'Arrest Illegal If Grounds Not Conveyed To Arrestee As Soon As Possible': Kerala High Court

Justice K. Babu made the observation while delivering a common order in four bail applications.

“If the grounds of arrest are not communicated to the arrestee, as soon as may be, he will not be able to effectively exercise the right to consult an advocate. Thus, it is the fundamental right of every person arrested and detained in custody to be informed of the grounds of arrest as soon as possible. If a person is not informed of the grounds of arrest as soon as may be, it would amount to violation of fundamental right rendering the arrest illegal.” Court noted

The petitioners contended that the arrest and remand of the petitioners were in gross violation of the Constitutional protection contained in Article 21 and 22 (1) of the Constitution of India and Section 47 and 48 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS).

The petitioners relied on Mihir Rajesh Shah v State of Maharashtra and Anr [2025 SCC OnLine SC 2356] and submitted that the communication of the grounds of arrest in writing is the law.

The Public Prosecutor submitted that Article 22(1) of the Constitution and Section 47 of the BNSS do not require the communication of the grounds of arrest in writing. Relying on State of Karnataka v Sri Darshan (2025 SCC OnLine SC 1702], it was submitted that only 'substantial compliance' is required with regard to the communication of grounds. It was further submitted that the mere absence of written grounds does not ipso facto render the arrest illegal, unless it results in demonstrable prejudice or a denial of fair opportunity.

The Court noted that the foundational principle of informing grounds of arrest to a person emerged from the constitutional protection of life and personal liberty safeguarded under Article 21 of the Constitution of India.

It examined Article 22 of the Constitution and observed that clause (1) of Article 22 states “inform” whereas the expression used in clause (2) is “communicate”. The Court noted that both the expression signifies that sufficient knowledge of the facts constituting “the grounds” should be imparted effectively and fully to the arrestee in a language which he understands.

The Court then went on to examine the mode of communication for grounds of arrest as discussed in various Supreme Court decisions starting from Harikisan v State of Maharashtra and Others [AIR 1960 SC 911] till the decision in Mihir Rajesh.

The Court noted that the Supreme Court has held in several decisions that the purpose of the constitutional and statutory protection would be rendered nugatory by permitting the authorities concerned to merely read out or permit reading of the grounds of arrest, irrespective of their length and detail, and claim due compliance with the constitutional requirement under Article 22(1).

The Court examined the principle laid down by the Supreme Court in Mihir Rajesh Shah were it was held that the grounds of arrest must be conveyed to the arrestee in writing in all offences at the earliest and observed:

“In order to avoid uncertainty emanating from the lack of consistency regarding the written requirement of the grounds of arrest, the Supreme Court in Mihir Rajesh Shah held that the procedure as affirmed by the said judgment shall govern the arrest henceforth.”

The Court examined the relevant principles governing Article 22 and Section 47 and 48 of the BNSS and observed that the arrest memo and grounds of arrest are different. It observed that the mere information of arrest will not amount to furnishing grounds of arrest.

Relying on Vihaan Kumar v State of Haryana [(2025) 5 SCC 799], Court noted that when a person who is arrested alleges that he was not informed about the grounds of arrst, the burden is on the arresting agency or the State to satisfy the Court that effective compliance was made with the requirement of Article 22 (1).

The Court held that the non-compliance of the constitutional requirement under Article 22 (1) and Article 22(2) would lead to the custody or the detention being rendered illegal. The Court noted that mere fact that a charge sheet has been filed in the matter, would not validate the illegality and the unconstitutionality committed at the time of arresting the accused.

The Court further held that if the grounds of arrest are not informed as soon after the arrest, it would amount to a violation of the fundamental right of the arrestee guaranteed under Article 22(1).

The Court has also held that once the arrest is held to be vitiated, the person arrested cannot remain in custody even for a moment and the violation of Article 22(1) will be a ground to grant bail even if statutory restrictions on the grant of bail exist.

The Court has also laid down that the expression “as soon as may be” mentioned in Article 22 mandates that no arrested person shall be detained without being informed of the grounds at the earliest opportunity.

The Court further observed that an arrested person must be equipped with the information about his arrest and the reasons and grounds of arrest prior to the production to enable him to oppose police custody.

“Time frame within which the grounds of arrest should be supplied cannot be put into a straight jacket formula. As soon as may be in Article 22 does not mean prior to arrest but can be on arrest or thereafter. It indicates as early as it can be conveyed” Court noted

The Court observed that a rigid insistence on informing grounds of arrest immediately after arrest may result in a police officer not being able to discharge his duty responsibly efficiently and effectively.

“In cases where the accused is apprehended red- handed where the informing of grounds of arrest is rendered impractical, it shall be sufficient for the police officer making arrest to convey the same to the person at the time of his arrest. Later within reasonable time in any case not later than two hours prior to the production of arrestee before the Magistrate, grounds of arrest should be supplied to the interested person.”

The Court noted that the rule of two hours as lower limit would ensure that counsel has adequate time frame to scrutinize the grounds of arrest and gather material to defend the arrestee.

The Court has also held that the requirement of Article 22 is not statute specific and the obligation to inform grounds of arrest is not mere procedural formality, it flows from personal liberty. It further held that the failure to supply the grounds in writing to the arrestee prior to or immediately after arrest would not vitiate arrest on grounds of non-compliance under Section 47 of BNSS provided that the grounds are supplied in writing within reasonable time.

The Court has also held that when an arrested person is produced before a Judicial Magistrate for remand, it is the duty of the Magistrate to ascertain whether compliance with Article 22(1) has been made.

“Magistrate Court cannot act as post office affixing a stamp of approval to the remand papers presented before him. The Magistrate has to satisfy himself that the stipulations regarding passing on relevant information to the relative and the entry to this effect is to be recorded by the police officer ", the Court added.

It further added that when the arrested person is released and if remand is sought subject to the conditions expressed, magistrate shall decide the same expeditiously within a week of submission adhering to the principles of Natural Justice.

After issuing directions with regard to the effective mode of communication of grounds of arrest and the time period for communication, the Court went on to individually examine the bail applications and allowed the three bail applications noting non-compliance to Article 22(1) and BNSS provisions, while dismissing B.A 12603/ 2025 noting that the written notice recording arrest was communicated to the father of the accused within the time frame and hence there was compliance with Article 22(1) and provisions of BNSS.

Case Title: Vishnu N P v State of Kerala and connected cases

Case No: Bail Appl. 12603/ 2025 and connected cases

Citation: 2025 LiveLaw (Ker) 822

Counsel for Petitioner: P Mohamed Sabah, Libin Stanley, Saipooja, Sadik Ismayil, R Gayathrui, M Mahin Hamza, Alwin Joseph, Benson Ambrose, Nireesh Mathew, Vivek Venugopal, Babu JOse, Gajendra Singh Rajpurohit, Akhil George, Athul Poulose, S K Adhithyan, Reuben Charly, Shahina Noushad, Krishna S Karunakaran

Counsel for Respondent: M C Ashi (Sr. PP), G Sudheer (PP), M K Pushpalatha (Sr. PP)