JOSE M.P. vs STATE OF KERALA - 2026 Supreme(Online)(Ker) 59748

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2026 Supreme(Online)(Ker) 59748

IN THE HIGH COURT OF KERALA AT ERNAKULAM
A. Badharudeen, J
JOSE M.P. – Appellant
Versus
STATE OF KERALA – Respondent
Bail Appl. 4885/2026

Important Points

If an arrest is illegal due to non-compliance with statutory formalities, the court should set the accused free rather than granting bail, while explicitly permitting the investigating officer to re-arrest the individual upon completion of the required legal formalities.

Subject

Criminal Law - Bail

Act Referred

Bharatiya Nagarik Suraksha Sanhita, 2023: S.483
Prevention of Corruption (Amendment) Act, 2018: S.7(a)
Bharatiya Nyaya Sanhita: S.351(2)

Headnote

(A) Bharatiya Nagarik Suraksha Sanhita, 2023 - Section 483 - Prevention of Corruption (Amendment) Act, 2018 - Sections 7(a) and 7(b) - Bharatiya Nyaya Sanhita - Section 351(2) - Illegal arrest - Non-compliance of formalities of arrest - When an arrest is found to be illegal due to non-compliance with statutory formalities, such as the non-issuance of prior notice or non-furnishing of grounds of arrest, there is no legal arrest or custody in the eye of law - In such instances, granting bail is an incorrect procedure as the accused should be relegated to the stage before the arrest - The proper course is for the court to set the accused person free without granting bail or executing a bail bond, while specifically ordering that such release shall not prevent the police from arresting the accused again upon compliance with the legal formalities. (Para 8)

(B) Bail - Regular bail for public servant - Factors for granting bail - Where the accused has no criminal antecedents, custodial interrogation is complete, and the investigation has achieved significant progress, further detention is not necessary, and bail may be granted subject to conditions ensuring cooperation with the investigation. (Para 11)

Facts of the case:
A public servant working as an Assistant Executive Engineer was accused of demanding a bribe for the issuance of a completion certificate for a newly constructed building. The accused was apprehended during a trap after accepting a portion of the demanded amount. The accused had been in custody since the date of the trap and had no prior criminal records.

Findings of Court:
The court found that the investigation had progressed sufficiently and the accused's lack of criminal history made further detention unnecessary. Additionally, the court noted a widespread procedural error where courts were granting bail in cases of illegal arrest rather than setting the accused free to be legally re-arrested.

Issues:Whether the petitioner was entitled to regular bail and what is the correct legal procedure to be adopted by courts when an accused is produced following an arrest that is illegal for non-compliance with statutory formalities.

Ratio Decidendi:The court reasoned that since custodial interrogation was over and there were no criminal antecedents, the petitioner could be enlarged on bail with conditions to ensure trial availability. Regarding illegal arrests, the court held that because an illegal arrest constitutes no legal custody, the accused must be set free rather than released on bail, with an express permission granted to the investigating officer to re-arrest the person upon completing the necessary legal formalities. (Para 8)

Result: Petition allowed.

Legal Category Hierarchy

Advocates:
For the Appellants/Petitioners: V. John Sebastian Ralph, Vishnu Chandran, Ralph Reti John, Giridhar Krishna Kumar, Geethu T.A., Mary Greeshma, Liz Johny, Krishnapriya Sreekumar, Abhijith P.S, Devika Manoj, Ashuthosh P. Kamath
For the Respondents: Roy Thomas

'C.R'

ORDER

Dated this the 11th day of September, 2026

The bail application has been filed under Section 483 of Bharatiya Nagarik Suraksha Sanhita, 2023, seeking regular bail and the petitioner herein is the sole accused in Crime No. 12/2026 registered by VACB, Idukki.

Heard the learned counsel for the petitioner as well as the learned Public Prosecutor appearing for State of Keralam; in detail.

Here the prosecution alleges commission of offences punishable under Sections 7(a), 7(b) of the Prevention of Corruption (Amendment) Act, 2018 and under Section 351(2) of the Bharatiya Nyaya Sanhita, by the petitioner, who is the sole accused in this crime.

The prosecution case is that the petitioner while working as Assistant Executive Engineer, Thodupuzha Municipality and as such being a public servant demand of Rs.1,50,000/- as illegal gratification from the complainant for the issuance of completion certificate in respect of the newly constructed building of Ayurvedic Hospital, Kalimadam, functioning in Chungam Kara, Thodupuzha, owned by him. The further case of the prosecution is that in continuation of the said demand as on 27.07.2026, the petitioner/accused demanded and accepted Rs.75,000/- as part of trap and was nabbed by the Dy.SP, red handed on the date of trap.

The learned counsel for the petitioner submitted that the petitioner is innocent and has been in custody from 27.07.2026. It is also pointed out that the petitioner has no other criminal antecedents and his custodial interrogation also is over.

The learned Public Prosecutor though opposed bail pointing out the seriousness of the offences, he has fairly conceded that the petitioner has no criminal antecedents and he was arrested on 27.07.2026.

On perusal of the prosecution allegations along with the report, the Investigating Officer stated as under:

“It is humbly submitted that the investigation of this case is in its initial stages. A detailed investigation is required to ascertain whether the accused have engaged in other unlawful activities involving other Thodupuzha Municipal Officials. More witnesses need to be questioned, related documents need to be seized, and details regarding the properties of the accused and their relatives need to be collected.

It is respectfully submitted that after registering this case, another complaint received before the Vigilance Idukki unit alleging that the petitioner accepted illegal gratification from different persons.”

Before adverting the question as to whether bail is liable to be granted to the petitioner, this Court is inclined to address a vital issue which would require urgent consideration. It is noticed in abundance that many accused persons arrested and produced before the courts were set at free for non-compliance of the formalities of arrest. In some cases, the courts are granting bail on finding the arrest as illegal for non-compliance of the formalities of arrest, particularly, non issuance of prior notice to the accused and non-furnishing of grounds of arrest to the accused. In this connection, it is held that when the arrest is found to be illegal for non-compliance of the formalities of arrest, there is no arrest or custody in the eye of law and thereby the accused would be relegated to the stage before his arrest. The rationale is that a person without a legal arrest is either in the Police custody or in the custody of the court, when produced before the court to release him on bail. Then grant of bail doesn't arise. Therefore, 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. Then the course open for the court is to set the accused person free at the stage before his arrest. While doing so, in the same order itself the court freeing the accused, produced before the court, shall pass an order to the effect that the release of the accused for non-compliance of the formalities of the