Accused Re-Arrested Without Court Permission After Prior Arrest Was Vitiated Entitled To Bail: Kerala High Court
The Kerala High Court recently held that bail cannot be denied citing implied permission to re-arrest was given by the Magistrate when no application seeking the same was moved by the investigating officer. [2026 LiveLaw (Ker) 477]
Dr. Justice Kauser Edappagath granted bail to an accused, who was re-arrested without prior judicial approval after his earlier arrest was vitiated due to non-communication of grounds of arrest.
Reference was made to its earlier decision in Ramjith Nayak v. State of Kerala and Ors., wherein it was directed that investigating agency must obtain prior judicial approval for re-arrest after first arrest is declared illegal for violation of constitutional safeguards relating to arrest.
“The learned Sessions Judge added that permission of the Magistrate would be implied. When an accused approached the Court of Law alleging that his fundamental right is violated, no Court is supposed to approach the issue in such a light manner. There is no question of implied permission. It was specifically directed in Ramjith Nayak (supra) that an application in writing should be moved by the investigating agency seeking permission to re-arrest and the learned Magistrate must pass a reasoned order after affording an opportunity to the accused. The said direction was not followed in this case. Hence, the subsequent arrest of the applicant is vitiated and he is entitled to be released on bail,” the Court observed.
The petitioner is the 1st accused, who was accused of the offences under the Narcotic Drugs and Psychotropic Substances Act, 1985. The allegation was that he along with another accused was found to be in possession of 1.899 grams of MDMA in their car.
On the day after his arrest, the petitioner was produced before the Magistrate court, which released him after realizing that the grounds of arrest were not communicated as required by law. Just hours after his release, the petitioner was re-arrested and produced before the same Magistrate, who remanded him to judicial custody.
The petitioner moved a bail plea before the Sessions Court and argued that his subsequent arrest was illegal as per Ramjith Nayak case. However, as he was denied bail, he came before the High Court.
The Court noted that the Magistrate did not consider whether the re-arrest was in accordance with law and mechanically remanded the petitioner to judicial custody. It also took note of the fact that the Sessions Court, while considering the bail plea, presumed that the Magistrate would be aware of the earlier case and would have permitted re-arrest.
It came to the conclusion that the subsequent arrest was also not legal and therefore, the petitioner was entitled to be released on bail. The Court allowed the bail plea.
The Court directed the Registry to call for an explanation from the Magistrate and the Sessions Court as to why the direction in Ramjith Nayak was not followed in the case. It was also directed to forward a copy of the afore decision to all criminal courts in the State.
Case No: B.A. No. 4488 of 2026
Case Title: Abdul Rauf M. v. State of Kerala and Anr.
Citation: 2026 LiveLaw (Ker) 477
Counsel for the petitioner: Saleek C.A., T.U. Sujith Kumar, Hamdan Mansoor K.
Counsel for the respondents: Aneeda Beegum - Sr. Public Prosecutor