Illegal Arrest Requires Release Without Bail: Kerala High Court Directs Criminal Courts In State To Ensure Arrest Formalities Before Remand

A Bench of Justice A. Badharudeen held, “it is pertinent to note that the Criminal Courts in the District Judiciary in the State are specifically directed to ensure that when an accused was arrested and produced before the court without complying the formalities of arrest the court shall ensure compliance of the formalities of arrest before his remand.”

Advocate V.John Sebastian Ralph appeared for the Petitioner and Advocate PP Roy Thomas appeared for the Respondent.

The Court issued the direction while allowing a bail application filed by the petitioner, who is the sole accused in Crime registered by the Vigilance and Anti-Corruption Bureau (VACB), Idukki. The petitioner had sought regular bail under Section 483 of the Bharatiya Nagarik Suraksha Sanhita, 2023. The prosecution alleged that the petitioner, while working as Assistant Executive Engineer, Thodupuzha Municipality, demanded ₹1.50 lakh as illegal gratification for issuance of a completion certificate and subsequently demanded and accepted ₹75,000 as part of a trap.

The Court noted that “many accused persons arrested and produced before the courts were set at free for non-compliance of the formalities of arrest.” It particularly referred to cases involving non-issuance of prior notice to the accused and non-furnishing of grounds of arrest.

The Court held that when an arrest is found to be illegal for non-compliance with the formalities of arrest, there is no arrest or custody in the eye of law and the accused would be relegated to the stage before the arrest. It added, "The rationale is that a person without a legal arrest is 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."

According to the Court, in such circumstances, granting bail does not arise. Instead, the course open to the court is to “set the accused person free at the stage before his arrest.”

At the same time, the High Court made it clear that such release should not prevent the police from arresting the accused again after complying with the formalities of arrest.

The Court directed that when an accused is released for non-compliance with the formalities of arrest, the same order should state that the release “shall not be a rider for the arrest of the accused so released by the Police on complying the formalities of the arrest.”

The Court also directed that permission should be granted to the Investigating Officer to arrest the released accused again, on the same day, after completing the required formalities and in accordance with law.

The High Court referred to the directions issued in Ashokan K.A. v. State of Kerala, reported in 2026 (2) KHC 523, and observed that Criminal Courts in the District Judiciary had already been specifically directed to ensure compliance with the formalities of arrest before remand.

It further directed that if the formalities could not be completed within the time available before remand, “the Court shall release the accused at his liberty forthwith without granting bail and executing bail bond.”

The Court expressed concern that, despite the earlier specific directions, lapses in complying with the arrest formalities continued in wide magnitude. It observed that some Investigating Officers were “purposely exploiting this situation to free the accused, who had interest on him, with ulterior motives.”

“Therefore, all Criminal Courts in the District Judiciary of the State are specifically directed to comply the above directions, without fail hereafter,” the Court said.

The Registry was directed to forward a copy of the order to all Criminal Courts in the State, with a specific direction to comply with the directions contained in paragraph 8 of the order without fail, hereafter.

While considering the bail plea, the Court noted that the petitioner had no criminal antecedents, had been in custody since July 27, 2026, and that the investigation had achieved much progress. It held that further custody for the purpose of investigation was not necessary and granted bail subject to conditions.

Cause Title: Jose M.P. v. State Of Kerala, [2026:KER:69467]

Appearance:

Petitioner: Advocates 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

Respondent: Advocate PP Roy Thomas

Click here to read/download Order