Kerala High Court warns lawyers against filing Article 226 petitions instead of bail plea

The Kerala High Court on Tuesday took exception to attempts by lawyers to circumvent the bail jurisdiction by filing writ petitions filed under Article 226 of the Constitution of India.

The Division Bench of Justices AK Jayasankaran Nambiar and Jobin Sebastian, which recently started presiding over the jurisdiction of criminal writ petitions and appeals, noted that many cases before it ought to have been filed as bail applications.

Instead, lawyers choose to move cases under Article 226 alleging violation of fundamental rights by claiming improper arrest or remand. These petitions challenge the arrest itself when the appropriate remedy would be to seek bail from the trial court or even the High Court.

Justice Nambiar orally observed that such attempts at conducting parallel proceedings will not be entertained as long as he presides over this jurisdiction. He also warned lawyers that the Court would not hesitate to impose costs in such cases.

Justice Nambiar noted that in most cases, the primary contention raised is violation of Article 22 as the grounds of arrest were not provided to the accused before remand.

While grounds of arrest must be provided before arrest as per Article 22(1), the Court said that it must be read conjointly with Article 22(2), which mandates that persons who have been arrested and detained are to be produced before a magistrate within 24 hours.

Justice Nambair observed that if a person who has been arrested is taken to a magistrate within 24 hours, the right remedy is to seek bail, not challenge the arrest on the basis of Article 22(1).