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Can lead to ? rules on Jose M.P.
Justice A. Badharudeen of the has issued a crucial clarification on the correct procedure when an arrest is found to be illegal due to . The Court held that such an accused must be released without bail and relegated to the , while permitting the police to re-arrest after following due process.
The ruling came in a bail application filed by Jose M.P., the sole accused in a vigilance case registered by the . However, before granting bail, the Court took up a "vital issue" that it observed was being mishandled by many criminal courts across the state.
When arrest is illegal, bail is not the answer
The Court noted that numerous accused persons arrested and produced before courts were being set free for non-compliance of arrest formalities, such as issuance of and furnishing of . In many cases, courts were granting bail upon finding the arrest illegal.
Justice Badharudeen firmly rejected this approach. He explained that when an arrest is illegal, there is no valid arrest or custody in the eyes of the law.
"Granting bail to an accused produced before the court, finding the arrest as illegal, would not get support from statutory provisions and the courts should not follow the said wrong procedure,"
the Court stated.
Instead, the correct course is to set the accused free at the stage before his arrest. The release order must simultaneously clarify that the police may arrest the accused again on the same day after complying with the required formalities. The Court directed all criminal courts in Kerala to follow this procedure without fail, referencing its earlier directions in .
The case of the engineer
Jose M.P., a 56-year-old Assistant Executive Engineer with , was arrested on , on allegations that he demanded Rs.1,50,000 as for issuing a completion certificate for an Ayurvedic hospital building. He was caught red-handed accepting Rs.75,000 during a .
Charges were framed under , and .
The petitioner's counsel argued that Jose had no , had been in custody since July 27, and that was over. The prosecution opposed bail citing the seriousness of the offence and the need for further investigation into possible links with other municipal officials, but conceded that the accused had no prior criminal record.
Key observations
The Court made several significant observations on the handling of illegal arrests:
"When the arrest is found to be illegal for non-compliance of the formalities of arrest, there is
and thereby the accused would be relegated to the stage before his arrest."
"Granting bail to an accused produced before the court, finding the arrest as illegal, would not get support from statutory provisions and the courts should not follow the said wrong procedure."
"The course open for the court is to set the accused person free at the stage before his arrest... [and] pass an order to the effect that the release of the accused for non-compliance of the formalities of the arrest shall not be a rider for the arrest of the accused so released by the Police on complying the formalities."
The Court also expressed concern that some investigating officers might be purposely exploiting non-compliance to free accused persons with ulterior motives.
Bail granted with conditions
After addressing the procedural issue, the Court considered the merits of Jose's bail plea. Noting that he had no , had been in custody for over a month, and that the investigation had progressed substantially, the Court concluded that further custody was unnecessary.
The petition was allowed, and Jose M.P. was enlarged on bail on executing a bond of Rs.1,00,000 with two . Conditions include: - Not intimidating witnesses or tampering with evidence - Appearing before the Investigating Officer on all Mondays for three months - Not leaving the jurisdiction of the jurisdictional court without permission - Not involving in any other offence during the currency of bail
The Registry was directed to forward a copy of the order to all criminal courts in the state for compliance with the directions on handling illegal arrests.
