Kerala High Court: Section 47 BNSS Can’t Dilute Requirement Of Article 22(1); Arrested Person Has Right To Be Informed Of Arrest Grounds As Soon As Possible
The Kerala High Court said that existence of power to arrest and justification for exercise of such power are two different aspects.
The Kerala High Court reiterated that Section 47 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) cannot have the effect of diluting the requirement of Article 22(1) of the Constitution.
The Court reiterated thus in Bail Applications pertaining to the alleged violation of the accused persons’ right under Article 22(1) and Sections 47 and 48 of BNSS.
A Single Bench of Justice K. Babu observed, “… 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. … Section 47 of the BNSS cannot have the effect of diluting the requirement of Article 22(1). If held so, Section 47 will attract the vice of unconstitutionality. Section 47 lays down the requirement of communicating the full particulars of the offence for which a person is arrested to him.”
The Bench said that existence of power to arrest and justification for exercise of such power are two different aspects.
Advocate P. Mohamed Sabah represented the Petitioners, while Senior PP M.C. Ashi represented the Respondents.
Contentions
The Petitioners-accused persons asserted that they were not informed of the grounds of their arrest. The counsel for the Petitioners submitted that the arrest and remand of the accused persons were in gross violation of the constitutional protection contained in Articles 21 and 22(1) of the Constitution of India and Sections 47 and 48 of the BNSS. On the contrary, it was submitted on behalf of the Respondents 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.
Court’s Observations
The High Court in the above regard, noted, “The mode of communication of grounds of arrest is to be in such a manner that the effectiveness of the same deserves to be tested on the touchstone whether the mode of communication subserves the fundamental object mentioned above. … When an arrestee pleads before a Court that grounds of arrest were not communicated, the burden to prove the compliance of Article 22(1) is on the police.”
The Court said that once the arrest is held to be vitiated, the person arrested cannot remain in custody even for a moment and once it is held that arrest is unconstitutional due to violation of Article 22(1), the arrest itself is vitiated.
“Therefore, continued custody of such a person based on orders of remand is also vitiated. … Filing a charge sheet and order of cognizance will not validate an arrest which is per se unconstitutional, being violative of Articles 21 and 22(1) of the Constitution of India”, it added.
The expression “as soon as may be”
The Court further noted that Article 22 mandates that no arrested person shall be detained without being informed of the grounds at the earliest opportunity and 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.
“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. … Arrested person must be well equipped with the information not only about his arrest but the reasons and grounds thereof prior to the production so as to enable him to oppose police custody”, it emphasised.
The Court enunciated that time frame within which the grounds of arrest should be supplied cannot be put into a straight jacket formula and 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. … there can be situations where it may not be possible to supply such grounds to the arrested person at the time of his arrest or immediately. A rigid insistence on informing grounds of arrest immediately thereafter may result in police officer not being able to discharge his duty and responsibility efficiently and effectively”, it observed.
The Court also said that 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 rule of two hours prescribed as lower limit would ensure that counsel has adequate time frame to scrutinize the grounds of arrest and gather material to defend the arrestee, shortened interval may jeopardize such preparation and render the arrest illusory”, it added.
The Court was of the view that the threshold of two hours prescribes the balance between safeguarding the right of arrestee and preserving operational continuity of criminal investigation and arrest will be rendered illegal if the schedule of two hours for supplying grounds is not adhered to.
Requirement of Article 22 is not statute specific
The Court elucidated that the “other grounds for such arrest” referred to in Section 47(1) have nothing to do with the grounds of arrest referred to in Article 22(1) and statutory restrictions do not affect the power of the Court to grant bail when the violation of Articles 21 and 22 of the Constitution is established.
“Obligation to inform grounds of arrest is not mere procedural formality, it flows from personal liberty. … In terms of Section 48 and 47 of BNSS the person making arrest has to inform the arrestee of his right to indicate his relative, friend or such other person for the purpose of giving information with regard to the arrest”, it said.
The Court explained that the person effecting arrest is liable to forthwith inform of such arrest thereafter with reasons and place where such arrested person is being held and the police officer making arrest shall make an entry as to who has been informed of such arrest in a book to be kept in police station, which is in addition to be made aware of grounds of arrest.
“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 grounds can be supplied in writing within reasonable time and in any case two hours prior to production of arrestee in remand proceedings”, it emphasised.
Duty of Magistrate in Remand proceedings
Furthermore, the Court observed 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. … 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”, it noted.
Conclusion
Coming to the facts of the case, the Court remarked that the arrest intimation communicated to a near relative of the Petitioner shows that only the penal Sections were conveyed to him.
“The specific allegations against the petitioner were not communicated to him. Moreover, the grounds and reasons, including the quantity of the contraband allegedly seized, were also not conveyed. So, this Court comes to the conclusion that the requirement of Article 22(1) of the Constitution of India and Sections 47 and 48 of the BNSS have not been satisfied. Therefore, the petitioner’s arrest and the subsequent remand are non est, and he is entitled to be released on bail”, it concluded.
Accordingly, the High Court granted bail to the accused persons, except one.
Cause Title- Vishnu N.P. v. State of Kerala & Anr. (Neutral Citation: 2025:KER:91583)
Appearance:
Petitioner: Advocates P. Mohamed Sabah, Libin Stanley, Saipooja, Sadik Ismayil, R. Gayathri, M. Mahin Hamza, Alwin Joseph, and Benson Ambrose.
Respondents: Senior PP M.C. Ashi
