Illegal Arrest Warrant Cannot Result in Bail; Kerala HC Explains Legal Position
Writing for itself and Justice PC Phanjoubol, Justice A Badharudeen said when courts find that an accused was illegally arrested, the court cannot release the accused on grant of bail but should release him and relegate him to the pre-arrest stage.
“When an accused seeks bail...the court presumes that he has been arrested by the police and produced before it lawfully. When the arrest is illegal, then granting of bail so as to secure release of the accused person is not be the correct procedure to be followed,” the Court observed while stating that “when the arrest is found to be illegal…for want of compliance of the formalities of arrest, there is no arrest or custody in eye of law and thereby the accused would be relegated to the stage before his arrest”.
Granting bail to a municipality engineer arrested in connection with bribery allegations, the High Court said that when the accused applied for bail, “the presumption is that he has been arrested lawfully and taken into custody.”
“The Court after finding the illegality in the arrest proceeded to grant bail and set him free. This course is not correct. The correct course is to set the accused persons free at the stage before his arrest…When releasing the accused from such illegal custody, the court can, with the same order, permit the police to arrest the accused forthwith on compliance of formalities of arrest,” the Court added.
Background of the Case
Jose Dominic was arrested by an armed squad of the Crime Branch CID. Jose sought bail before the High Court which allowed his plea but noted that he had been in jail since July 27. “The investigation has substantially progressed. There is nothing to show that the continuance in custody of the accused is necessary,” the Court noted.
Pointing out that courts routinely allow bail to those illegally arrested, “such course is wrong” the Court said. The accused person should be released by the Court and put back to a pre-arrest stage so that police are free to re-arrest him following due procedure, the High Court clarified.
It further directed that “all Criminal Courts subordinate to the High Court shall see to it that while releasing an illegally arrested person, the Court in its order of release shall clarify that the accused so released is free to move about and the Police is free to arrest the accused the same day after complying with the mandatory arrest formalities.”
Lead advocates V John Sebastian Ralph with 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) appeared for the state.
