ADV.P.S.SUBEESH vs STATE OF KERALA
- Court
- Kerala High Court
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V
&
THE HONOURABLE MR.JUSTICE K. V. JAYAKUMAR
RD
FRIDAY, THE 23 DAY OF OCTOBER 2026 / 1ST KARTHIKA, 1948
WP(PIL) NO. 165 OF 2025
PETITIONER:
ADV.P.S.SUBEESH, S/O. SHANKARAN,
AGED 46 YEARS
AKP JUNCTION, IRINJALAKKUDA,
NORTH THRISSUR, PIN - 680125
BY ADVS.
SHRI.T.K.SANDEEP
SMT.RESHMA VISWANATHAN
GOVERNMENT PLEADER
RESPONDENTS:
1 STATE OF KERALA
REPRESENTED BY REPRESENTED BY ITS CHIEF SECRETARY,
SECRETARIAT, THIRUVANANTHAPURAM, PIN - 695016
2 THE SECRETARY
DEPARTMENT OF HOME AFFAIRS,
GOVERNMENT SECRETARIAT,
THIRUVANANTHAPURAM, PIN - 695001
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3 THE DIRECTOR GENERAL OF POLICE
POLICE HEADQUARTERS,
THIRUVANANTHAPURAM, PIN - 695010
4 THE DIRECTOR GENERAL OF PROSECUTION
DIRECTORATE OF PROSECUTION, PANAKKAL TOWER,
KOMBARA COCHIN, PIN - 682018
BY ADVS.
SR.GOVERNMENT PLEADER, LALIZA T.Y.
DIRECTOR GENERAL OF PROSECUTION, SRI. ASIF ALI
SHRI.RASHEED C.NOORANAD, SPL.GOVERNMENT PLEADER
THIS WRIT PETITION (PUBLIC INTEREST LITIGATION) HAVING
COME UP FOR FINAL HEARING ON 23.10.2026, THE COURT ON THE
SAME DAY DELIVERED THE FOLLOWING:
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J U D G M E N T "CR"
Raja Vijayaraghavan V, J.
This Writ Petition is filed in the public interest, challenging the
constitutional and legal validity of Ext. P1 Guidelines, bearing G.O.(Ms)
No.202/2023/Home dated 21.09.2023 issued by the Government of Kerala. The
above guidelines lay down the protocol that is to be followed while producing
accused before the Registered Medical Practitioners in Hospitals or Judicial
Officers for medical examination/procedures/medico legal examination. Along
with Ext.P1, an annexure styled as "Additional Medico-legal Protocol/Additional
Guidelines that are to be followed while producing persons before the registered
medical practitioners in Hospitals or before the Judicial Officer for medical
examination/procedures/medico-legal examination" was issued.
2. The petitioner impugns Clauses 17 to 21 of the Guidelines, which
read as under:
“(17) In the case of mentally unstable or disturbed persons
being produced before Judicial Officer, the matter should be informed in
detail by an officer of and above the rank of sub inspector to the
Judicial Officer.
(18) The accused shall be produced before the Judicial Officers,
as far as possible, in between 10:00 A.M. and 5:00P.M.
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(19) If there exists any exceptional circumstance for the
production of the accused before the Judicial Officer after 5:00 P.M.,
there shall be a prior intimation by the superior officer of the
investigation officer to the Judicial Officer. Further, the investigation
officer shall be present at the time of production of the accused to
explain such circumstances.
(20) If the production of the accused is made at a time after
7:00 P.M., the Prosecutor concerned shall also accompany the police
party to certify as to the exceptional circumstance which led to the
delay.
(21) Chief Judicial Magistrates shall monitor the production of
the accused after 7:00 P.M within their jurisdiction by obtaining monthly
reports from the Judicial Officers so as to ensure scrupulous compliance
of the protocol.”
3. In essence, clauses 17 to 21 seek to regulate the circumstances
and the procedure for producing a mentally unstable or disturbed person, or an
accused person, before Judicial Officers, particularly outside ordinary Court
hours. Additional conditions are imposed insofar as reporting, attendance, and
monitoring requirements by the Police and the prosecution. Clause 17 says that
if a mentally unstable or disturbed person is produced before a Judicial Officer,
an Officer of and above the rank of Sub-Inspector of Police shall inform in detail
the circumstances. Clause 18 imposes a condition that, as far as possible, an
accused shall be produced during working hours, i.e., in between 10:00 a.m. and
5:00 p.m. Clause 19 states that if there exists any exceptional circumstance for
the production of the accused before the Judicial Officer after 5:00 P.M., there
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shall be a prior intimation by the superior officer of the investigation officer to
the Judicial Officer. It also mandates that the investigation officer shall be
present at the time of production of the accused to explain such circumstances.
