Introduction:

In the landmark case Vishnu N P v. State of Kerala and connected matters, the Kerala High Court, presided over by Justice K. Babu, delivered a significant ruling reiterating that the failure of the police to communicate the grounds of arrest, in accordance with Article 22(1) of the Constitution and Sections 47 and 48 of the Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023, renders the arrest illegal and entitles the accused to bail. The case involved four bail applications filed by the petitioners who alleged gross violation of their constitutional and statutory rights during arrest and remand. The decision, which draws heavily from constitutional jurisprudence and recent Supreme Court rulings including Mihir Rajesh Shah v. State of Maharashtra and Vihaan Kumar v. State of Haryana, lays down a detailed framework on the manner, mode, and timeline for communicating the grounds of arrest, emphasizing that this communication is not a mere procedural formality but a vital safeguard of personal liberty under Article 21. Justice K. Babu examined the entire constitutional landscape surrounding Articles 21 and 22, earlier precedents beginning from Harikisan v. State of Maharashtra, and the new provisions of BNSS to conclude that the police have an unambiguous duty to inform the arrestee of the grounds of arrest in a language and manner that ensures full understanding and enables the accused to effectively exercise the right to consult and defend. The ruling underscores that an illegal arrest cannot be legitimized by subsequent procedural steps such as filing a charge sheet, and once an arrest stands vitiated on constitutional grounds, the accused must be released immediately.

Arguments of Petitioners:

The petitioners argued that their arrest and remand were fundamentally unconstitutional because the investigating officers failed to communicate the grounds of arrest “as soon as may be” as required by Article 22(1) of the Constitution and Sections 47 and 48 of BNSS. They contended that mere oral intimation or vague reference to the case cannot satisfy the constitutional mandate. Relying on the Supreme Court’s authoritative judgment in Mihir Rajesh Shah, the petitioners asserted that the grounds of arrest must be provided in writing to enable meaningful exercise of the right to counsel. The petitioners emphasized that the arrest memo is distinct from the grounds of arrest and that the latter must contain the actual factual basis and allegations leading to arrest, not just a formal record of custody. They argued that the State had violated the twin constitutional protections under Articles 21 and 22, and once these rights are breached, their custody becomes illegal regardless of the alleged offence or seriousness of charges. They further contended that the burden lies on the State to prove compliance with Article 22(1) whenever the legality of arrest is challenged. Since the State failed to produce any evidence of proper written communication within a reasonable timeframe, the petitioners sought release on bail solely on the ground of unconstitutional arrest.

Arguments of the State:

The Public Prosecutor countered that neither Article 22(1) nor Section 47 of BNSS explicitly mandates that the grounds of arrest be provided in writing. He argued that substantial compliance—meaning oral communication of the grounds of arrest—is sufficient to satisfy constitutional requirements. Relying on State of Karnataka v. Sri Darshan, the State submitted that the absence of a written document does not automatically render an arrest illegal unless the accused can show demonstrable prejudice. The prosecutor maintained that the communication of grounds must be judged contextually and practically, and that the Constitution does not intend to hamper police efficiency by imposing rigid timelines or modes of communication. The State further argued that in some cases, such as when a suspect is caught red-handed, immediate written communication is impractical, and oral communication should suffice. The State urged the Court to consider the seriousness of allegations, the progress of investigation, and the fact that a charge sheet had been filed in some cases, making the petitioners’ challenge unsustainable.

Court’s Judgment:

The Court, after thoroughly analyzing the constitutional scheme and statutory provisions, unequivocally held that failure to communicate the grounds of arrest in accordance with Article 22(1) and Sections 47–48 of BNSS renders the arrest illegal. The Court began by reiterating that Article 21 guarantees life and personal liberty, and Article 22(1) provides an immediate safeguard against arbitrary arrest by mandating that every arrestee must be informed, as soon as may be, of the grounds of arrest. Justice K. Babu emphasized that the term “inform” in Article 22(1) and “communicate” in Article 22(2) require effective imparting of knowledge, not merely superficial reading or vague oral statements. Both the wording and the purpose require that sufficient factual detail be conveyed to the accused in a language they understand. The Court undertook a historical review of jurisprudence beginning from Harikisan, where the Supreme Court held that informing grounds of arrest must be meaningful and not a technical ritual. The Court then relied on Mihir Rajesh Shah, where the Supreme Court resolved decades of inconsistency and held that grounds of arrest must be conveyed in writing at the earliest in all offences, noting that oral communication is insufficient to guarantee constitutional protection. The Kerala High Court held that the purpose of providing written grounds is to allow the accused to consult an advocate meaningfully, challenge police custody, and oppose remand. Denial of written grounds prevents all these constitutional safeguards from operating effectively. The Court rejected the State’s claim that written communication is not mandatory, stating that such an approach would reduce Article 22(1) to an empty formality. Justice K. Babu also clarified that the expression “as soon as may be” does not mean “before arrest” but does require written communication at the earliest possible point—either at the time of arrest or shortly thereafter, and in any case not later than two hours before production before the magistrate. This timeframe ensures that counsel has adequate opportunity to scrutinize the grounds, prepare submissions, and offer effective defense. The Court noted that rigid insistence on instant written communication in situations such as catching the accused red-handed may be impractical, but police cannot delay written communication beyond what is reasonably necessary. The judgment laid down that arrest memo and grounds of arrest are distinct; mere recording of arrest does not satisfy Article 22(1). Furthermore, when an accused claims non-communication, the burden shifts to the State to prove compliance, as held in Vihaan Kumar. The Court held that an illegal arrest cannot be cured by subsequent filing of charge sheet or remand orders. The magistrate’s role is not mechanical—he must actively ensure that Article 22(1) compliance is verified during first production. A magistrate cannot become a mere rubber stamp. Finally, the Court applied these principles to each bail application. For three petitioners, the Court found clear violations of Article 22(1) and BNSS, as the police failed to communicate written grounds within the prescribed reasonable timeframe. Their arrests were declared unconstitutional and illegal, entitling them to immediate bail despite any statutory restrictions. For one petitioner (B.A. 12603/2025), the Court found that the written notice of arrest and grounds was communicated to the father of the accused within the required time, thus satisfying Article 22(1); this bail plea was rejected.