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IN THE HIGH COURT OF KERALA AT ERNAKULAM
Kauser Edappagath, J
Babu M S/o Dharman – Appellant
Versus
State Of Kerala – Respondent
WP(CRL.) NO. 240 OF 2025
(A) Constitution of India - Article 22(1) - Bharatiya Nagarik Suraksha Sanhita, 2023 - Section 47(1) - Non-compliance with requirement of informing grounds of arrest - Arrests of accused were held illegal due to failure to furnish grounds of arrest as mandated by Article 22(1) - The right to be informed of grounds of arrest is a fundamental right and non-compliance vitiates the arrest. (Paras 8, 10, 12)
(B) Fundamental Rights - The requirement of informing the arrested person of the grounds of arrest is mandatory and not a mere formality - Violation of this right renders the arrest illegal. (Paras 9, 10)
Facts of the case:
The petitioners are parents of the accused arrested in two separate crimes, alleging that the arrests were made without informing the grounds, thus violating their rights under Article 22(1). The petitioners sought to declare the arrests illegal and requested their release.
Findings of Court:
The court found that the arrests were in violation of Article 22(1) and Section 47 of the BNSS, leading to the conclusion that the accused must be released from custody.
Issues: The main issue was whether the failure to communicate the grounds of arrest rendered the arrests illegal.
Ratio Decidendi: The court ruled that the requirement to inform the arrested person of the grounds of arrest is a mandatory constitutional requirement, and non-compliance vitiates the arrest.
Result: Writ petitions disposed of; both accused to be released forthwith.
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 CB Crime No.715/2024 of CBCID, Kollam. The offences alleged are punishable under Section s 420 , 409 and 120B read with Section 34 of the Indian Penal Code, 1860 and Section s 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, 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 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 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.
9. The question whether failure to communicate writt
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