The Kerala High Court has clarified how criminal courts should deal with cases where an arrest is found to be illegal because mandatory arrest procedures were not followed. Justice A. Badharudeen said that such an accused should be released without granting bail and should be treated as being at the stage before arrest.
The Court issued the clarification while deciding a bail application filed by Jose M.P., the sole accused in a vigilance case registered in Idukki.
Background
The prosecution alleged that Jose M.P., then working as an Assistant Executive Engineer with Thodupuzha Municipality, had demanded ₹1.50 lakh from a complainant in connection with the issuance of a completion certificate for a building. The prosecution further alleged that he accepted ₹75,000 during a trap operation on July 27, 2026.
Jose had remained in custody from July 27. His counsel submitted that he had no previous criminal record and that custodial interrogation had already been completed. The prosecution opposed bail, citing the seriousness of the allegations, but acknowledged that he had no criminal antecedents.
Before considering the bail request, the Court addressed what it described as a “vital issue” concerning the manner in which courts deal with arrests that do not comply with mandatory formalities, including prior notice and communication of grounds of arrest.
The Court explained that when an arrest is legally defective, there is no valid arrest or custody in the eyes of law. Therefore, according to the Court, granting bail in such circumstances does not follow because bail presupposes lawful custody.
“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 Court directed criminal courts in Kerala to release such persons without requiring a bail bond. At the same time, the release order should make clear that the police may arrest the person again after completing the required legal formalities, subject to the Court’s permission.
Coming to Jose’s bail plea, the High Court noted that he had no criminal antecedents, had remained in custody since July 27, and that the investigation had progressed substantially. It held that further custody was not necessary for investigation and allowed the bail application.
The Court directed his release on a ₹1 lakh bond with two solvent sureties and imposed conditions requiring cooperation with the investigation, regular appearance before the Investigating Officer, and restrictions on influencing witnesses or leaving the jurisdiction without permission.
The Registry was also directed to circulate the order to criminal courts across Kerala and ensure compliance with the directions concerning illegally conducted arrests.