Clause 20 states that if the production of the accused is made any time after
7:00 P.M., the Prosecutor concerned shall also accompany the police to certify as
to the exceptional circumstance which led to the delay. Under Clause 21, the
Chief Judicial Magistrate is required to monitor the production of the accused
after 7:00 P.M. within their jurisdiction by obtaining monthly reports from the
Judicial Officers so as to ensure scrupulous compliance of the protocol.
4. The petitioner states that he is a lawyer by profession and,
according to him, impugned guidelines would deeply impact and affect the
constitutional rights of every person in the society. He asserts that the clauses
above are worded in such a fashion that it creates a restriction as well as a
procedural embargo upon the police officers from producing the accused persons
before the learned Magistrate outside the prescribed time range, even when
such production is prompt and immediate and thus disincentivises the exercise of
the statutory duty. It is contended that the clauses above would cause an
unreasonably chilling effect on the statutory and constitutional duty of the police
in producing a person who has been arrested before a magistrate as required
under Section 57 and Section 58 of the Bhartiya Nagarik Suraksha Sanhitha,
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2023 (hereinafter referred as 'BNSS').
5. A counter affidavit has been filed by the 2nd respondent on behalf
of the 1st respondent. It is stated therein that in the aftermath of the tragic
incident leading to the death of Dr. Vandana Das, a house surgeon at the Taluk
Hospital Kottarakkara, this Court had directed the State Government to evolve a
protocol to ensure the protection of doctors, healthcare professionals, students
etc. This Court had also directed the Government to hear all stakeholders,
including the Kerala Judicial Officers Association, Indian Medical Association
(IMA), etc. After considering the inputs from all stakeholders, the guidelines
were issued. It is stated that the impugned Government Order does not in any
manner dilute, override, or extend the time limit prescribed under Article 22(2)
of the Constitution of India, 1950 or under Section 58 of BNSS which mandate
the production of an accused person before the Magistrate within 24 hours. It is
further stated that the Government Order constitutes only a set of reasonable
administrative guidelines, regulating the manner of production without affecting
the substantive rights of the accused. It is stated that the use of the phrase "as
far as possible" in Clause 18 serves as a directive to the Investigating Officer and
does not impose a total ban on production after 5:00 p.m. The Government
Order has also clarified that in exceptional circumstances, the police can produce
an accused after 5:00 p.m. with intimation by a superior officer. It is further
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stated that the protocol expressly allows late-night production in "exceptional
circumstances", particularly when the 24-hour limit is approaching. It is stated
that the protocol operates strictly within the constitutional and statutory
mandate and reinforces safeguards against arbitrary detention rather than
diluting them.
6. While the petition was pending consideration, a memo was filed,
bringing to the notice of this Court that Clauses 18 to 21 of Ext.P1 Guidelines
stand modified. The modified guidelines read as under:
"Clause: (18) The accused shall be produced before
the Judicial Officers, as far as possible, in between
10:00 A.M. and 5:00 P.M. strictly adhering to the 24
hours time limit prescribed under Section 58 of BNSS,
Article 22(1) (sic) of the Constitution of India.
Clause: (19) If there exists any exceptional
circumstance for the production of the accused before
the Judicial Officer after 5:00 PM there shall be a prior
intimation to the Judicial Officer, concerned about the
production of accused during late hours.”
7. We have heard the submissions of Sri. T. K. Sandeep, the learned
counsel appearing for the petitioner and Sri. Asif Ali, the learned Director General
of Prosecution.
