By Sujit Bhar
An arrest is among the most serious powers available to the State. It takes away, at least temporarily, an individual’s liberty and places that person under the control of the police and, subsequently, the judiciary. Precisely because the power is so serious, the law does not leave an arrest to the discretion of the arresting officer alone. There are procedures to be followed, safeguards to be observed and formalities to be completed.
A recent order of the Kerala High Court has brought an important aspect of this process into sharp focus: what happens when a person is brought before a court as an “arrested” accused, but the arrest itself has not been legally completed?
The question may sound technical. It is anything but technical. An arrest that does not comply with mandatory legal requirements can affect the very foundation on which police custody and judicial remand rest. The High Court has now issued directions intended to ensure that such procedural failures do not become a routine feature of the criminal justice system.
Justice A Badharudeen directed all criminal courts in the district judiciary in Kerala to strictly comply with the formalities of arrest before remanding an accused. The direction followed the Court’s observation that in a number of cases accused persons had been arrested and produced before courts, but walked free, because the mandatory formalities of arrest had not been complied with.
The High Court was particularly concerned with situations in which an accused had not been given prior notice where such notice was required, or had not been furnished the grounds of arrest. This is probably one part which the public may not even be aware of.
The direction came while the High Court was considering a regular bail application under Section 483 of the Bharatiya Nagarik Suraksha Sanhita, 2023. The petitioner was the sole accused in a case registered by the Vigilance and Anti-Corruption Bureau at Idukki. He was alleged to have been working as an Assistant Executive Engineer in Thodupuzha Municipality and to have demanded Rs 1.5 lakh as illegal gratification for issuing a completion certificate. He subsequently allegedly demanded and accepted Rs 75,000 as part of a trap.
The larger issue, however, was not whether the allegations of corruption were true. It was whether the State could claim to have arrested a person when the statutory requirements governing an arrest had not been fulfilled.
THE DISTINCTION
Justice Badharudeen observed that many accused persons arrested and produced before courts had been set free for non-compliance with the formalities of arrest. The High Court, therefore, made a significant distinction between an arrest in the physical sense and an arrest recognised by law.
Its reasoning is important. Where an arrest is found to be illegal because the formalities of arrest have not been complied with, there is no arrest or custody in the eye of law. The accused is, therefore, to be relegated to the position that existed before the purported arrest.
That leads to another important consequence. The High Court said that in such a situation the question of granting bail does not arise. Bail presupposes a valid arrest and custody. If the arrest itself is legally non-existent, the High Court cannot logically grant bail to a person who, in law, has not been arrested.
The proper course, according to the High Court, is to set the person free at the stage before the arrest.
This is a significant clarification because criminal procedure can, otherwise, produce an extraordinary legal fiction. A person may be physically surrounded by police officers, taken into custody, produced before a magistrate and described as an accused who has been arrested. Yet, if the statutory conditions that make the deprivation of liberty lawful have not been satisfied, the law cannot simply pretend that everything has been done correctly.
The High Court has, however, wisely avoided creating another loophole. It made clear that releasing a person because the arrest was illegal does not permanently immunise that person from arrest. The police may arrest the accused again after complying with the necessary formalities. The High Court directed that an order releasing an accused for non-compliance should specifically state that such release shall not be a rider to the subsequent arrest of that person by the police after compliance with the formalities of arrest.
This balances two competing interests: the liberty of the individual and the legitimate interests of criminal investigation.
A MORE UNCOMFORTABLE QUESTION
There is another, more uncomfortable dimension to this ruling. In the particular case before the High Court, the failure to follow arrest procedures may well have been the result of negligence, incompetence or sheer carelessness on the part of the investigating agency. But the criminal justice system cannot always assume that procedural violations are accidental.
There have been situations in which the manner in which an arrest is conducted may itself raise questions about whether the investigating authority has deliberately created a legally defective arrest. If that happens, the consequences can be extraordinary. A procedural failure can become the difference between lawful custody and no custody at all.
This is where the High Court’s approach becomes particularly valuable. It closes the possibility that an unlawful arrest can simply be converted into a conventional bail proceeding. If there was no valid arrest, the High Court cannot cure the defect merely by granting bail. The person has to be released because, legally speaking, the deprivation of liberty never acquired the necessary foundation.
At the same time, the police retain the power to make a fresh, lawful arrest.
The result is a useful separation between the criminal allegation and the legality of the state’s conduct. An accused may still be investigated. The allegation may still be serious. The evidence may still exist. But the state must follow the law while exercising its power.
That principle deserves to travel beyond Kerala.
