Executive Protocol Cannot Dilute Constitutional Safeguards: Kerala High Court Strikes Down Guidelines Treating Production Of Accused Before Magistrate After 5 PM As “Exceptional”
The Bench upholding prior intimation requirement, noted that the 24-hour limit is an outer limit, not an entitlement to defer production.
The Kerala High Court has held that an executive protocol cannot dilute the safeguards guaranteed by the Constitution and the governing statute, whether directly or through procedural arrangements that have the effect of discouraging compliance with them. The State may adopt reasonable measures for the safety of Judicial Officers. These must still operate consistently with the duty to produce an arrested person without unnecessary delay.
The Court set aside the guideline stipulating that an accused shall, as far as possible, be produced between 10 AM and 5 PM, and that later production is permitted only in exceptional circumstances. It held that Article 22(2) of the Constitution of India and Section 58 of the BNSS prescribe outer limits, not a right to defer production. The requirement of prior intimation to the Magistrate was upheld.
A Division Bench of Justice Raja Vijayaraghavan V and Justice K. V. Jayakumar observed, “…An executive protocol cannot dilute the safeguards guaranteed by the Constitution and the governing statute, whether directly or through procedural arrangements that have the effect of discouraging compliance with them. Though the State is entitled to adopt reasonable measures for the safety of Judicial Officers and other persons involved in the remand process, those measures must operate consistently with the statutory powers of investigation, the duty to produce an arrested person without unnecessary delay, and the constitutional protection of personal liberty”.
“…The modified guidelines vide G.O. (Ms) No. 173/2026/HOME dated 24.09.2026, insofar as they stipulate that an accused shall, as far as possible, be produced before the Judicial Officer between 10 a.m. and 5 p.m. and that production after 5:00 p.m. shall be permitted only in exceptional circumstances, cannot be sustained as constitutionally valid and are accordingly set aside to that extent”, it noted further.
Advocate T.K. Sandeep appeared for the petitioner and Asaf Ali, Director General of Prosecution appeared for the respondents.
The public interest petition, filed by Adv. P.S. Subeesh, challenged Clauses 17 to 21 of G.O.(Ms) No. 202/2023/Home dated September 21, 2023. The guidelines regulate production of accused persons before Judicial Officers, particularly outside court hours. They were framed after the death of a house surgeon, Dr. Vandana Das, at the Taluk Hospital, Kottarakkara, when the High Court directed the State to evolve a protection protocol after hearing stakeholders.
The petitioner argued that the clauses have a chilling effect on the police duty under Sections 57 and 58 BNSS. The State contended that the guidelines were administrative and did not alter the 24-hour limit. While the petition was pending, a memo informed the Court that Clauses 18 to 21 had been modified by G.O.(Ms) No. 173/2026/Home dated September 24, 2026. The Court examined the modified Clauses 18 and 19.
The Court noted that the modified guideline cited Article 22(1) where Article 22(2) of the Constitution of India was meant. It reasoned that treating impending expiry of 24 hours as the “exceptional circumstance” could encourage police to wait until morning. That would delay legal assistance, challenge to the arrest, and opposition to remand, even if the outer limit were met. It also illustrated how an arrest at 4:30 PM, followed by a disclosure leading to recovery, could pull investigators into deferring time-sensitive steps. The phrases “as far as possible” and “exceptional circumstances” together may disincentivise production outside court hours. While noting that safeguards must not become procedural impediments to law enforcement, the Court held that administrative preference for court hours cannot override the duty of prompt production.
The petition was allowed, and the modified guidelines were set aside to the extent they prescribe production between 10 AM and 5 PM and permit later production only in exceptional circumstances. The prior intimation requirement was upheld. The State was directed to issue fresh guidelines in line with the Court’s findings.
Cause Title: Adv. P.S. Subeesh v. State of Kerala & Ors. (Neutral Citation: 2026:KER:80664)
Appearances:
Petitioner: T.K. Sandeep and Reshma Viswanathan, Advocates.
Respondent: Asaf Ali, Director General of Prosecution, Laliza T.Y., Sr. Government Pleader and, Rasheed C. Nooranad, Special Government Pleader.