Arrest Without Disclosure Of Grounds Violates Fundamental Rights | Kerala High Court Orders Immediate Release For Breach Of Article 22 And BNSS Safeguards
Sanchayita Lahkar
The High Court of Kerala Single Bench of Justice Dr. Kauser Edappagath held that the arrest of the accused in two separate criminal proceedings was unconstitutional due to non-compliance with the mandate under Article 22(1) of the Constitution of India and Section 47(1) of the Bharatiya Nagarik Suraksha Sanhita, 2023. The Court directed the respective trial courts to issue release orders to the jail authorities for the immediate release of both accused persons. It further clarified that the investigating agencies were at liberty to arrest the accused afresh in accordance with law.
The petitions arose from the arrests of two individuals in connection with separate criminal proceedings registered by police authorities in Malappuram and Pathanamthitta districts of Kerala.
The petitioner in WP(Crl.) No. 240 of 2025 was the father of the accused in Crime No. 1498/2024 registered at Tirur Police Station, Malappuram. The accused was charged under Section 22(c) of the Narcotic Drugs and Psychotropic Substances Act, 1985. He was arrested on 2 October 2024. A bail application was filed before the trial court and subsequently dismissed, resulting in his continued judicial custody.
The petitioner in WP(Crl.) No. 247 of 2025 was the mother of the second accused in Crime No. 447/2024 registered at Koipuram Police Station, Pathanamthitta, which was later transferred to the Crime Branch and re-registered as CB Crime No. 715/2024 of CBCID, Kollam. The offences alleged in that matter were under Sections 420, 409, and 120B read with Section 34 of the Indian Penal Code, 1860 and Sections 3, 21, 5, and 23 of the Banning of Unregulated Deposit Schemes Act, 2019. The second accused was arrested on 6 February 2025, and her application for bail before the Designated Court for BUDS Act offences was rejected.
In both writ petitions, the petitioners contended that the arrests were carried out without furnishing the arrested individuals with the grounds of arrest. They submitted that this omission amounted to a violation of the constitutional safeguards enshrined in Article 22(1) and the statutory requirement under Section 47(1) of the BNSS. Accordingly, they sought a declaration from the Court declaring the arrests illegal and an order for the immediate release of the accused.
The petitioners relied on precedents from the Supreme Court, including Pankaj Bansal v. Union of India, Prabir Purkayastha v. State (NCT of Delhi), and Vihaan Kumar v. State of Haryana, to support their claim that furnishing written grounds of arrest is a non-negotiable legal mandate.
The respondents, including the State of Kerala and its police officers, submitted that all formalities mandated under Chapter V of the BNSS were complied with during the arrests. In their respective filings, it was stated that the accused were informed of the charges and that the procedures were carried out lawfully.
However, it was conceded that no written communication of the grounds of arrest was made available to either accused. The respondents claimed that the grounds were communicated orally, though no documentary or testimonial evidence substantiating this assertion was produced before the Court.
The Court recorded: “The requirement of informing the person arrested of the grounds of arrest is not a formality but a mandatory statutory and constitutional requirement.” Citing Article 22(1) of the Constitution and Section 47 of the BNSS, the Court stated: “Noncompliance with Article 22(1) of the Constitution will be a violation of the fundamental right of the accused guaranteed by the said Article. It will also amount to a violation of the right to personal liberty guaranteed by Article 21.”
Referring to authoritative decisions, the Court noted: “The question whether failure to communicate written grounds of arrest would render the arrest illegal, necessitating the release of the accused, is no longer res integra.” In Pankaj Bansal, it was held: “A copy of written grounds of arrest should be furnished to the arrested person as a matter of course and without exception.”
The Court also observed: “In Prabir Purkayastha, it was held that any person arrested for an offence has a fundamental and statutory right to be informed about the grounds of arrest in writing, and a copy of such written grounds has to be furnished to the arrested person.”
In respect of Vihaan Kumar, the Court recorded: “It was further held that if the grounds of arrest are not informed, as soon as may be after the arrest, it would amount to the violation of the fundamental right of the arrestee guaranteed under Article 22(1) of the Constitution, and the arrest will be rendered illegal.”
In the facts of the present case, the Court noted: “The petitioners in both cases have specifically taken up a plea that the grounds of arrest were not furnished to the accused.” Addressing the respondent’s position, the Court stated: “There is absolutely no material to substantiate the said plea in both cases.”
The Court observed: “Admittedly, the grounds of arrest were not furnished to the accused in writing. Absolutely no material has been furnished by the respondents to prove that the grounds of arrest were communicated orally.” The burden, as clarified in the ruling, lies on the arresting authority to demonstrate compliance once non-compliance is alleged.
The Court found that the arrests of the accused in Crime No.1498/2024 of Tirur Police Station, Malappuram, and of the second accused in Crime No.447/2024 of Koipuram Police Station, Pathanamthitta, which had been re-registered as CB Crime No.715/2024 of CBCID, Kollam, were carried out in contravention of Article 22(1) of the Constitution of India and Section 47 of the Bharatiya Nagarik Suraksha Sanhita.
It concluded that the failure to inform the accused of the grounds of arrest, as required under Article 22(1), rendered the arrests invalid, and the individuals could not lawfully remain in custody even momentarily.
Accordingly, the Court directed the respective trial courts to issue release orders to the jail authorities for the immediate release of the accused persons in both cases.
It further clarified that nothing in the judgment would preclude the investigating agencies from arresting the accused afresh, provided such action is taken strictly in accordance with law. The writ petitions were thereby disposed of.
Advocates Representing the Parties
For the Petitioners: Sri. P. Sreekumar, Senior Counsel; R. Anas Muhammed Shamnad; S. Rajeev; M. S. Aneer; T. U. Sujith Kumar; Jude James; Mohanan Pillai M. B.; Saleek C. A.; Thareek T. S.; Hamdan Mansoor K.; Binny Thomas; Suneethi S.; Helen P. A.; Athul Roy; Indrajith Dileep; Amala Anna Thottupuram; Abhilash T.
For the Respondents: Shri. P. Narayanan, Special Government Pleader to DGP and Additional Public Prosecutor; Shri. Sajju S., Senior Government Pleader
Case Title: Babu M v. State of Kerala & Another and J. Vijayalakshmi v. Deputy Superintendent of Police & Another
Neutral Citation: 2025:KER:30501
Case Number: WP(Crl.) Nos. 240 and 247 of 2025
Bench: Justice Dr. Kauser Edappagath
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