8. The learned counsel for the petitioner submits that, though Ext. P1
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was diluted by the subsequent guidelines dated 24.09.2026, the restrictions
contained therein are tantamount to imposing unreasonable restrictions. The
learned counsel would point out that the guidelines were issued on the strength
of representation of the Association of Judicial Officers and, according to him,
the same is violative of Article 22(2) of the Constitution of India and Section 58
of the BNSS. The learned counsel would refer to modified Clause 18 and submit
that exclusions like "as far as possible" and "exceptional circumstances"
effectively place a presumption of delay and force Police Officers and Prosecutors
to justify their lawful action. According to the learned counsel, Sections 56 and
57 of the Code of Criminal Procedure (Cr.P.C.) and Sections 57 and 58 of the
BNSS lay down in unequivocal terms that every arrested person must be
presented before the Magistrate without unnecessary delay and in no case
beyond 24 hours. The learned counsel points out that these provisions do not
impose any restriction based on court hours or the time of day. The learned
counsel would also submit by relying on Article 22(2) of the Constitution of India,
that the right of every person arrested to be produced before a Magistrate within
24 hours is a fundamental right and the same is not merely procedural. It was
urged that any executive order which has the effect of limiting or conditioning
the exercise of right is ultra vires the Constitution. The learned counsel would
then refer to the judgment rendered by the Hon'ble Supreme Court in Jaskaran
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1
Jeet Singh Deol v. State of Punjab and specifically to paragraph No. 37 of
the judgment, and it is argued that when a certain procedure is prescribed by
the Constitution or the laws for depriving a citizen of his personal liberty, it is the
duty of the court to ensure that such procedure is rigorously observed, however
strange this might sound to some ears. The learned counsel would also refer to
the observations made by the Hon'ble Supreme Court in Enforcement
2
Directorate Government of India v. Kapil Wadhawan , and it was urged
that Article 22(1) read with Article 21 of the Constitution would be consistent
with the inviolable right of personal liberty and dignity and the same is to be
reckoned in tune with the provisions of the Code. The learned counsel has also
referred to the principles of law laid down by the Apex Court in State of
3
Gujarat v. Lalsingh Kishansingh , a judgment of the High Court of Gujarat in
4
Pravinkumar Chandrakant Vyas v. State of Gujarat , that of this Court in
5
Chadayam Makki Nandanan v. State of Kerala and that of the Apex Court
6
in Uday Mohanlal Acharya v. State of Maharashtra to bolster the
submissions. According to the learned counsel, if the guideline is allowed to
stand, it would be violative of the fundamental rights guaranteed to the accused
in Articles 21 and 22 and contrary to the provisions of the Cr.P.C. as well as the
1
[ 2026 INSC 1022 ]
2
[(2024) 7 SCC 147]
3
[ AIR 1981 SC 368 ]
4
[2001 (3) GLR 2755]
5
[1980 KHC 423]
6
[(2001) 5 SCC 453]
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BNSS.
9. The submissions advanced by the learned counsel appearing for
the petitioner are vehemently opposed by the learned Director General of
Prosecution. It is submitted, by specifically referring to Clauses 18 and 19 of the
guidelines, that the intent of the Government was only to ensure the production
of the accused in tune with the provisions of Article 22(2) of the Constitution and
Section 58 of the BNSS, and the Clauses cannot be interpreted to mean that any
rights of the accused have in any manner been diluted.
10. According to the learned counsel, such guidelines were issued after
consultation with various stakeholders, and the objective was only to streamline
the production of the accused who was arrested in connection with the crime
before the Magistrate in strict compliance with the provisions of the Code. The
learned Director General of Prosecution has also referred to Section 50 of the
Kerala Police Act, 2011 and submitted that there are eventualities where a
particular person becomes physically injured after being taken into custody by
the police, and these aspects were also considered while framing the guidelines.
11. We have carefully considered the submissions advanced by both
sides.
12. The question is whether Clauses 18 and 19 of the Additional
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Guidelines issued by the Government of Kerala to be followed while producing
accused persons before the Judicial Officer are violative of the statutory as well
as constitutional rights of the accused, as contended by the petitioner.
13. We have already extracted the modified guidelines. Clause 18
prods the police to produce the accused before Judicial Officers, as far as
possible between 10:00 a.m. and 05:00 p.m. Though it is added that the police
shall strictly adhere to the timeline to the 24-hours time limit, prescribed under
Section 58 of BNSS and Article 22(2) of the Constitution of India, the following
Clause 19 speaks about exceptional circumstances. At this juncture, it needs to
be noted that the guidelines refers to Article 22(1), whereas the constitutional
provision governing production before a Magistrate within 24 hours is Article
22(2). Article 22(1) deals with being informed of the grounds of arrest and the
right to consult and be defended by a legal practitioner. A reading of the
guideline would reveal that the production of an accused before the Judicial
Officer after 5:00 p.m. is considered as an exceptional circumstance. The specific
contention of the petitioner is that imposing such conditions would violate the
provisions of Article 22(2) of the Constitution of India and Section 58 of BNSS.
14. The question is whether an executive direction can be issued to
dilute the minimum safeguards guaranteed to an accused person under Article
22(2) of the Constitution of India and the statutory safeguards governing arrest
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and detention. On a prima facie reading of the guidelines, we are of the view
that any direction which would make it easier for the executive to detain an
accused or to delay the production before the Magistrate or curtail the
procedural protections prescribed by law, cannot be sustained. Before going
further, it would be appropriate to refer to the provisions.
