[Cites 17, Cited by 0]
Kerala High Court
Nishad vs State Of Kerala on 25 March, 2026
Author: Kauser Edappagath
Bench: Kauser Edappagath
B.A.No.1397/2026
1
2026:KER:26229
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE DR. JUSTICE KAUSER EDAPPAGATH
WEDNESDAY, THE 25TH DAY OF MARCH 2026 / 4TH CHAITHRA, 1948
BAIL APPL. NO. 1397 OF 2026
CRIME NO.122/2025 OF Anthikad Police Station, Thrissur
PETITIONER:
NISHAD, AGED 30 YEARS
S/O ABDUL RAZAK , PULIYAPURATH HOUSE, CHETTUPUZHA ,
THRISSUR, PIN - 680012
BY ADVS. SRI.JITHIN BABU A
SHRI.ARUN SAMUEL
SHRI.ANOOD JALAL K.J.
SMT.DONA MATHEW
RESPONDENT:
STATE OF KERALA,
REPRESENTED BY BY THE PUBLIC PROSECUTOR, HIGH COURT
OF KERALA, ERNAKULAM, PIN - 682031
ADV SRI. NOUSHAD K A SR. PP
THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON
25.03.2026, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
B.A.No.1397/2026
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ORDER
This application is filed under Section 483 of the Bharatiya
Nagarik Suraksha Sanhita, 2023 (for short, BNSS), seeking regular
bail.
2. The applicant is the sole accused in Crime
No.122/2025 of Anthikad Police Station, Thrissur District. The
offences alleged are punishable under Sections 65(2), 64(2)(f),
64(2)(m) and 351 of the Bharatiya Nyaya Sanhita, 2023, Sections
3(a)(b), read with 4(2), 5(l), (m), (n) read with 6(1), 7 read with 8,
11(vi) read with 12 of the Protection of Children from Sexual
Offences Act, 2012 and Sections 3(1)(w)(i) and 3(2)(v) of the
Scheduled Castes and Scheduled Tribes (Prevention of Atrocities)
Act, 1989.
3. The prosecution case, in short, is that the
applicant, who is the step father of the victim girl aged 6 years, on
19.01.2025 at her house in Manalur Palazhi and on some other
days, in her house at Chettuva, subjected the survivor to sexual
atrocity as well as showed nude videos to the child in his mobile
phone and thereby committed the offences. It is further alleged
that the applicant had knowledge that the victim and her mother
belonged to a Scheduled Caste.
4. I have heard Sri. Jithin Babu A, the learned
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counsel for the applicant and Sri. K.A. Noushad, the learned Senior
Public Prosecutor. Perused the case diary.
5. The learned counsel appearing for the applicant
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 Section 47 of the BNSS and inasmuch as
the applicant was not furnished with the grounds of arrest, his
arrest was illegal and is liable to be released on bail. On the other
hand, the learned Senior 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 applicant. It is further
submitted that the alleged incident occurred as part of the
intentional criminal acts of the applicant and hence he is not
entitled to bail at this stage.
6. The applicant was arrested on 25.1.2025 and
since then he is in judicial custody.
7. Though prima facie there are materials on record
to connect the applicant with the crime, since the applicant has
raised a question of absence of communication of the grounds of
his arrest, let me consider the same.
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 of BNSS
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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 of the Constitution.
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 v. Union of India and
Others [(2024) 7 SCC 576], 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
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exception. In Prabir Purkayastha v. State (NCT of Delhi)
(2024) 8 SCC 254], 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 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. In Vihaan Kumar v. State of Haryana and
Others (2025 SCC OnLine SC 269], 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
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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 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. In Kasireddy Upender Reddy v. State of
Andhra Pradesh (2025 SCC OnLine SC 1228), the Supreme Court
held that reading out the grounds of arrest stated in the arrest
warrant would tantamount to compliance of Art.22 of the
Constitution. It was further held that when an acused person is
arrested on warrant and it contains the reason for arrest, there is
no requirement to furnish the grounds for arrest separately and a
reading of the warrant to him itself is sufficient compliance with
the requirement of informing the grounds of his arrest. In State of
Karnataka v. Sri Darshan (2025 SCC OnLine SC 1702), it was
held that neither the Constitution nor the relevant statute
prescribes a specific form or insists upon a written communication
in every case. Substantial compliance of the same is sufficient
unless demonstrable prejudice is shown. It was further held that
individualised grounds are not an inflexible requirement post
Bansal and absence of written grounds does not ipso facto render
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the arrest illegal unless it results in demonstrable prejudice or
denial of an opportunity to defend. However, in Ahmed Mansoor
v. State (2025 SCC OnLine SC 2650), another two Judge Bench of
the Supreme Court distinguished the principles declared in Sri
Darshan (supra) and observed that in Sri Darshan (supra), the
facts governing are quite different in the sense that it was a case
dealing with the cancellation of bail where the chargesheet had
been filed and the grounds of detention were served immediately.
