Kerala High Court
J Vijayalakshmi vs Deputy Superintendent Of Police on 7 April, 2025
Author: Kauser Edappagath
Bench: Kauser Edappagath
W.P.(CRL) NOS.240 AND 247 OF 2025
2025:KER:30501
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE DR. JUSTICE KAUSER EDAPPAGATH
MONDAY, THE 7TH DAY OF APRIL 2025 / 17TH CHAITHRA, 1947
WP(CRL.) NO. 240 OF 2025
CRIME NO.1498/2024 OF TIRUR POLICE STATION, MALAPPURAM
PETITIONER:
BABU M
AGED 59 YEARS
S/O DHARMAN, MACHALIL, MANGATTIRI,
TALAKKAD, MALAPPURAM, KERALA, PIN - 676105
BY ADVS.
SRI. P. SREEKUMAR, SENIOR COUNSEL
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.
RESPONDENTS:
1 STATE OF KERALA
REPRESENTED BY THE SECRETARY TO GOVERNMENT,
HOME DEPARTMENT, SECRETARIAT,
THIRUVANANTHAPURAM DISTRICT, PIN - 695001
2 STATION HOUSE OFFICER
TIRUR POLICE STATION, MALAPPURAM DISTRICT.,
W.P.(CRL) NOS.240 AND 247 OF 2025
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2
PIN - 676101
BY ADVS.
SHRI.P.NARAYANAN, SPL. G.P. TO DGP AND ADDL. P.P.
SHRI.SAJJU.S., SENIOR G.P.
THIS WRIT PETITION (CRIMINAL) HAVING COME UP FOR
ADMISSION ON 07.04.2025, ALONG WITH WP(CRL.).247/2025, THE
COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
W.P.(CRL) NOS.240 AND 247 OF 2025
2025:KER:30501
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE DR. JUSTICE KAUSER EDAPPAGATH
MONDAY, THE 7TH DAY OF APRIL 2025 / 17TH CHAITHRA, 1947
WP(CRL.) NO. 247 OF 2025
CRIME NO.447/2024 OF KOIPURAM POLICE STATION,
PATHANAMTHITTA
AGAINST THE ORDER DATED 17.02.2025 IN CMP NO.715 OF 2025 OF
ADDITIONAL DISTRICT COURT & SESSIONS COURT - III,
PATHANAMTHITTA / III ADDITIONAL MACT
PETITIONER:
J VIJAYALAKSHMI
AGED 80 YEARS
M/O. SINDHU NAIR, CHEGAZAHVALIL,
PULLANPADA, PALLIPADU P.O., VTC PALLIPPAD,
ALAPPUZHA DISTRICT., PIN - 690512
BY ADVS.
BINNY THOMAS
SUNEETHI S.
HELEN P.A.
ATHUL ROY
INDRAJITH DILEEP
AMALA ANNA THOTTUPURAM
ABHILASH T.
RESPONDENTS:
1 DEPUTY SUPERINTENDENT OF POLICE
CRIME BRANCH, CRIME BRANCH POLICE STATION,
KOLLAM, PIN - 691002
W.P.(CRL) NOS.240 AND 247 OF 2025
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2 STATE OF KERALA
REPRESENTED BY PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, PIN - 682031
BY ADVS.
SHRI.P.NARAYANAN, SPL. G.P. TO DGP AND ADDL. P.P.
THIS WRIT PETITION (CRIMINAL) HAVING COME UP FOR
ADMISSION ON 07.04.2025, ALONG WITH WP(Crl.).240/2025, THE
COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
W.P.(CRL) NOS.240 AND 247 OF 2025
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"C.R."
JUDGMENT
The common issue in these writ petitions concerns the
consequence of non-compliance with the requirement of
informing the grounds of arrest under Article 22(1) of the
Constitution of India and Section 47(1) of the Bharatiya
Nagarik Suraksha Sanhita, 2023 (BNSS).
2. The petitioner in WP(Crl). No.240/2025 is
the father of the accused in Crime No.1498/2024 of Tirur
Police Station, Malappuram. The offence alleged is
punishable under Section 22(c) of the Narcotic Drugs and
Psychotropic Substances Act, 1985. The petitioner's son was
arrested on 02.10.2024. Though he moved a bail
application before the trial Court, it was dismissed. He is, at
present, in judicial custody.
