Failure to Comply With Requirement of Informing Grounds of Arrest Vitiates Arrest: Kerala High Court Directed Immediate Release of Accused
The Court said the requirement of informing an arrested person of the grounds of arrest is not a mere formality but a mandatory constitutional safeguard under Article 22(1), and noncompliance renders the arrest illegal and unconstitutional.
Justice Kauser Edappagath, Kerala High Court
The Kerala High Court held that the failure to furnish the grounds of arrest to an accused vitiate the arrest and constitutes a violation of their fundamental rights under Articles 21 and 22(1) of the Constitution.
A Single Bench of Dr. Justice Kauser Edappagath observed, “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 for 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.”
The Court added, “Noncompliance with Article 22(1) of the Constitution will be a violation of the fundamental right 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.”
The Petitioners were represented by Senior Advocate P. Sreekumar, while Special Government Pleader P. Narayanan appeared for the Respondents.
Brief Facts
Two writ petitions were filed before the High Court contending that the accused in both cases were arrested without being furnished the grounds of arrest, thereby violating Article 22(1) of the Constitution of India and Section 47(1) of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS). In one of the petitions, the petitioner is the father of an accused arrested under Section 22(c) of the Narcotic Drugs and Psychotropic Substances Act, 1985. In the other, the Petitioner is the mother of the second accused in a case involving alleged offences punishable under Sections 420, 409, and 120B read with Section 34 of the Indian Penal Code, 1860 (IPC), and Sections 3, 5, 21, and 23 of the Banning of Unregulated Deposit Schemes Act, 2019 (BUDS Act). The Petitioners sought a declaration that the arrests, having been carried out without serving the grounds of arrest, were illegal, and prayed for the release of the accused from custody.
The petitioners submitted that the requirement to inform an arrested person of the grounds of arrest is mandatory under Article 22(1) of the Constitution of India, and since the accused were not furnished with such grounds, their arrests were illegal and liable to be set aside.
The Respondents contended that all legal formalities were complied with in accordance with Chapter V of the BNSS at the time of the arrest of the accused and that the trial court had already dismissed the bail applications filed by the accused.
Reasoning of the Court
The Court noted that the Petitioners in both cases had specifically taken up the plea that the grounds of arrest were not furnished to the accused.
The Court observed that Article 22(1) of the Constitution mandates that no person who is arrested shall be detained without being informed, as soon as may be, of the grounds of arrest. It held that this is not a mere formality but a mandatory statutory and constitutional requirement, and noncompliance with Article 22(1) amounts to a violation of the fundamental rights guaranteed to the accused under the Constitution.
The Court referred to Prabir Purkayastha v. State (NCT of Delhi) (2024), wherein it was held that any person arrested under UAPA or any other offence has a fundamental and statutory right to be informed about the grounds of arrest in writing, and a copy of such written grounds must be furnished as a matter of course and without exception. It was observed that the right flows from Article 22(1) of the Constitution, and any infringement would vitiate the process of arrest and remand.
The Bench observed, “Admittedly, the grounds of arrest were not furnished to the accused in writing. Absolutely no material has been furnished by the respondents to prove that the grounds of arrest were communicated orally. As already stated, when the accused alleges non-compliance with the requirement of Article 22(1) of the Constitution, the burden is always on the arresting officer/investigating officer, to prove compliance of the same.”
The Court held that arrests of both accused were in violation of Article 22(1) of the Constitution of India and Section 47 of the BNSS. It added, “ On the failure to comply with the requirement of informing grounds of arrest, as mandated under Article 22(1) of the Constitution, the arrest is vitiated and the person arrested cannot remain in custody even for a second…hence both accused have to be released forthwith.”
Consequently, the Court disposed of the petitions and directed the Trial Court to issue a release order to the jail authorities to release the accused. However, the Court clarified that the judgment would not prevent the investigating agency from arresting the accused again in accordance with the law.
Cause Title: Babu M. v. State of Kerala & Anr. (Neutral Citation 2025:KER:30501)
Appearance:
Petitioners: Senior Advocate P. Sreekumar; Advocates 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.
Respondents: Special Government Pleader P. Narayanan; Senior Government Pleader Sajju S.
