Kerala High Court Strikes Down Guideline Restricting Production Of Arrested Persons Before Magistrates After 5 PM

A Division Bench comprising Justice Raja Vijayaraghavan V and Justice K.V. Jayakumar observed,

"The provisions must accordingly be examined against the requirement that an arrested person be afforded prompt judicial scrutiny, timely access to legal assistance and an effective opportunity to challenge the legality of arrest and detention, while preserving the investigating agency's ability to undertake lawful and time-sensitive investigative steps. An executive protocol cannot dilute the safeguards guaranteed by the Constitution and the governing statute, whether directly or through procedural arrangements that have the effect of discouraging compliance with them. Though the State is entitled to adopt reasonable measures for the safety of Judicial Officers and other persons involved in the remand process, those measures must operate consistently with the statutory powers of investigation, the duty to produce an arrested person without unnecessary delay, and the constitutional protection of personal liberty."

The Court thus allowed a public interest litigation challenging the constitutional and legal validity of the guidelines issued by the Government of Kerala which laid down the protocol to be followed while producing the accused before the Registered Medical Practitioner in Hospitals or Judicial Officers for medical examination/ procedures/ medico legal examination.

The challenge concerned the guidelines issued in the government order dated September 21, 2023. Clause 18 of the guidelines imposed a condition that, as far as possible, an accused shall be produced during the working hours, i.e., in between 10:00 am and 5:00 p.m. Further, Clause 19 states that if there exists any exceptional circumstances for the production of the accused before the Judicial Officer after 5:00 P.M, there shall be a prior intimation by the superior officer of the investigation officer to the Judicial Officer. It also mandated that the investigation officer shall be present at the time of production of the accused to explain such circumstances.

The petitioner argued that the clauses created a restriction as well as a procedural embargo upon the police officers from producing the accused persons before the Magistrate outside the prescribed time range.

It was further argued that the clauses would have a chilling effect on the statutory and constitutional duty of the police in producing a person who has been arrested before a magistrate as required under Section 57 and Section 58 of the Bharatiya Nagarik Suraksha Sanhitha, 2023 (BNSS).

The State defended the guidelines, submitting that they were intended to streamline the production process, ensure the safety of Judicial Officers and other stakeholders, and facilitate compliance with the constitutional and statutory framework.

It was brought to the notice of the Court that, during the pendency of the writ petition, the guidelines in question were modified by an order dated 24 September 2026.

According to the modified guidelines, the Clause 18 stated that accused persons should, as far as possible, be produced before Judicial Officers between 10 AM and 5 PM, while requiring strict adherence to the 24-hour limit prescribed under Section 58 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS), and the Constitution.

The Clause 19 was also modified, whereby the presence of the investigation officer for the production of the accused was removed.

The petitioner argued that even though the guidelines were diluted by subsequent changes in 2026, the restrictions contained therein are tantamount to imposing unreasonable restrictions.

It was pointed out that the guidelines were issued on the strength of representation of the Association of Judicial Officers and this, the petitioner argued, is violative of Article 22 (2) of the Constitution of India and Section 58 of BNSS.

The petitioner submitted that the Section 57 and 58 of the BNSS lay down that every person must be presented before the Magistrate without unnecessary delay and in no case beyond 24 hours. The petitioner argued that the section 57 and 58 do not impose any restriction based on court hours or the time of day.

Reliance was placed on the decision in Jaskaran Jeet Singh Deol v State of Punjab [2026 INSC 1022], to argue that when a certain procedure is prescribed by the Constitution or the laws for depriving a citizen of his personal liberty, it is the duty of the court to ensure that such procedure is rigorously observed.

The State, however, maintained that the guidelines did not extend or dilute the 24-hour limit and the Clauses cannot be interpreted to mean that any rights of the accused have in any manner been diluted.

Rejecting the notion that compliance with the 24-hour outer limit alone would suffice, the Court emphasised that Article 22(2) of the Constitution and Section 58 of the BNSS do not confer a general entitlement on investigating agencies to defer production until that period is about to expire.

“On a prima facie reading of the guidelines, we are of the view that any direction which would make it easier for the executive to detain an accused or to delay the production before the Magistrate or curtail the procedural protections prescribed by law, cannot be sustained.” the Court said.

The Court observed that an arrested person must be produced before the nearest Magistrate within 24 hours of arrest, excluding the time necessary for the journey, and cannot be detained beyond that period without the authority of a Magistrate.

The Court noted that these provisions prescribe an outer limit and do not displace the separate obligation to produce an arrested person without unnecessary delay.

Illustrating the practical implications of the guidelines, the Court considered a situation in which a person is arrested at or after 5 PM. The requirement to establish exceptional circumstances and provide prior intimation could make an investigating officer reluctant to produce the accused immediately, potentially encouraging postponement until the following morning.

The Bench observed that such postponement could delay the accused's opportunity to obtain legal assistance, challenge the legality of the arrest, oppose remand and seek appropriate relief before the Magistrate.

“A procedural arrangement intended to regulate the timing of production may, in its practical operation, discourage the promptness that the constitutional and statutory safeguards are designed to secure.” Court observed.

The Court also considered a scenario in which an accused arrested at around 4:30 PM makes a disclosure that could lead to the recovery of a weapon, stolen property or other material evidence. An investigating officer might choose to produce the accused before 5 PM and seek police custody the following day rather than arrange for production outside ordinary court hours. Depending on the circumstances, this could compromise time-sensitive investigative steps or result in the loss of an opportunity to secure material evidence.

The Bench held that the constitutional validity of the guidelines had to be assessed not merely by their literal wording but also by the manner in which they might operate in practice.

It observed that the expressions “as far as possible” and “exceptional circumstances”, when read together, could create a disincentive to production outside ordinary court hours even where immediate production was warranted.

Referring to Supreme Court decisions, including Sheela Barse v. State of Maharashtra [(1983) 2 SCC 96] , Joginder Kumar v. State of U.P. [(1994) 4 SCC 260], the Court underscored the importance of effective legal assistance, compliance with the requirements governing communication of the grounds of arrest, and meaningful judicial scrutiny at the remand stage.

The Court observed that the fact that the guidelines refer to the twenty four-hour limit does not by itself answer the objection that the guidelines violate Article 22(2) of the Constitution. It further added that an administrative preference for production during ordinary court hours does not override the obligation to produce an arrested person without unnecessary delay.

“the legitimate objectives of ensuring the safety of Judicial Officers and facilitating orderly production cannot justify procedural requirements that operate to the detriment of the arrested person's fundamental rights or unnecessarily impede a lawful investigation.” the Court added.

The Court thus set aside the modified guidelines under the government order dated September 24, 2026, to the extent that they stipulated a preference for production between 10 AM and 5 PM and permitted production after 5 PM only in exceptional circumstances. It observed,

The Bench expressly upheld the requirement of prior intimation to the concerned Magistrate in cases of production after 5 PM.

The writ petition was accordingly allowed.

Counsel for the Petitioner: T.K. Sandeep, Reshma Viswanathan

Counsel for Respondent: Laliza T.Y (Sr. GP), Asaf Ali (DGP), Rasheed C. Nooranad (Spl. GP)