3. The petitioner in WP(Crl). No. 247/2025 is the
mother of the 2nd accused in Crime No.447/2024 of
Koipuram Police Station, Pathanamthitta. The crime has
been transferred to the Crime Branch and re-registered as
W.P.(CRL) NOS.240 AND 247 OF 2025
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CB Crime No.715/2024 of CBCID, Kollam. The offences
alleged are punishable under Sections 420, 409 and 120B
read with Section 34 of the Indian Penal Code, 1860 and
Sections 3, 21, 5 and 23 of the Banning of Unregulated
Deposit Schemes Act, 2019 (BUDS Act'). The petitioner's
daughter was arrested on 06.02.2025. Though she moved a
bail application before the Designated Court to try the
offences under the BUDS Act, it was dismissed. She is, at
present, in judicial custody.
4. According to the petitioners, the accused in both
crimes were arrested without furnishing the grounds of
arrest and therefore, their arrest was in violation of Article
22(1) of the Constitution of India. It is in these
circumstances; the petitioners have approached this Court
to declare the arrest of the accused in both cases without
serving the grounds of arrest as illegal and to order their
release from custody forthwith.
5. I have heard Sri. P. Sreekumar, the learned
Senior Counsel for the petitioner in WP(Crl) No.247/2025,
W.P.(CRL) NOS.240 AND 247 OF 2025
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Sri. S. Rajeev, the learned counsel for the petitioner in
WP(Crl) No.240/2025, and Sri. P. Narayanan, the learned
Special Public Prosecutor.
6. The counsel appearing for the petitioners
submitted that the requirement of informing the arrested
person of the grounds of arrest is mandatory under Article
22(1) of the Constitution of India and inasmuch as the
accused were not furnished with the grounds of arrest, their
arrests were illegal and are liable to be set aside. Reliance
was placed on the following decisions of the Supreme Court
in support of their arguments: Pankaj Bansal v. Union of
India and Others [(2024) 7 SCC 576], Prabir
Purkayastha v. State (NCT of Delhi) [(2024) 8 SCC 254]
and Vihaan Kumar v. State of Haryana and Others
[2025 SCC OnLine SC 269].
7. On the other hand, the learned Public Prosecutor
submitted 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
W.P.(CRL) NOS.240 AND 247 OF 2025
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dismissed the bail applications filed by the accused.
8. Chapter V of BNSS, 2023 deals with the
arrest of persons. Sub-section (1) of Section 35 of BNSS
lists cases when police may arrest a person without a
warrant. 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.
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.
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.
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9. The question whether failure to
communicate written grounds of arrest would render the
arrest illegal, necessitating the release of the accused, is no
longer res integra. The Supreme Court in Pankaj Bansal
(supra), while dealing with Section 19 of the Prevention of
Money Laundering Act, 2002, has held 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.
It was further held that a copy of written grounds of arrest
should be furnished to the arrested person as a matter of
course and without exception. In Prabir Purkayastha
(supra), while dealing with the offences under the Unlawful
Activities Prevention Act,1967 (for short, 'UAPA'), it was held
that any person arrested for an allegation of commission of
offences under the provisions of UAPA or for that matter any
other offence(s) has a fundamental and a statutory right to
be informed about the grounds of arrest in writing and a
copy of such written grounds of arrest has to be furnished to
the arrested person as a matter of course and without
W.P.(CRL) NOS.240 AND 247 OF 2025
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exception at the earliest. It was observed that the right to
be informed about the grounds of arrest flows from Article
22(1) of the Constitution of India, and any infringement of
this fundamental right would vitiate the process of arrest
and remand.
10. Recently, in Vihaan Kumar (supra), the
Supreme Court, while dealing with the offences under IPC,
reiterated that the requirement of informing the person
arrested of the grounds of arrest is not a formality but a
mandatory constitutional requirement. It was further held
that if the grounds of arrest are not informed, as soon as
may be after the arrest, it would amount to the violation of
the fundamental right of the arrestee guaranteed under
Article 22(1) of the Constitution, and the arrest will be
rendered illegal. It was also observed in the said judgment
that although 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
W.P.(CRL) NOS.240 AND 247 OF 2025
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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).
