Informing An Accused Person Reasons For Arrest Is A Constitutional Requirement, Arrest Is Vitiated Otherwise: Kerala HC

“Sub-section (1) of Section 35 of BNSS list cases when police may arrest a person without a warrant. Section 47 clearly states that every police officer or other person arresting any person without a warrant shall forthwith communicate to him full particulars of the offence for which he is arrested or other grounds for such arrest. Article 22(1) of the Constitution of India provides that no person who is arrested shall be detained in custody without being informed, as soon as may be, of the grounds of such arrest. Thus, the requirement of informing the person arrested of the grounds of arrest is not a formality but a mandatory statutory and constitutional requirement. Noncompliance with Article 22(1) of the Constitution will be a violation of the accused guaranteed by the said Article. It will also amount to a violation of the right to personal liberty guaranteed by Article 21.”

Justice Kauser Edappagath relied on Vihaan Kumar v State of Haryana and Others (2025), Pankaj Bansal v Union of India and Others (2023), Prabir Purkayastha v State (2024) and observed that if the grounds are not informed soon after the arrest, it would amount to violation of fundamental right.

The Court was dealing with 2 cases where it was alleged that the concerned person was arrested without informing them of the grounds of arrest. At the time of considering the case, they were both in judicial custody. The Court noted that admittedly, the grounds of arrest was not given in writing. The prosecution had submitted before the Court that the grounds of arrest were informed and the formalities under BNSS were complied with. The Court relied on Vihaan Kumar and said that when the grounds of arrest is not given in writing, it is upon the Investigating Officer/ Agency to prove compliance with the requirements. The Court said that the prosecution has produced no material to prove the grounds of arrest were communicated orally.

Thus, the court allowed the petition saying that the persons arrested “cannot remain in custody even for a second”.

Counsel for the Petitioners: Advocates P. Sreekumar (Senior CounselI, R. Anas Muhammed Shamnad, S. Rajeev, M. S. Aneer, T. U. Sujith Kumar, Jude James, Mohanan Pillai M. B., Saleek C. A., Thareek T. S., Hamdan Mansoor K., Binny Thomas, Suneethi S., Helen P.A., Athul Roy, Indrajith Dileep, Amala Anna Thottupuram, Abhilash T.

Counsel for the Respondents: Advocates P. Narayanan (Spl. GP), Sajju S. (Senior GP)

Case No: WP(Crl.) 240 & 247 of 2025

Case Title: Babu M. v State of Kerala and Another & Connected case

Citation: 2025 LiveLaw (Ker) 268