Recently, in Mihir Rajesh Shah v. State of Maharashtra and
Another (2025 SCC OnLine SC 2356), the three Judge Bench of the
Supreme Court held that grounds of arrest must be informed to the
arrested person in each and every case without exception and the
mode of communication of such grounds must be in writing in the
language he understands. It was further held that non supply of
grounds of arrest in writing to the arrestee prior to or immediately
after arrest would not vitiate such arrest provided said grounds are
supplied in writing within a reasonable time and in any case two
hours prior to the production of arrestee before the Magistrate.
12. A Single Bench of this Court in Yazin S. v. State
of Kerala (2025 KHC OnLine 2383) and in Rayees R.M. v. State
of Kerala (2025 KHC 2086) held that in NDPS cases, since the
quantity of contraband determines whether the offence is bailable
or non bailable, specification of quantity is mandatory for effective
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communication of grounds. It was further held that burden is on
the police to establish proper communication of the arrest. In
Vishnu N.P. v. State of Kerala (2025 KHC OnLine 1262),
another Single Judge of this Court relying on all the decisions of the
Supreme Court mentioned above specifically observed that the
arrest intimation must mention not only the penal section but also
the quantity of contraband allegedly seized.
13. The following principles of law emerge from the
above mentioned binding precedents.
(i) The constitutional mandate of informing the arrestee
the grounds of arrest is mandatory in all offences under all statutes
including offences under IPC/BNS.
(ii) The grounds of arrest must be communicated in
writing to the arrestee in the language he understands.
(iii) In cases where the arresting officer/person is unable
to communicate the grounds of arrest in writing soon after arrest,
it be so done orally. The said grounds be communicated in writing
within a reasonable time and in any case at least two hours prior
to the production of the arrestee for the remand proceedings
before the Magistrate.
(iv) In NDPS cases, specification of quantity of the
contraband seized is mandatory for effective communication of
grounds of arrest.
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(v) In case of non compliance of the above, the
arrest and the subsequent remand would be rendered illegal and
the arrestee should be set free forthwith.
(vi) The burden is on the police to establish the
proper communication of grounds of arrest.
(vii) The filing of charge sheet and cognizance of the
order cannot validate unconstitutional arrest.
14. I went through the case diary. It is noticed that
the grounds of arrest were not communicated to the applicant or
his relatives in terms of Sections 47 and 48 of the BNSS and Article
22(1) of the Constitution of India. Hence, I hold that the
requirement of Article 22(1) of the Constitution and Section 47 of
BNSS have not been satisfied. Therefore, applicant's arrest and his
subsequent remand are nonest and he is entitled to be released on
bail.
In the result, the application is allowed on the following
conditions: -
(i) The applicant shall be released on bail on
executing a bond for Rs.1,00,000/- (Rupees One lakh only) with
two solvent sureties for the like sum each to the satisfaction of the
jurisdictional Magistrate/Court.
(ii) The applicant shall fully co-operate with the
investigation.
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(iii) The applicant shall appear before the
investigating officer between 10.00 a.m and 11.00 a.m. every
Saturday until further orders. He shall also appear before the
investigating officer as and when required.
(iv) The applicant shall not commit any offence of a
like nature while on bail.
(v) The applicant shall not attempt to contact any of
the prosecution witnesses, directly or through any other person, or
in any other way try to tamper with the evidence or influence any
witnesses or other persons related to the investigation.
(vi) The applicant shall not leave the State of Kerala
without the permission of the trial Court.
(vii) The application, if any, for deletion/modification of the
bail conditions or cancellation of bail on the grounds of violating
the bail conditions shall be filed at the jurisdictional court.
Sd/-
DR. KAUSER EDAPPAGATH
JUDGE
kp
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APPENDIX OF BAIL APPL. NO. 1397 OF 2026
PETITIONER ANNEXURES
Annexure 1 A TRUE COPY OF THE FIR IN CR.NO.122/25 OF
ANTHIKAD POLICE STATION, THRISSUR.
Annexure 2 A TRUE COPY OF THE ORDER 19/05/2025 IN
CRL. M.P. NO. 2155/2025 BY I ADDITIONAL
DISTRICT COURT, THRISSUR.
ANNEXURE 3 A TRUE COPY OF HTE REMAND REPORT ALONG
WITH OTHER DOCUMENTS SUBMITTED BY THE
INVESTIGATING OFFICER IN CONNECTION WITH
CRIME NO.122/25 OF ANTHIKAD POLICE
STATION, THRISSUR.
Annexure 4 A TRUE COPY OF THE ORDER OF THIS HON'BLE
COURT IN BA 12453/2025 DATED 29/10/2025.
