Courts Releasing Illegally Arrested Accused Must Permit Same Day Re-Arrest After Compliance With Formalities: Kerala High Court
The Kerala High Court recently directed that courts, releasing an illegally arrested accused, must permit police to re-arrest accused on the same day after compliance with procedural formalities. [2026 LiveLaw (Ker) 506]Justice A. Badharudeen held:“all Criminal Courts shall ensure that while setting an accused at his liberty, finding his arrest as illegal, the Courts shall pass an order on...
The Kerala High Court recently directed that courts, releasing an illegally arrested accused, must permit police to re-arrest accused on the same day after compliance with procedural formalities. [2026 LiveLaw (Ker) 506]
Justice A. Badharudeen held:
“all Criminal Courts shall ensure that while setting an accused at his liberty, finding his arrest as illegal, the Courts shall pass an order on the date of release of the accused itself to the effect that the release of the accused for non-compliance of the formalities of arrest will not stand in the way of arresting the accused by the Investigating Officer, again, on completing the formalities of arrest and the courts must grant permission to the Investigating Officer to arrest the released accused again, on the same day, as per law.”
The Registry was directed to forward a copy of the order to all the criminal courts in the State.
The Court took notice of the fact that the police are purposely not complying with directions with an ulterior motive to release the accused:
“It is noticed in abundance that many accused persons arrested and produced before the courts were set at free for non-compliance of the formalities of arrest…Despite the specific directions, lacuna in complying the said directions to be noticed in wide magnitude. Some Investigating Officers are purposely exploiting this situation to free the accused, who had interest on him, with ulterior motives.”
It was further clarified that in case of illegal arrests, the question of bail does not arise and the accused is to be released without executing bail bond:
“The rationale is that a person without a legal arrest is [n]either in the Police custody or in the custody of the court, when produced before the court to release him on bail. Then grant of bail doesn't arise. Therefore, granting bail to an accused produced before the court, finding the arrest as illegal, would not get support from statutory provisions and the courts should not follow the said wrong procedure. Then the course open for the court is to set the accused person free at the stage before his arrest.”
The observations were made while deciding the bail application of a person accused of the offences under Sections 7(a), 7(b) of the Prevention of Corruption (Amendment) Act, 2018 and under Section 351(2) of the Bharatiya Nyaya Sanhita.
The prosecution allegation was that the petitioner, a public servant, demanded bribes amounting to Rs. 1.5 lakhs for issuing a compliance certificate. He was caught red-handed accepting part-payment of the amount in a trap set.
The Court noted that the petitioner had no criminal antecedents and had been in custody since 27.07.2026. Further noting that the investigation had progressed much and petitioner's custody is no longer required, the Court granted bail to him.
Case No: Bail Appl. No. 4885 of 2026
Case Title: Jose M.P. v. State of Kerala
Citation: 2026 LiveLaw (Ker) 506
Counsel for the petitioner: V. John Sebastian Ralph, Vishnu Chandran, Ralph Reti John, Giridhar Krishna Kumar, Geethu T.A., Mary Greeshma, Liz Johny, Krishnapriya Sreekumar, Abhijith P.S., Devika Manoj, Ashuthosh P. Kamath
Counsel for the respondent: Roy Thomas (Muvattupuzha) - Senior public prosecutor