11. The petitioners in both cases have
specifically taken up a plea that the grounds of arrest were
not furnished to the accused. In the statement filed by the
2nd respondent in WP(Crl) No.240/2025, it was simply stated
that the accused was informed of the charges levelled
against him and the grounds of arrest. In the statement filed
by the 1st respondent in WP(Crl) No.247/2025, it was simply
stated that, at the time of arrest, all legal formalities were
duly complied with in accordance with Chapter V of the
BNSS and the grounds of arrest were communicated to the
accused. However, there is absolutely no material to
substantiate the said plea in both cases. 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
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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.
12. For all these reasons, I hold that the arrest
of the accused in Crime No.1498/2024 of Tirur Police
Station, Malappuram and the arrest of the 2 nd accused in
Crime No.447/2024 of Koipuram Police Station,
Pathanamthitta, re-registered as CB Crime No.715/2024 of
CBCID, Kollam were in violation of Article 22(1) of the
Constitution of India and Section 47 of the BNSS. 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 [See Vihaan
Kumar (supra)]. Hence both the accused have to be
released forthwith.
13. For the aforementioned reasons, the respective
trial court is directed to issue a release order to the jail
W.P.(CRL) NOS.240 AND 247 OF 2025
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authorities to release the accused in Crime No.1498/2024 of
Tirur Police Station, Malappuram, and the second accused in
Crime No.447/2024 of Koipuram Police Station,
Pathanamthitta, re-registered as CB Crime No.715/2024 of
CBCID, Kollam, forthwith. However, it is made clear that this
judgment will not prevent the investigating agency from
arresting the accused again in accordance with the law.
The writ petitions are disposed of as above.
Sd/-
DR. KAUSER EDAPPAGATH
JUDGE
BR
W.P.(CRL) NOS.240 AND 247 OF 2025
2025:KER:30501
APPENDIX OF WP(CRL.) 240/2025
PETITIONER'S EXHIBITS
Exhibit P1 TRUE COPY OF THE JUDGEMENT DATED
08.01.2025 OF THE HIGH COURT OF KERALA
IN B.A NO. 10923 OF 2024
Exhibit P2 TRUE COPY OF THE JUDGMENT DATED
25.01.2025 IN CMP NO. 77/2025 BEFORE THE
HON'BLE SPECIAL COURT FOR SC/ST (POA)
ACT & NDPS ACT CASES
W.P.(CRL) NOS.240 AND 247 OF 2025
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APPENDIX OF WP(CRL.) 247/2025
PETITIONER'S EXHIBITS
Exhibit P1 A TRUE COPY OF THE FIR IN CRIME NO 447 OF
KOIPURAM POLICE STATION, PATHANAMTHITTA
DATED 10.03.2024
Exhibit P2 A TRUE COPY OF THE FIR IN CBCID CRIME NO
715 OF 2024 OF THE CBCID KOLLAM DATED
22.06.2024
Exhibit P3 A TRUE COPY OF THE LETTER DATED 6.2.2020
ISSUED BY THE RESERVE BANK OF INDIA
Exhibit P4 A TRUE COPY OF THE CERTIFICATE DATED
20.4.2020 ISSUED BY THE REGISTRAR OF
COMPANIES
Exhibit P5 A TRUE COPY OF THE MASTER DATA RELATING TO
THE DIRECTORSHIP OF THE PETITIONER'S
DAUGHTER
Exhibit P6 A TRUE COPY OF THE REPORT OF THE DIRECTOR
OF PULLAD FINANCE PVT LTD FOR THE
FINANCIAL YEAR ENDING WITH 31.3.2022
Exhibit P7 A TRUE COY OF THE NOTICE ISSUED BY THE
MANAGEMENT OF G AND G FINANCIERS
Exhibit P8 A TRUE COPY OF THE ARGUMENT NOTES FILED
BEFORE THE ADDITIONAL SESSIONS COURT NO
III, PATHANAMTHITTA IN CRL M P NO 715 OF
Exhibit P9 A TRUE COPY OF THE ORDER PASSED IN CRL M P
NO 715 OF 2025 BY THE ADDITIONAL SESSIONS
COURT NO III, PATHANAMTHITTA
Exhibit P10 A TRUE COPY OF THE REMAND REPORT SUBMITTED
IN THE ADDITIONAL SESSIONS COURT NO III,
PATHANAMTHITTA DATED 07.02.2025