A MUCH LARGER QUESTION
The present controversy also opens a much larger question: what about people who remain in custody without a legally sustainable arrest, charge sheet or judicial justification for prolonged deprivation of liberty? Higher courts across the country should perhaps use this opportunity to examine the larger problem of people who are held under various stringent or draconian laws, sometimes for extraordinarily long periods, while the criminal process moves slowly or, in some instances, barely moves at all.
There has been at least one instance of a person in custody, and even after six years no trial has started, because of the lack of a charge sheet.
There is an obvious irony here.
Those who possess influence, money or connections may sometimes be able to manipulate the machinery of arrest. Police officers may be persuaded, directly or indirectly, to delay an arrest, alter the timing of an arrest or, otherwise, create procedural circumstances that later become useful to the accused.
But there is another category: people who do not have such connections and who remain in custody for long periods even though the allegations against them have not been established. For such people, the deprivation of liberty itself becomes a punishment before guilt has been proved.
The constitutional principle is supposed to be the other way around. A person does not lose liberty merely because the State suspects him or her of wrongdoing. The criminal justice system exists to establish guilt through lawful procedure, not to substitute prolonged custody for proof.
The High Court’s order, therefore, provides an opportunity to revisit the broader relationship between arrest, custody, investigation and proof.
It is also a useful tool for the district judiciary.
District judges and magistrates frequently operate under enormous pressure. Criminal cases can carry political sensitivities, public pressure and institutional expectations. Yet, the judicial function is not to measure the popularity of an accused or the political consequences of releasing someone. It is to determine whether the State has followed the law.
The Kerala High Court has effectively given the district judiciary a practical mechanism for doing precisely that.
A judge can ask a simple but fundamental question: Has there actually been a lawful arrest? If the answer is no, the judge need not confuse procedural illegality with the merits of the criminal allegation. Nor should the court feel compelled to grant bail merely because the police have produced a person before it and called that person an arrested accused.
A FAIR DISTINCTION
This distinction could become particularly important in politically sensitive cases. A court must be able to distinguish between a genuine criminal investigation and a situation in which criminal law is being used for an improper purpose. Equally, it must distinguish between an accused escaping the consequences of an unlawful arrest and the State being prevented from pursuing a genuine case.
The High Court has struck a sensible balance. An illegal arrest does not make the accused permanently untouchable; it makes the particular deprivation of liberty unlawful.
That distinction protects both sides of the criminal justice equation.
The order should, therefore, not be dismissed as another judicial intervention over a technicality. Procedure is not an ornament attached to criminal law. Procedure is one of the principal safeguards by which the citizen is protected from the enormous power of the State.
When the police arrest someone, they are not merely moving a person from one place to another. They are exercising sovereign power over individual liberty. Every statutory safeguard attached to that power, therefore, matters. The High Court has recognised that reality. By insisting that courts verify whether the formalities of arrest have actually been followed, it has placed the responsibility where it belongs: on the State to demonstrate that the deprivation of liberty is lawful.
And by making clear that a person released because of an illegal arrest can subsequently be arrested lawfully, it has ensured that procedural safeguards do not become an instrument for defeating legitimate criminal investigations.
Perhaps the most important lesson is, therefore, a simple one: the police cannot manufacture a lawful arrest out of an unlawful one, and a court cannot manufacture custody out of an arrest that never legally existed.
That principle is technical only on the surface. At its heart lies the oldest question in a constitutional democracy: how much power can the State exercise over an individual, and what must it do before it exercises that power?
The Kerala High Court has provided one answer. It is now for the higher judiciary to consider whether the same scrutiny should extend to the many other forms of custody in which liberty can be lost without the safeguards that the law demands.
Requirements For A Legal Arrest
The following are some general recommendations/requirements for an arrest, except arrests under special acts:
Police must tell the individual the reason for his/her arrest at the time of making the arrest.
A police officer must be in full uniform with nameplate when making an arrest.
If the accused person goes willingly with the police, then no restraint can be used.
The police must prepare an Arrest Memo at the time of arrest or as soon as they enter the police station with the accused.
The Arrest Memo must contain the name of the arrested person, the FIR number, the crime for which he/she is being arrested, the time, date and place of arrest.
The Arrest Memo must be signed by two independent witnesses.
If desired, the arrested person can demand that the police record his/her physical condition on arrival at the police station.
Family members have the right to accompany an arrested person to the police station.
Any arrest made must be recorded at the police station in a special register and the District Control Room must be informed about it.
An arrested person must be produced before a Magistrate within 24 hours of the arrest. This is compulsory and mandated by law.
One should ensure that the two witnesses who sign the Arrest Memo are independent of police influence. The witnesses should preferably be family members or friends. Accompanying policemen or other police who are present at the station are not independent witnesses.
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