Know your rights: Kerala High Court explains when arrest becomes illegal

Justice Kauser Edappagath, referring to various Supreme Court judgments, set out the principles governing the legal procedure of arrest as follows:

1. The person who is getting arrested (arrestee) must be informed of the grounds of arrest in all offences under all statutes, including offences under the Indian Penal Code /Bhartiya Nyaya Sanhita.
2. The grounds of arrest must be communicated in writing to the arrestee in the language the person understands. 
3. In cases where the arresting officer is unable to communicate the grounds of arrest in writing immediately after the arrest, they may initially be communicated orally.
4. The grounds must then be communicated in writing within a reasonable time and, in any case, at least two hours before the production of the arrestee before the Magistrate for remand proceedings.
5. In Narcotic Drugs and Psychotropic Substances (NDPS) Act cases, which involve illegal drugs and substances, specification of the quantity of the contraband seized is mandatory for effective communication of the grounds of arrest.
6. In case of non-compliance with the requirement of communicating the grounds of arrest, the arrest and the subsequent remand would be rendered illegal, and the arrestee would be entitled to be released.
7. The burden is on the police to establish that the grounds of arrest were communicated properly.
8. The filing of a chargesheet and cognisance of the order cannot validate an unconstitutional arrest.

‘Safeguard not mere formality’

Senior Advocate Vikas Pahwa mentions that the Supreme Court of India has repeatedly emphasised that this safeguard is not a mere formality but a substantive protection against arbitrary arrest.

Senior Advocate Vikas Pahwa mentions that the requirement that an arrested person must be informed of the grounds of arrest flows directly from the constitutional guarantee under the Constitution. (Image is enhanced using AI)

“In recent decisions, including the judgment in Arvind Kejriwal v. Directorate of Enforcement and subsequent rulings, the court has clarified that the grounds of arrest must ordinarily be furnished in writing to the arrested person. This ensures transparency and enables the accused to effectively challenge the arrest or oppose the request for police or judicial custody,” Pahwa added.

He also pointed out that the court has underscored that the information should be communicated in sufficient time before the remand proceedings, and ideally shared with the family or legal representative of the arrested person. 

“This is crucial because remand proceedings before the magistrate are often the first judicial scrutiny of the arrest, and the accused must have a fair opportunity to respond to the allegations,” says Pahwa. 

Former judge and advocate Bharat Chugh, on the other hand, said that the arrest is not meant to be a routine step in every investigation and the police must have a valid legal reason and genuine necessity to take someone into custody.

Advocate Bharat Chugh said that generally, a woman cannot be arrested at night except in exceptional circumstances with prior approval from a magistrate.

“In law, an arrest becomes illegal when the basic safeguards protecting personal liberty are ignored,” Chugh mentioned, pointing out that a person who is arrested must be informed of the grounds of arrest in writing within a reasonable time, and at least two hours before the person is produced before a magistrate for remand.

He also stated that in many cases, the law requires the police to first issue a notice asking the person to appear, rather than immediately arresting them.

“If these safeguards are not followed — for example, if there is no legal authority to arrest, the grounds of arrest are not disclosed, or the arrest is unnecessary — the arrest can be treated as illegal,” Chugh said. 

Chugh also added that the law provides special protections for women. “Generally, a woman cannot be arrested at night except in exceptional circumstances with prior approval from a magistrate, and the arrest must ordinarily be carried out by a woman police officer. Ignoring these safeguards can also render the arrest unlawful,” he added. 

‘No communication of grounds of arrest’

The Kerala High Court was hearing a bail plea of the stepfather of a girl who was accused of sexually assaulting his minor daughter in a case registered under the Bharatiya Nyaya Sanhita and the Protection of Children from Sexual Offences (POCSO) Act.

Counsel for the accused, advocate Shajin S. Hameed, argued that his client had not been informed of the grounds of arrest and therefore the arrest was illegal, making him entitled to bail.

The stepfather was arrested on July 8, 2025, and has been in judicial custody since then.

Hameed emphasised that the requirement of informing the arrested person of the grounds of arrest is mandatory under Article 22(1) of the Constitution. 

The court examined the issue of the absence of proper communication of the grounds of arrest and observed that informing an arrested person of the grounds of arrest is not a mere “formality” but a mandatory constitutional and statutory requirement.

“Non-compliance 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,” the high court said while granting the man bail on March 9.