Illegal arrest warrants release, not bail: Kerala High Court

The Kerala High Court recently observed that when an arrest is found to be illegal, courts should order the release of the accused with a clarification that the police is free to re-arrest the accused after following the due legal procedure [Jose MP v State of Kerala].

Justice A Badharudeen held that in such cases, the accused should not merely be released on bail, but instead released and relegated to a pre-arrest stage. 

The judge explained that when an accused applies for bail, the court assumes that there is a lawful arrest and custody. However, once the arrest itself is found to be illegal, then granting bail to secure the accused person's release is not be the correct procedure, the Court held.

"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... granting bail to (such) an accused produced before the court (after) finding the arrest as illegal would not get support from statutory provisions and the courts should not follow the said wrong procedure," the Court ruled.

The Court made the observation while granting bail to municipality engineer, who was arrested on allegations of bribery. The Court allowed the bail plea after noting that the accused engineer had been in jail since July 27, and had no criminal antecedents. The Court also found that he investigation in the case had substantially progressed and that the engineer’s continuation in custody was unnecessary.

While passing the order, the High Court took note of the larger issue of courts routinely granting bail to those found to have been illegally arrested. The Court said that this course was incorrect, stating that the proper approach was to order the accused person’s release and pave way for a legal re-arrest. 

The High Court proceeded to direct all criminal courts in Kerala to ensure that when an illegally arrested person is released, the release order should clarify that the police is free to re-arrest the person the same day after complying with mandatory arrest procedures.

The question bail, in such cases of illegal arrest, would not arise, the Court emphasised. 

”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 arrest shall not be a rider for the arrest of the accused so released by the Police on complying the formalities of the arrest permitting the course police to arrest the accused so freed, again," the Court said.

Advocates V John Sebastian Ralph, Vishnu Chandran, Ralph Reti John, Giridhar Krishna Kumar, Geethu TA, Mary Greeshma, Liz Johny, Krishnapriya Sreekumar, Abhijith PS, Devika Manoj and Ashuthosh P Kamath appeared for Jose.

Senior public prosecutor Roy Thomas (Muvattupuzha) represented the state.

[Read Judgment]