Article 22(1) and Article 22(2) are as follows:
22. Protection against arrest and detention in certain cases. -
(1) No person who is arrested shall be detained in custody
without being informed, as soon as may be, of the grounds for
such arrest nor shall he be denied the right to consult, and to be
defended by, a legal practitioner of his choice.
(2) Every person who is arrested and detained in custody shall
be produced before the nearest magistrate within a period of
twenty-four hours of such arrest excluding the time necessary
for the journey from the place of arrest to the court of the
magistrate and no such person shall be detained in custody
beyond the said period without the authority of a magistrate.
15. Clause (1) of Article 22 is a negative prohibition. It says that no
person who is arrested shall be detained in custody without being informed, as
soon as may be, of the grounds for such arrest nor shall he be denied the right
to consult and to be defended by a legal practitioner of his choice. Insofar as
clause (2) is concerned, there is a clear mandate here. Every person who is
arrested and detained in custody shall be produced before the nearest
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Magistrate within a period of twenty-four hours of such arrest, excluding the
time necessary for the journey from the place of arrest to the court of the
Magistrate, and no such person shall be detained in custody beyond the said
period without the authority of the Magistrate.
16. The constitutional mandate of Article 22(1) has been provided for
as a statutory protection to an arrestee under Section 50 of Cr.P.C. Section 50 of
the Cr.P.C. reads thus:
50. Person arrested to be informed of grounds of arrest and of
right to bail. -
(1) Every police officer or other person arresting any person
without warrant shall forthwith communicate to him full particulars
of the offence for which he is arrested or other grounds for such
arrest.
(2) Where a police officer arrests without warrant any person
other than a person accused of a non-bailable offence, he shall
inform the person arrested that he is entitled to be released on
bail and that he may arrange for sureties on his behalf.
17. While sub-section (1) of Section 50 mandates every police officer
or other person arresting any person without warrant to forthwith communicate
to the arrestee full particulars of the offence for which he is arrested or other
grounds for such arrest, as per sub-section (2), where a police officer arrests
without warrant any person other than a person accused of a non-bailable
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offence, he shall inform the person arrested that he is entitled to be released on
bail for which he may arrange his sureties.
18. Section 50 of the Cr.P.C. corresponds to Section 47 of the BNSS.
The protection of clause (2) of Article 22 finds manifestation in Section 57
Cr.P.C., which reads as under:
57. Person arrested not to be detained more than twenty-four
hours. - No police officer shall detain in custody a person arrested
without warrant for a longer period than under all the
circumstances of the case is reasonable, and such period shall not,
in the absence of a special order of a Magistrate under section
167, exceed twenty-four hours exclusive of the time necessary for
the journey from the place of arrest to the Magistrate's Court.
19. Section 57 prohibits a police officer from detaining in custody a
person arrested without a warrant for a longer period than under all the
circumstances of the case is reasonable and such period shall not, in the
absence of a special order of a Magistrate under Section 167, exceed twenty-four
hours exclusive of the time necessary for the journey from the place of arrest to
the Magistrate's court. It needs to be borne in mind that these are outer limits,
and not a general entitlement to keep an arrested person in custody until the
deadline.
20. Section 58 BNSS is the present provision corresponding to Section
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57 Cr.P.C., providing for the same time frame of twenty-four hours.
7
21. The Apex Court in Sheela Barse v. State of Maharashtra , and
8
in Joginder Kumar v. State of U.P. , has laid down that the protection of an
arrested person's rights must commence immediately upon arrest. The police are
required to ascertain from the arrestee the name of a friend or relative who
should be informed of the arrest and communicate the same to such person.
Where the arrestee has no friend or relative to inform, or declines to furnish
such details, the police must intimate the nearest Legal Aid Committee so that
immediate steps can be taken to provide legal assistance at State expense.
These safeguards give effect to Articles 22(1) and 39A of the Constitution and
the right of an arrested person to consult and be defended by a legal practitioner
of choice. Under the BNSS, these protections find statutory expression, inter alia,
in Sections 36 and 38, which prescribe safeguards upon arrest and recognise the
right of the arrested person to meet an advocate of choice during interrogation,
though not throughout the interrogation. Section 48 further requires the police
to inform a relative, friend or other nominated person of the arrest and to record
the prescribed particulars. Read with Sections 47, 57, 58 and 187 of the BNSS,
these safeguards underline that the rights of an arrested person and the
obligation to secure timely judicial oversight arise from the moment of arrest and
7
(1983) 2 SCC 96
8
(1994) 4 SCC 260
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cannot be postponed merely for administrative convenience.
