Kerala High Court Upholds Constitutional Rights: Section 47 BNSS Cannot Dilute Article 22(1) Protections

The Kerala High Court has once again emphasized that Section 47 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) cannot dilute the constitutional protections provided by Article 22(1). This ruling came in the context of bail applications involving alleged violations of the accused persons' rights under Article 22(1) and Sections 47 and 48 of the BNSS.

A Single Bench of Justice K. Babu observed that the fundamental right of every person arrested and detained is to be informed of the grounds of arrest as soon as possible. The Court stated, “Section 47 of the BNSS cannot have the effect of diluting the requirement of Article 22(1). If held so, Section 47 will attract the vice of unconstitutionality. Section 47 lays down the requirement of communicating the full particulars of the offence for which a person is arrested to him.”

The Bench noted that the existence of the power to arrest and the justification for exercising such power are two distinct aspects. Advocate P. Mohamed Sabah represented the petitioners, while Senior Public Prosecutor M.C. Ashi represented the respondents.

Contentions

The petitioners, who were the accused persons, asserted that they were not informed of the grounds of their arrest. Their counsel submitted that the arrest and remand of the accused were in gross violation of the constitutional protections under Articles 21 and 22(1) of the Constitution of India and Sections 47 and 48 of the BNSS. On the other hand, the respondents argued that Article 22(1) and Section 47 of the BNSS do not require the communication of the grounds of arrest in writing.

Court’s Observations

The High Court noted, “The mode of communication of grounds of arrest is to be in such a manner that the effectiveness of the same deserves to be tested on the touchstone of whether the mode of communication subserves the fundamental object mentioned above. When an arrestee pleads before a Court that grounds of arrest were not communicated, the burden to prove the compliance of Article 22(1) is on the police.”

The Court emphasized that once the arrest is held to be vitiated, the person arrested cannot remain in custody even for a moment. It added, “Therefore, continued custody of such a person based on orders of remand is also vitiated. Filing a charge sheet and order of cognizance will not validate an arrest which is per se unconstitutional, being violative of Articles 21 and 22(1) of the Constitution of India.”

The Expression “As Soon as May Be”

The Court further noted that Article 22 mandates that no arrested person shall be detained without being informed of the grounds at the earliest opportunity. If the grounds of arrest are not communicated to the arrestee as soon as may be, it would render the arrest illegal. The Court emphasized, “Arrested persons must be well equipped with the information not only about their arrest but the reasons and grounds thereof prior to the production so as to enable them to oppose police custody.”

The Court explained that the time frame within which the grounds of arrest should be supplied cannot be put into a rigid formula. The phrase “as soon as may be” in Article 22 does not mean prior to arrest but can be on arrest or thereafter. It observed, “It indicates as early as it can be conveyed. There can be situations where it may not be possible to supply such grounds to the arrested person at the time of his arrest or immediately. A rigid insistence on informing grounds of arrest immediately thereafter may result in the police officer not being able to discharge his duty and responsibility efficiently and effectively.”

In cases where the accused is apprehended red-handed, where informing the grounds of arrest is rendered impractical, it shall be sufficient for the police officer making the arrest to convey the same to the person at the time of arrest. The Court added, “Later within a reasonable time in any case not later than two hours prior to the production of the arrestee before the Magistrate, grounds of arrest should be supplied to the interested person. The rule of two hours prescribed as a lower limit would ensure that counsel has adequate time to scrutinize the grounds of arrest and gather material to defend the arrestee.”

Requirement of Article 22 is Not Statute Specific

The Court elucidated that the “other grounds for such arrest” referred to in Section 47(1) have nothing to do with the grounds of arrest referred to in Article 22(1). Statutory restrictions do not affect the power of the Court to grant bail when the violation of Articles 21 and 22 of the Constitution is established. The Court stated, “Obligation to inform grounds of arrest is not mere procedural formality; it flows from personal liberty. In terms of Section 48 and 47 of BNSS, the person making the arrest has to inform the arrestee of his right to indicate his relative, friend, or such other person for the purpose of giving information with regard to the arrest.”

The Court explained that the person effecting the arrest is liable to forthwith inform such arrest and the reasons and place where the arrested person is being held. The police officer making the arrest shall make an entry as to who has been informed of such arrest in a book to be kept in the police station, which is in addition to making the arrestee aware of the grounds of arrest.

Duty of Magistrate in Remand Proceedings

Furthermore, the Court observed that when an arrested person is produced before a Judicial Magistrate for remand, it is the duty of the Magistrate to ascertain whether compliance with Article 22(1) has been made. The Court noted, “The Magistrate Court cannot act as a post office affixing a stamp of approval to the remand papers presented before him. The Magistrate has to satisfy himself that the stipulations regarding passing on relevant information to the relative and the entry to this effect is to be recorded by the police officer.”

Conclusion

In the specific case, the Court remarked that the arrest intimation communicated to a near relative of the petitioner showed that only the penal Sections were conveyed to him. The Court concluded, “The specific allegations against the petitioner were not communicated to him. Moreover, the grounds and reasons, including the quantity of the contraband allegedly seized, were also not conveyed. So, this Court comes to the conclusion that the requirement of Article 22(1) of the Constitution of India and Sections 47 and 48 of the BNSS have not been satisfied. Therefore, the petitioner’s arrest and the subsequent remand are non est, and he is entitled to be released on bail.”

Accordingly, the High Court granted bail to the accused persons, except one.