Arrest Grounds Need Not Be Separately Communicated When Accused Is On Production Warrant, But Relatives Must Be Informed: Kerala High Court
Isabella Mariam
The High Court of Kerala, Single Bench of Justice Kauser Edappagath, held that when an accused already in judicial custody is arrested in another case following a production warrant under Section 302 BNSS, there is no need to separately inform him of the grounds of arrest. The Court reasoned that Form 37 contains a specific direction to the jail officer to inform the accused of the order's contents and deliver a copy, amounting to sufficient communication. However, since the grounds were not communicated to the accused's relatives, the arrest was vitiated and bail was granted.
The bail application was filed under Section 483 of the Bharatiya Nagarik Suraksha Sanhita, 2023 seeking regular bail by the sixth accused in Crime registered at Palluruthy Police Station, Ernakulam. The offences alleged were under Sections 22(c) and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985. According to the prosecution, the accused persons conspired to smuggle narcotic drugs with the assistance of certain co-accused. During investigation, the police seized 108.9378 grams of MDMA packed in five zip-lock covers. It was alleged that the first accused had stored the contraband for sale inside a bag kept in the cupboard of a rented house.
The applicant had been in custody since 25.03.2025. The defence contended that the grounds of arrest were not communicated in accordance with law at the time of arrest, rendering the arrest illegal. The prosecution opposed the bail application and contended that the grounds of arrest had been communicated.
The court examined the case diary and the circumstances in which the applicant’s arrest was recorded. The applicant was already in judicial custody in another case and was produced on the basis of a production warrant obtained by the investigating officer for recording his arrest in the present case. The prosecution relied on precedents of the Supreme Court and argued that where a person is arrested on a warrant, reading the warrant to the accused amounts to sufficient communication of the grounds of arrest and separate written communication is unnecessary. The court examined the nature of the warrant issued and the legal requirements regarding communication of grounds of arrest to the accused and his relatives.
The court observed, “It is now well settled that the requirement of informing a person of the grounds for arrest is a mandatory requirement of Article 22(1) of the Constitution and Section 47 of BNSS, and absence of the same would render the arrest illegal.”
Referring to Supreme Court precedents, the court recorded, “The Supreme Court in Kasireddy Upender Reddy v. State of Andhra Pradesh … has held that the grounds of arrest should not only be provided to the arrestee but also to his family members and relatives so that necessary arrangements are made to secure the release of the person arrested at the earliest possible opportunity so as to make the mandate of Art.22(1) meaningful and effective, failing which, such arrest would be rendered illegal.”
The court further noted the position laid down by this Court and recorded, “A learned Single Judge of this Court in Alvin Riby v. State of Kerala … held that failure to communicate the grounds of arrest to the near relatives renders the arrest illegal.”
Considering the circumstances of the arrest, the court examined the legal effect of a production warrant and stated, “In this case, the applicant, who was in judicial custody in connection with another case, was produced on a production warrant pursuant to an application filed by the investigating officer to record his arrest.”
Addressing the contention that reading the warrant was sufficient compliance, the court explained the nature of the order and recorded, “The order in Form No.37 is addressed to the officer in charge of the jail where the applicant is lodged. In paragraph No.3 of Form No.37, there is a specific direction to the officer-in-charge of the jail to inform the accused of the contents of the order and to deliver him the attached copy thereof.”
On the requirement of communicating the grounds of arrest, the court stated, “Therefore, I hold that when the formal arrest of an accused is recorded pursuant to an order/production warrant issued under Section 302 of BNSS, there is no requirement to inform him of the grounds for his arrest separately. The order/warrant in Form No.37 itself is sufficient to comply with the requirement.”
However, the court also clarified the obligation regarding communication to relatives and observed, “However, even in such cases, the communication of the grounds for arrest to the relative of the accused is mandatory.”
Applying this principle to the facts of the case, the court recorded its conclusion, stating, “In this case, since the grounds for arrest were not communicated to the relatives of the applicant in accordance with the law, the arrest stands vitiated, and the applicant is entitled to be released on bail.”
The court ordered: The applicant shall be released on bail on executing a bond for Rs.1,00,000/- (Rupees One lakh only) with two solvent sureties for the like sum each to the satisfaction of the jurisdictional Magistrate/Court. The applicant shall fully co-operate with the investigation.”
“The applicant shall appear before the investigating officer between 10.00 a.m and 11.00 a.m. every Saturday until further orders. He shall also appear before the investigating officer as and when required. The applicant shall not commit any offence of a like nature while on bail.”
“The applicant shall not attempt to contact any of the prosecution witnesses, directly or through any other person, or in any other way try to tamper with the evidence or influence any witnesses or other persons related to the investigation. The applicant shall not leave the State of Kerala without the permission of the trial Court. The application, if any, for deletion/modification of the bail conditions or cancellation of bail on the grounds of violating the bail conditions shall be filed at the jurisdictional court.”
Advocates Representing the Parties
For the Petitioners: Francis Assisi, Advocate; Amrutha P. S., Advocate; Manju Luckose, Advocate; Vinayak P. S., Advocate
For the Respondents: K. A. Noushad, Senior Public Prosecutor
Case Title: Ashique v State of Kerala
Neutral Citation: 2026: KER:19267
Case Number: Bail Appl. No. 807 of 2026
Bench: Justice Kauser Edappagath
