kept in custody illegally which comes from Articles 21 and 22. On the side we have the right to a trial that happens quickly which is important for the victims the public and everyone else involved. This right was talked about in the case of Hussainara Khatoon v. State of Bihar back in 1979.
If we let an accused person challenge their arrest late like during the trial after they have already been denied bail many times it can slow down the trial and cause problems for the victims who are waiting for justice.
This is a problem and we cannot just ignore it. We should not stop people from using the remedies that are available to them under the constitution. Instead the courts should be very careful. Only help the accused person if they can show that they were really hurt by the illegal arrest.
If the accused person is just making a technical complaint and it is too late and it does not really affect the trial then the court has the power to dismiss the complaint because it was made too late and because there are other ways to solve the problem. This way we can find a balance. Not have a rule that always works the same way.
VI. Conclusion
The decision of the Allahabad High Court in Neeraj and Another v. State of U.P. is important because it brings up the questions that the Indian legal system has been dealing with for a long time. Can a person who was arrested illegally have that arrest made right by a judge on? Should someone who was arrested illegally be able to say that was wrong at any point during the trial? How do we make sure people are free and that the criminal justice system works well?
The Allahabad High Court said that once a judge starts looking at a case the person who was arrested illegally cannot use habeas corpus to challenge that arrest. This makes sense in a way. If people wait long to file habeas corpus petitions it can cause a lot of problems. However the way the court came to this decision by saying that recent Supreme Court decisions do not have to be followed is not correct according to the law and is not allowed by the constitution under Article 141.
The decision which the Supreme Court has been saying consistently in recent years is that people have the right to know why they were arrested as stated in Article 22(1) of the constitution. This is a right that is very important not just a technical detail. If this right is not given to someone when they are arrested it is an issue. Even though courts may limit what can be done to fix the problem depending on what stage the case’s at they cannot say that the problem is fixed or forgotten.
India needs a decision from a larger group of Supreme Court judges that settles the disagreement between different court decisions explains exactly when a late habeas corpus petition can be filed and says what can be done to fix the problem at different stages. Until this happens the law on this topic will remain unclear. Courts all, over the country will keep dealing with the same confusing situation that the Allahabad High Court itself pointed out. The Neeraj decision is not the end of this discussion. It is maybe the start of the end pushing the Supreme Court to settle a very disputed question of constitutional law.
References
I. Constitutional Provisions
Constitution of India, 1950, art. 21 (Right to Life and Personal Liberty)
Constitution of India, 1950, art. 22 (Protection Against Arrest and Detention)
Constitution of India, 1950, art. 141 (Law Declared by Supreme Court to be Binding)
Constitution of India, 1950, art. 226 (Power of High Courts to Issue Writs)
II. Statutes
Bharatiya Nagarik Suraksha Sanhita, 2023, ss. 47, 57, 167 (India)
III. Cases
Neeraj and Another v. State of U.P. and Another, 2026 LiveLaw (AB) 305 (Allahabad High Court)
Vihaan Kumar v. State of Haryana and Anr., 2025 INSC 162, (2025) SCC OnLine SC 269 (Supreme Court of India), https://indiankanoon.org/doc/74708490/
Pankaj Bansal v. Union of India, (2024) 7 SCC 576 (Supreme Court of India)
Prabir Purkayastha v. State (NCT of Delhi), 2024 SCC OnLine SC 1193 (Supreme Court of India)
Mihir Rajesh Shah v. State, 2025 SCC OnLine SC (Supreme Court of India)
Kasireddy Upender Reddy v. State, 2025 SCC OnLine SC (Supreme Court of India)
Maneka Gandhi v. Union of India, (1978) 1 SCC 248 (Supreme Court of India)
Kanu Sanyal v. District Magistrate, Darjeeling, (1974) 4 SCC 141 (Supreme Court of India)
D.K. Basu v. State of West Bengal, (1997) 1 SCC 416 (Supreme Court of India)
Arnesh Kumar v. State of Bihar, (2014) 8 SCC 273 (Supreme Court of India)
Hussainara Khatoon v. State of Bihar, (1979) 3 SCC 1 (Supreme Court of India)
Saurabh Kumar v. Jailor, Koneila Jail, (2014) 13 SCC 436 (Supreme Court of India)
State of Maharashtra v. Tasneem Rizwan Siddiquee, (2018) 9 SCC 745 (Supreme Court of India)
IV. Secondary Sources
Bar & Bench, ‘Allahabad HC Says Supreme Court Judgments on Illegal Custody Have Opened Pandora’s Box; Declares Them as Non-Binding’ (June 8, 2026), https://www.barandbench.com/news/remand-and-habeas-corpus-allahabad-hc-says-supreme-court-judgments-have-opened-pandoras-box
Sparsh Upadhyay, ‘Why Allahabad HC Said Supreme Court Rulings in Vihaan Kumar and Others Opened Floodgates, Led to Chaotic Situation,’ LiveLaw (June 6, 2026), https://www.livelaw.in/high-court/allahabad-high-court/allahabad-hc-supreme-court-vihaan-kumar-mihir-rajesh-shah-floodgates-chaotic-situation-not-binding-537071
Legal Service India, ‘Supreme Court Strikes Down Unlawful Arrest in Vihaan Kumar v. State of Haryana,’ https://www.legalserviceindia.com/legal/article-20504.html
Drishti Judiciary, ‘Vihaan Kumar v. State of Haryana and Anr. (2025),’ https://www.drishtijudiciary.com/constitution-of-india/vihaan-kumar-v-state-of-haryana-&-anr-2025
The Legal Quorum, ‘Vihaan Kumar v. State of Haryana, 2025: Case Summary,’ https://thelegalquorum.com/vihaan-kumar-v-state-of-haryana-2025-case-summary/