The Kerala High Court has held that the arrest of a person is vitiated if the grounds of arrest are not communicated to the arrestee and their relative, friend, or nominated person at the time of first production before a magistrate for transit remand. The observation was made while disposing of a batch of bail applications filed by persons arrested outside the State of Kerala in connection with offences under the Narcotic Drugs and Psychotropic Substances Act, 1985.
The petitioners were apprehended in Delhi based on information provided by co-accused arrested in Kerala. They were produced before the Magistrate at Patiala House Court, Delhi, to obtain a transit warrant for transfer to Kerala. Subsequently, they were brought to Kerala and produced before the Sessions Court. The petitioners contended that the arrest grounds were not disclosed to them or their relatives prior to their production before the Delhi Magistrate, in violation of Section 48 of the Bharatiya Nagarik Suraksha Sanhita (BNSS) and Article 22(1) of the Constitution of India.
Dr. Justice Kauser Edappagath, delivering the judgment, emphasized that when an arrested person is brought before a non-jurisdictional magistrate solely for the purpose of securing transit remand, it is imperative that the grounds of arrest be communicated both to the arrestee and to their relative or friend, as required under Article 22(1) of the Constitution and Sections 47 and 48 of the BNSS, prior to such production.
The Court noted that while police have the authority to arrest individuals outside their jurisdictional limits, the arrested person must be produced before the nearest magistrate for obtaining transit remand. It further observed that the constitutional safeguard under Article 22(1), which mandates communication of arrest grounds, must be fulfilled at the time of production before the nearest magistrate within 24 hours, as stipulated under Article 22(2).
The Court referred to Sections 47 and 48 of the BNSS, which respectively require communication of arrest grounds to the arrestee and to their relative, friend, or nominated person. It held that these provisions must be interpreted in harmony with the mandate of Article 22(2). For the purpose of Article 22(1), the magistrate before whom the person is produced need not be a jurisdictional magistrate; however, for Article 22(2), production must be made before the nearest magistrate. This distinction arises because the primary consideration upon first production is the legality of the arrest, not the question of bail.
The Court explained that the contextual framework established by Articles 22(1) and 22(2), read with Sections 47 and 48 of the BNSS, necessitates that the checks and balances under Article 22(1) be satisfied when the arrested person is produced before the magistrate for the first time—namely, the nearest magistrate, who may or may not have jurisdiction over the offence.
Further elaborating, the Court stated that a transit remand is nonetheless a remand and entails handing over the person to police custody. Without establishing the legality of the arrest, such handover cannot be justified. Therefore, the magistrate before whom the person is produced after arrest must assess whether the arrest itself is illegal; this inquiry cannot be deferred to the jurisdictional magistrate. Any attempt to bifurcate this inquiry between two magistrates at different points in time would undermine the purpose of Article 22(2) and dilute the protection afforded by Article 22.
The Court warned that if the import of 'transit remand' is understood as police custody, then failing to comply with Section 48 of the BNSS would constitute a dilution of Article 22 itself.
In reaching its conclusion, the Court considered the constitutional framework under Articles 21 and 22, along with binding precedents laid down by the Supreme Court in Joginder Kumar v. State of U.P., D.K. Basu v. State of West Bengal, Priya Indoria v. State of Karnataka, Kasireddy Upender Reddy v. State of Andhra Pradesh, Pankaj Bansal v. Union of India, Vishal Manohar Mandrekar v. State of Telangana, Gautam Navlakha v. National Investigating Agency, Prabir Purkayastha v. State (NCT of Delhi), Vihaan Kumar v. State of Haryana, and Mihir Rajesh Shah v. State of Maharashtra. It also examined the statutory provisions under the BNSS and the former Code of Criminal Procedure.
After hearing the parties, the Court found merit in the petitioners’ claim that the arrest grounds were not communicated to their relatives prior to production before the Delhi Magistrate. The prosecution’s argument that compliance with procedural requirements is not immediately required when arrest occurs outside jurisdiction was rejected. The Court affirmed that the safeguards under Article 22(1) must be observed at the first instance of production before a magistrate, irrespective of jurisdiction, to prevent unlawful detention and uphold personal liberty.