Grounds Of Arrest Need Not Be Separately Communicated To Accused On Production Warrant, But Relatives Must Be Informed: Kerala High Court
The Kerala High Court recently held that when an accused, who is already under judicial custody, is arrested in relation to another case following a production warrant under Section 302 BNSS, there is no need to separately inform him of the grounds of arrest. The reasoning of the Court was that as per Form 37, relating to the order requiring production of a person in prison as per Section...
The Kerala High Court recently held that when an accused, who is already under judicial custody, is arrested in relation to another case following a production warrant under Section 302 BNSS, there is no need to separately inform him of the grounds of arrest.
The reasoning of the Court was that as per Form 37, relating to the order requiring production of a person in prison as per Section 302, there is a specific direction to the officer-in-charge of the jail to inform accused of the contents of the order and to deliver him the attached copy and this amounts to sufficient communication.
Dr. Justice Kauser Edappagath, however, clarified that in such cases, it is mandatory to inform the relative of the accused.
The Court was considering a bail application preferred by the 6th accused in an NDPS case, who was arrested in March last year.
The accused contended that the grounds of his arrest were not duly communicated at the time of arrest whereas the prosecution argued that the same was done. The prosecution referred to the Supreme Court judgments in Mihir Rajesh Shah v. State of Maharashtra and Kasireddy Upender Reddy v. State of Andhra Pradesh, to contend that there is no need for separate communication of grounds for arrest in writing to the accused or his relative when accused is arrested on a warrant and the warrant is read over to him.
The Court found that there are prima facie materials to connect the accused with the crime but went on to consider the arguments relating to the non-communication of grounds of arrest.
It was noted that the accused was in judicial custody in connection with another case and he was produced before court pursuant to a production warrant under Section 302 BNSS to the prison official.
The Court was of the opinion that though the finding in the afore Apex Court decisions is with respect to warrant under Section 72 BNSS, the same can be extended to production warrant under Section 302 BNSS. However, it was made clear that communication of grounds of arrest to relatives is mandatory even in such cases.
“I see no reason not to extend the finding concerning the warrant issued under Section 72 of BNSS in Mihir Rajesh Shah (supra) and Kasireddy Upender Reddy (supra) to the order issued under Section 302 of BNSS in Form No.37 as well. 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. 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, even in such cases, the communication of the grounds for arrest to the relative of the accused is mandatory,” the Court observed.
Since in the present case, the grounds for arrest were not communicated to the relatives of the accused, the Court opined that the arrest is vitiated and the accused is entitled to be released on bail.
It thus allowed the bail application on conditions.
Case No: B.A. No. 807 of 2026
Case Title: Ashique v. State of Kerala
Citation: 2026 LiveLaw (Ker) 139
Counsel for the petitioner: Francis Assisi, Amrutha P.S., Manju Luckose, Vinayak P.S.
Counsel for the respondent: K.A. Noushad, Sr. Public Prosecutor