No Legal Bar To Re-Arrest After First Arrest Declared Illegal, But Investigating Agency Must Obtain Prior Judicial Approval: Kerala High Court

Dr. Justice Kauser Edappagath delivered the judgment while deciding a batch of bail applications arising out of prosecutions under the Narcotic Drugs and Psychotropic Substances Act (NDPS Act).

The cases involved accused persons who had earlier secured release after the Court found violations of constitutional safeguards relating to arrest but were re-arrested immediately thereafter.

The Court examined whether an accused who is released because the initial arrest contravened Article 22(1) or Article 22(2) of the Constitution acquires immunity from any fresh arrest in the same crime, or whether the investigating agency may effect a second arrest after curing the procedural defects.

The counsel for the applicants argued that there are no statutory provisions authorizing the rearrest when the initial arrest has been declared non-est, while the public prosecutor argued that there is no legal bar to rearrest a person whose previous arrest has been declared illegal on the ground of procedural error.

The prosecution further submitted that the decision to arrest or rearrest is purely within the domain of the investigating agency, and there are sufficient materials in the present case to justify the arrest and procedural safeguards.

The amicus curiae, appointed by the Court, submitted that unchecked rearrest powers could make the constitutional guarantees illusory, while adding that the technical lapses would not immunise offenders from prosecution. The amicus curiae further suggested that rearrest may be permissible subject to strict judicial oversight.

The Court noted that neither the Constitution nor the Bharatiya Nagarik Suraksha Sanhita (BNSS) or the Code of Criminal Procedure (CrPC) creates an embargo from re-arrest. The power of arrest during investigation continues to exist so long as the statutory conditions governing arrest are satisfied.

The court placed reliance on Mihir Rajesh Shah v State of Maharashtra and Anr [2025 SCC OnLine SC 2356], Directorate of Enforcement v Subhash Sharma [2025 SCC OnLine SC 240] and other decisions of the Supreme Court and noted that these decisions reaffirmed the constitutional promise under Article 22(1) and (2).

The Court observed that the concept of re-arrest is not alien in the Indian criminal jurisprudence. Section 35 of BNS was examined to highlight this point and the Court noted that the power to arrest under the said section is not a one-time measure and is exercisable as long as it satisfies the statutory parameters laid down in the section.

The Court further noted that the re-arrest is mentioned in section 40 (2) of BNSS which deals with private arrest. The court noted that according to the section a private individual must hand the person he had arrested to a police officer, who is then required by law to re-arrest them.

“This signifies that the legislature is not oblivious to the concept of re-arrest, but the necessity of specifically providing for re-arrest was not warranted, since the power of a police officer to arrest any person without a warrant/order of a Magistrate is provided by Section 35 of BNSS/Section 41 of Cr.P.C.” the Court added.

The Court noted that Section 480(5) of BNSS empowers any Court that has released a person on bail to direct that such person be arrested and committed to custody if circumstances justify the cancellation of the bail.

“The police can re-arrest an accused if the investigation reveals new facts leading to the addition of a more serious non-bailable offence to the existing FIR. Re-arrest is also permitted if a Court formally cancels a previously granted bail, typically due to the misuse of liberty, witness intimidation or evidence that the accused violated the bail conditions. Similarly, if an accused escapes or is rescued from lawful custody, the person who had them in custody is permitted to immediately pursue and rearrest them without a warrant anywhere in India.” Court noted.

The Court further relied on Rakesh Kumar Paul v State of Assam [(2017) 15 SCC 67], and Bikramjith Singh v State of Punjab [(2020) 10 SCC 616] where the Supreme Court has acknowledged the power to arrest a person who has been released.

The Court thus held that even though BNSS does not expressly contemplate the subsequent arrest of a person released at the stage of investigation, the investigating agency may invoke the power conferred under Section 35 of BNSS to effect such arrest.

The Court noted that an effective and efficient investigation is a facet of Article 21 of the Constitution as it served the larger societal objectives of crime detection, prevention and eradication, while ensuring justice to the victim.

“Where an accused is released owing to non-compliance with Article 22(1) and (2), the lapse reflects an omission on the part of the investigating agency. The possibility of such non-adherence being deliberately orchestrated by a police officer in collusion with an influential accused cannot be ruled out. In the paramount interest of society, such omission—or even deliberate evasion of judicial scrutiny of remand—cannot be construed as an absolute bar to a subsequent arrest, provided the exercise of power remains subject to constitutional and statutory limitations.” Court noted.

The Court thus noted that the constitutional safeguards under Article 22(1) and (2) or the provision of the BNSS/ Cr.PC does not impose an absolute fetter on the power to subsequently arrest a person released on account of infraction of Article 22 (1) and (2).

However, it clarified that where an accused has been released on bail because the original arrest violated Articles 22(1) or 22(2), the investigating agency cannot simply arrest the person again. Instead, it must first approach the court for cancellation of bail.

Even in cases where a court has merely declared the arrest illegal and ordered release without granting bail, the High Court held that the investigating agency must move an application seeking permission of the Magistrate or Court for arrest, remand, or custody.

“In case such a person has to be subsequently arrested, the investigating agency must first obtain cancellation of bail or secure permission to arrest, as the case may be. It would safeguard the individual's liberty while preserving the police's legitimate right to investigate.” Court noted.

The Court noted that allowing immediate re-arrest without court oversight may lead to inconsistent treatment of similarly situated accused and undermine the constitutional protection intended by Article 22.

The Court thus allowed the bail applications noting that in the present instance all the applicants were rearrested immediately upon release from jail, either within the compound or just outside the premises in connection with the same crime. Since these rearrests were effected without obtaining prior permission from the Court that had granted bail, the Court held that the arrests stand vitiated and granted the bail.

Case Title: Ramjith Nayak v State of Kerala and Ors. and connected cases

Case No: Bail Appl. 13215/ 2025 and connected cases

Citation: 2026 LiveLaw (Ker) 362

Counsel for Petitioner: Sam Isaac Pothiyil, S. Suraja, Muhammed Suhair C.A, Sahla K.K, S. Rajeev, V. Vinay, M.S. Aneer, Sarath K.P, Anilkumar C.r, K.S. Kiran Krishnan, Dipa V, Akash Cherian Thomas, Azad Sunil, T.P. Aravind, Maheswar Padickal, Akshara S, Nivedita Rajeev, J. Krishnakumar, K.Nandakumar, Arjun S., Appu Babu, K.V. Sree Vinayakan, Colin Alex, P. Mohamed Sabah, Libin Stanley, Saipooje, Sadik Ismayil, R. Gayathri, M. Mahin Hamza, Alwin Joseph, Benson Ambrose

Counsel for Respondents: K.A Noushad (Sr.PP), M. C. Ashi (Sr. PP), Sreeja V. (Sr. PP) Sreegesh M.K (Amicus Curiae)