The Kerala High Court has delivered a landmark ruling affirming that the failure to communicate written grounds of arrest in a language understood by the accused renders the arrest illegal, irrespective of the gravity of the offence. This decision reinforces the non-negotiable nature of Article 22(1) of the Constitution and statutory mandates under the Bharatiya Nagarik Suraksha Sanhita, 2023, even in heinous cases involving sexual offences against minors.
Background & Facts
The Dispute
The petitioner, Sunil Kumar, is accused of multiple offences under the Bharatiya Nyaya Sanhita, 2023, the Juvenile Justice Act, and the Protection of Children from Sexual Offences (POCSO) Act. The prosecution alleges that between 2023 and January 20, 2025, he committed penetrative sexual assault on a minor victim at her residence, threatening her with imprisonment if she disclosed the acts. The case involves serious allegations under Sections 64, 65, 68, 75, and 127 of the BNS, and multiple provisions of the POCSO Act.
Procedural History
- February 9, 2025: Petitioner arrested without written communication of grounds of arrest.
- October 27, 2025: Bail application dismissed by the High Court on grounds of prima facie evidence.
- January 27, 2026: Fresh bail application filed challenging the legality of arrest due to non-compliance with Article 22(1) and Section 47 of BNSS.
Relief Sought
The petitioner seeks regular bail on the ground that his arrest was illegal due to non-communication of grounds of arrest, rendering his detention unconstitutional and void.
The Legal Issue
The central question was whether failure to communicate the grounds of arrest in writing, in a language understood by the accused, renders the arrest illegal under Article 22(1) of the Constitution and Section 47 of the Bharatiya Nagarik Suraksha Sanhita, 2023, even in cases involving serious sexual offences against children.
Arguments Presented
For the Petitioner
The petitioner’s counsel argued that the arrest memo, arrest card, and intimation to relatives failed to specify the nature of offences or the factual basis of arrest. They relied on Pankaj Bansal v. Union of India, Prabir Purkayastha v. State (NCT of Delhi), and Mihir Rajesh Shah v. State of Maharashtra to assert that written communication of grounds is mandatory, not optional. They emphasized that the absence of any acknowledgment by the accused of receiving grounds rendered the arrest procedurally void.
For the Respondent
The State contended that all procedural requirements under Chapter V of BNSS were complied with, citing the arrest card as sufficient documentation. They argued that the seriousness of the allegations under POCSO and BNS justified denial of bail and that technical non-compliance should not override public interest. They further submitted that the charge sheet had been filed and cognizance taken, which validated the process.
The Court's Analysis
The Court undertook a comprehensive review of Supreme Court precedents on Article 22(1) and statutory obligations under BNSS. It held that the right to be informed of grounds of arrest is not a procedural formality but a fundamental safeguard under Article 21 and 22 of the Constitution. The Court rejected the State’s argument that filing a charge sheet or cognizance by the court could cure a constitutional violation.
"The requirement of informing the person arrested of the grounds of arrest is not a formality but a mandatory constitutional requirement."
The Court distinguished State of Karnataka v. Sri Darshan, which permitted substantial compliance, by noting that in that case, the accused had received grounds before bail cancellation and the charge sheet was already filed. Here, no such communication occurred at any stage. The Court emphasized Mihir Rajesh Shah, which mandates written communication in a language understood by the arrestee, and held that oral communication alone, without subsequent written confirmation, is insufficient.
The Court found that Annexure-11 (arrest memo) omitted offence details, Annexure-12 (arrest card) was not acknowledged by the accused, and Annexure-13 (intimation to relatives) failed to specify any offence. The State produced no evidence - no affidavit, no witness testimony, no recording - to prove compliance. The burden, the Court reiterated, lies squarely on the investigating agency.
The Court further held that the principles laid down in Yazin S. v. State of Kerala and Vishnu N.P. v. State of Kerala regarding NDPS cases apply by analogy: where the nature of the offence depends on specific facts (e.g., age of victim, nature of assault), those facts must be communicated to enable meaningful defence.
The Verdict
The petitioner won. The Court held that the arrest and subsequent remand were illegal due to non-compliance with Article 22(1) and Section 47 of BNSS. The Court granted regular bail subject to conditions, declaring the arrest nonest and the detention unconstitutional.
What This Means For Similar Cases
Arrest Is Not Valid Without Written Grounds
- Practitioners must now challenge arrests in all cases - whether under POCSO, BNSS, or IPC - where written grounds are not provided in the arrestee’s language.
- A mere mention of sections in an arrest card, without acknowledgment, is insufficient.
- Bail applications should routinely include a ground challenging arrest legality under Article 22(1).
Burden of Proof Lies with the State
- The investigating agency must produce documentary proof - signed acknowledgment, audio-visual record, or affidavit of compliance - to rebut allegations of non-communication.
- Silence or absence of evidence will be construed as non-compliance.
- Courts will not presume compliance; it must be affirmatively established.
POCSO Cases Are Not Exempt from Procedural Safeguards
- The gravity of the offence does not override constitutional rights.
- Courts cannot condone procedural violations in sexual offence cases under the guise of public interest.
- Defence counsel must insist on production of arrest documentation at the earliest opportunity.
