Grounds of Arrest Must Be Effectively Communicated, Not Merely Informed: Kerala HC

The Kerala High Court has reiterated that the constitutional obligation to communicate the grounds of arrest to an accused person flows directly from Articles 21 and 22(1) of the Constitution and cannot be diluted by statutory provisions under the BNSS 2023, holding that failure to effectively convey such grounds renders the arrest, remand and continued custody unconstitutional and non-est in law.

A single judge bench of Justice K. Babu, while deciding a batch of bail applications held that Section 47 of the BNSS cannot be interpreted in a manner that waters down the constitutional mandate under Article 22(1), and that communication of arrest grounds is a substantive safeguard forming part of the “procedure established by law” under Article 21.

The Court ruled that once this safeguard is breached, the custody of the accused cannot be sustained in law.

"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 was observed.

The Court was dealing with four bail applications arising from different crimes, some of which involved allegations under the Narcotic Drugs and Psychotropic Substances Act, 1985.

The common issue raised by the petitioners was that they were either not informed of the grounds of their arrest or were only informed of the penal provisions, without being apprised of the specific allegations and reasons necessitating arrest, in violation of Article 22(1) of the Constitution and Sections 47 and 48 of the BNSS.

Counsel for the petitioners contended that the constitutional right to be informed of the grounds of arrest is not a mere procedural formality but a substantive guarantee intended to enable an arrestee to consult counsel, oppose unlawful detention, and seek appropriate legal remedies. Reliance was placed on a catena of Top Court precedents including Harikisan v. State of Maharashtra, Lallubhai Jogibhai Patel v. Union of India, Pankaj Bansal v. Union of India, Vihaan Kumar v. State of Haryana, Ahmed Mansoor v. State, and Mihir Rajesh Shah v. State of Maharashtra, to submit that oral intimation or vague reference to penal sections does not amount to effective communication of arrest grounds.

The State opposed the bail pleas, arguing that neither Article 22(1) nor Section 47 of the BNSS mandates written communication of grounds of arrest in every case, and that substantial compliance would suffice unless demonstrable prejudice is shown.

The prosecution relied on State of Karnataka v. Sri Darshan to contend that absence of written grounds does not automatically vitiate an arrest.

After examining the constitutional framework, Court traced the jurisprudence on personal liberty from Magna Carta to Articles 21 and 22 of the Constitution, holding that the right to be informed of the grounds of arrest is intrinsic to the protection of life and personal liberty.

The Court emphasised that Article 22(1) strengthens Article 21 by ensuring that an arrested person is not left in the dark about the reasons for deprivation of liberty.

It was categorically held that Section 47 of the BNSS, which requires communication of “full particulars of the offence” or “other grounds of arrest”, cannot be construed as limiting the constitutional content of Article 22(1); If Section 47 were interpreted to permit diluted or incomplete disclosure, it would attract the vice of unconstitutionality, court said.

The bench relied significantly on Mihir Rajesh Shah, which laid down a structured framework for communication of arrest grounds, holding that while immediate written communication may not be possible in every case, the grounds must be supplied within a reasonable time and, in any event, at least two hours prior to production before the Magistrate.

On the burden of proof, the Court held that once an arrestee pleads non-communication of grounds, the entire burden shifts to the arresting agency to demonstrate compliance. It further held that filing of a charge sheet or taking cognizance by the court does not cure an arrest that is unconstitutional at its inception.

As for the application of Section 37 NDPS Act is concerned, Court held that the petitioner, prima facie established a case to qualify and get over the rider under the said provision.

The Court also underscored the duty of Magistrates during remand proceedings, holding that remand courts must independently verify compliance with Article 22(1) and cannot act as a mere post office endorsing police papers. Failure to ensure constitutional compliance, the Court held, would render remand illegal.

Accordingly, three bail applications were allowed and one was dismissed, depending on whether the Court found effective communication of arrest grounds on the facts of each case, reaffirming that constitutional safeguards governing arrest form the bedrock of criminal procedure and cannot be compromised by statutory interpretations.

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

Bench: Justice K. Babu

Date of Judgment: 25.11.2025