Informing A Person Regarding Grounds of Arrest Is Mandatory Constitutional Requirement: Kerala HC
The Kerala High Court, recently, held that informing a person about the grounds of their arrest is a mandatory constitutional and statutory requirement. The court observed that failure to comply with this obligation renders the arrest illegal and amounts to a violation of fundamental rights guaranteed under the Constitution of India.
The bench of Justice Kauser Edappagath held, “Section 47 clearly states that every police officer or other person arresting any person without a warrant shall forthwith communicate to him full particulars of the offence for which he is arrested or other grounds for such arrest”.
The judgment was delivered while disposing of two writ petitions that raised a common legal issue concerning the consequences of non-compliance with Article 22(1) of the Constitution and Section 47(1) of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS).
In the first petition, the petitioner was the father of an accused who was arrested under the Narcotic Drugs and Psychotropic Substances Act, 1985. The accused was arrested on 2 October 2024 and remained in judicial custody following the dismissal of his bail application.
In the second petition, the petitioner was the mother of the second accused, who faced charges under the Indian Penal Code and the Banning of Unregulated Deposit Schemes Act, 2019. She was arrested on 6 February 2025, and her bail application was also rejected.
The petitioners, represented by Senior Advocate P. Sreekumar, contended that the arrests were carried out without informing the accused of the grounds for arrest, thereby violating their fundamental rights under Article 22(1). Senior Advocate Sreekumar sought a declaration that the arrests were illegal and requested the immediate release of the accused. Senior Advocate Sreekumar argued that the obligation to inform an arrested person of the grounds for arrest is not a mere formality but a constitutional mandate.
Special Government Prosecutor P. Narayanan, for the State, submitted that all legal formalities under Chapter V of the BNSS had been complied with during the arrests and that the trial courts had already considered and dismissed the bail applications.
After examining the materials on record, the court noted that neither the written grounds of arrest were furnished to the accused nor any evidence was produced to prove that such grounds were orally communicated. The court reiterated that when non-compliance with Article 22(1) is alleged, the burden lies on the arresting officer to establish that the arrested person was duly informed.
“There is no requirement to communicate the grounds of arrest in writing, there is no harm if the grounds of arrest are communicated in writing and when arrested accused alleges non-compliance with the requirements of Article 22(1) of the Constitution, the burden will always be on the Investigating Officer/Agency to prove compliance with the requirements of Article 22(1)”, the court emphasized.
The court concluded that the arrests in both cases were in violation of Article 22(1) of the Constitution and Section 47 of the BNSS.
The court directed the respective trial courts to issue release orders to the jail authorities for the immediate release of the accused. However, it clarified that this judgment would not prevent the investigating agencies from re-arresting the individuals in accordance with the law. The writ petitions were accordingly disposed of.
For Petitioner: Senior Advocate Sri. P. Sreekumar with 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.
For Respondent: Special Government Prosecutor P. Narayanan with Additional Public Prosecutor Sajju S.
Case Title: Babu M v State of Kerala (2025:KER:30501)