On 28.10.2026, a Division Bench of the Supreme Court in State of Rajasthan v. Jhabra Ram [2026 INSC 1169] set aside bail granted in May 2026 by a Single Judge Bench of the Rajasthan High Court.
What were the facts? Jhabra Ram was arrested on accusations of spying on his country, and sharing state secrets with the enemy state, Pakistan. He had been in custody for around four months, when the Rajasthan High Court allowed his bail petition on 18.05.2026. The High Court gave bail on a single premise: failure to furnish grounds of arrest in writing to the accused at the time of his apprehension or his remand, citing Supreme Court decisions as casting a binding obligation upon police to do so. It rejected arguments on behalf of the state that there had been sufficient compliance with this mandate as seen from certain other documents, and reasoned that in cases with such serious accusations "strict adherence to the constitutional and statutory safeguards governing arrest assumes even greater significance" (Para 22).
The Supreme Court reversed, finding that there was "substantial and effective compliance" with the legal mandate of communicating grounds of arrest in the facts of the case basis those other documents (the arrest memo and case diary entries) (Para 16). It held that "a hyper-technical objection regarding the form or mode of communicating the grounds of arrest cannot be treated as a self-executing, blanket key to unlock regular bail, bypassing the core parameters governing bail jurisprudence" (Para 17). Citing its decision in Sri Darshan [2025 INSC 979], the Court stated that the correct approach when dealing with alleged "procedural" failures in conveying grounds of arrest was a "prejudice-oriented test" (Para 19). Here, no prejudice was caused to the accused as there had been substantial and effective compliance.
There are two problems with how the Supreme Court has reversed.
First, declaring the prejudice-oriented test is "definitively" the approach when dealing with any dispute about communicating grounds of arrest is more an act of judicial conjuring than reasoning. There is only one decision which lays down a prejudice test in this context of supplying grounds, Sri Darshan, and even that case had very distinct facts. At a later stage (Para 22), the Court also cited Kasireddy in support of this idea, which is plainly incorrect.
If anything, the definitive approach is a strict adherence test, requiring demonstration that grounds of arrest have been communicated. In favour of this we can cite Vihaan Kumar v. State of Haryana & Anr. [2025 INSC 162 (February, 2025)], Kasireddy Upender Reddy v. State of Andhra Pradesh [2025 INSC 768 (May, 2025)], and Mihir Rajesh Shah v. State of Maharashtra & Anr [2025 INSC 1288 (November, 2025)]. Mihir Rajesh Shah put the controversy about mode of communication to rest, clearly holding that grounds of arrest must be communicated in writing to an accused, and stipulated the contours of how this rule would be applied. The logic of that decision focused upon the aspect of this being a constitutional mandate, requiring clear bright lines enforceable by a magistrate to avoid any debate. Mihir Rajesh Shah has been treated as binding and unequivocal by subsequent benches of the Supreme Court. None of them introduced, or reintroduced, any prejudice based test on the question of supplying grounds of arrest or narrowed down the requirement for furnishing these grounds in writing.
A mention of prejudice came in State of Meghalaya v. Sonam Raghuvanshi which was authored by the same bench that decided Jhabra Ram [July 2026]. It was another case reversing grant of bail on non-communication of grounds of arrest. There, the bench held that considerations of prejudice were relevant to determine whether grounds so conveyed lacked material particulars, not the issue of whether written grounds had been furnished or not. On the latter question it held that Mihir Rajesh Shah laid down a clear, albeit prospectively applicable, test requiring the supply of written grounds of arrest. From using a prejudice based test to decide questions about sufficiency of the grounds of arrest to using a prejudice test to decide the question of supply of grounds of arrest is a big shift made in Jhabra Ram. It has been done by turning to an earlier decision in Sri Darshan, without explaining or reading down the later view taken in Mihir Rajesh Shah unequivocally mandating the supply of written grounds of arrest.
The second problem in the Court's reasoning is equating the grounds of arrest issue with what it called the "core parameters" of bail jurisdiction. The former is a constitutional obligation cast upon state authorities, flowing from Article 22 which is a fundamental right. The latter is exercise of judicial discretion under a statute. In cases where non-compliance with a constitutional mandate is found on facts, it must override judge-made considerations for exercise of statutory discretion. Again, this aspect was at the forefront of the reasoning in Mihir Rajesh Shah and prompted the bench to lay down clear bright lines to put this issue beyond debate in hearings before a magistrate. Instead, what the Court does in Jhabra Ram is to treat the constitutional issue as being one factor within the wider matrix of judicial discretion while granting bail. Doing so allows it to transform a clear, unflinching rule, which mandates strict compliance and grants bail even in otherwise bad cases, into a fuzzy standard which becomes one out of the many factors which must be considered and balanced while exercising discretion, thereby retaining greater autonomy for courts.
Jhabra Ram is a classic instance of bad facts making bad law at the Supreme Court, and the tendency of courts to favour outcomes which retain maximum scope for judicial discretion. The accusations of spying on one's own country for the enemy state were facts which made bail seem an impossibility on the "core parameters" that the Court had identified. The documents referred to in the High Court and Supreme Court orders suggest that the accused was given an idea of why he was arrested, but there were admittedly no written grounds of arrest furnished to him. This meant the rule set out in Mihir Rajesh Shah had been breached. Viewed in this light, strict compliance with a legal rule on furnishing written grounds of arrest turned an otherwise undeserving case for bail into one where relief had to be granted. It may be easy to understand this thought process which may have animated the reasoning behind Jhabra Ram. None of it makes it justifiable, or correct.
This is when the contrast between how the High Court and Supreme Court dealt with this scenario appears most stark. The High Court knew the rule, asked whether it was complied with, and held that in serious cases there should be no room for doubt about compliance with constitutional law by state authorities. In the Supreme Court order, no questions are asked as to why a clear rule laid down by the Court itself in November 2025 was not complied with by police in an arrest of January 2026. The Court did not create a singular exception to its rule citing the facts or "attendant circumstances" to deny bail in the case. Instead, the rule itself became negotiable. As a result, a legal mandate — furnish grounds of arrest in writing — settled in November 2025 by one bench of the Court is again open to contestation by November 2026, because another bench of the Supreme Court was uncomfortable about the consequences that flowed in one case from strict adherence to a rule. The perils of polyvocality, I suppose.
To the extent it seeks to undermine the clear mandate of written grounds of arrest in Paragraph 22 ["... the constitutional framework requires that an 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 ..."], Jhabra Ram is arguably laying down an incorrect proposition of law and ought not to be followed as precedent.
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