22. Section 187 of the BNSS has also some relevance while testing the
guidelines. The said provision provides for the procedure to be followed when an
investigation cannot be completed within twenty-four hours. Where there are
grounds for believing that the accusation is well-founded, the investigating
officer, if not below the rank of Sub-Inspector, shall forthwith forward the
accused to the nearest Judicial Magistrate along with the relevant entries in the
case diary. The Magistrate may authorise detention in such custody as deemed
fit, subject to the statutory limits. Police custody may be authorised only when
the accused is produced in person for the first time and on every subsequent
occasion during which police custody continues, whereas further detention in
judicial custody may be authorised on production either in person or through
electronic video linkage. Under Section 187(2A), where a Judicial Magistrate is
unavailable, the accused may be forwarded to the competent Executive
Magistrate, who may, for reasons recorded in writing, authorise detention for a
period not exceeding seven days in the aggregate, subject to the statutory
conditions. Any police custody authorised by a Magistrate must be supported by
recorded reasons.
23. Upon production of the accused for remand under Section 187 of
the BNSS, the Magistrate is required to examine whether the statutory and
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constitutional safeguards governing arrest have been complied with, including
whether the grounds of arrest have been duly communicated as required under
Section 50 of the Code, corresponding to Section 47 of the BNSS. Where
non-compliance is established, it may furnish an additional ground for refusing
remand or granting appropriate relief, including release on bail, in accordance
with law.
24. Keeping in mind the constitutional and statutory rights we shall test
the provisions by considering a scenario which happens day in and day out
before the Magistrate Courts in the State.
9
25. In Prabir Purkayastha v. State (NCT of Delhi) , while dilating
on the necessity for furnishing the grounds of arrest to the arrested person, the
Apex Court held thus:
"19. ………The purpose of informing to the arrested person
the grounds of arrest is salutary and sacrosanct inasmuch as this
information would be the only effective means for the arrested
person to consult his advocate; oppose the police custody remand
and to seek bail. Any other interpretation would tantamount to
diluting the sanctity of the fundamental right guaranteed under
Article 22(1) of the Constitution of India."
26. The Bench observed that the right to life and personal liberty is the
9
[2024 AIR SC 2967]
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most sacrosanct fundamental right guaranteed under Articles 20, 21 and 22 of
the Constitution of India. Any attempt to encroach upon the fundamental rights
guaranteed under the aforesaid provisions of the Constitution has not only been
frowned upon by this Court in a catena of judgments but would have to be dealt
with strictly.
27. When a violation of Article 22(1) is established, it is the duty of the
court to forthwith order the release of the accused. That would also be a ground
to grant bail even if statutory restrictions on the grant of bail exist. The Apex
Court held that:
"When a violation of Article 22(1) is established, it is the
duty of the court to forthwith order the release of the accused.
That will be a ground to grant bail even if statutory restrictions on
the grant of bail exist. The 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."
28. In Jaskaran Jeet Singh Deol (supra), the Apex Court had
summed up the core principles qua Article 22(1). It was held that the grounds of
arrest must be in writing and in a language which is understood by the accused.
A copy of such written grounds of arrest has to be furnished to the arrested
person as a matter of course and without exception. An accused has a
fundamental and statutory right to be informed about the grounds of his arrest
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in writing and a copy of such written grounds of arrest has to be furnished to the
arrested person as a matter of course and without exception at the earliest. Any
attempt to encroach upon the fundamental rights guaranteed under Article 22(1)
of the Constitution has to be frowned upon by the courts and dealt with strictly.
It would vitiate the process of arrest and remand. Such a fundamental right
being sacrosanct, cannot be breached under any situation. Any breach or
non-compliance would entail immediate release of the arrested person because
such arrest is unconstitutional. Subsequent filing of chargesheet and order of
cognizance will not validate such an arrest. Article 22(1) applies across the
spectrum including offences under the IPC/BNS or under special enactments,
and is not statute-specific. When an accused is released for violation of his
fundamental rights under Article 22 (1), he is not enlarged on bail. He is released
from illegal and unconstitutional detention.
10
29. In Mihir Rajesh Shah v. State of Maharashtra , it was
observed that early access to legal assistance at the remand stage is essential to
protect personal liberty. Legal assistance must be effective and meaningful,
enabling the accused to understand the allegations and grounds relied upon by
the prosecution, oppose police custody and place relevant circumstances before
the Magistrate. Where the accused is unrepresented, the Magistrate must ensure
that the entitlement to free legal aid is brought to the accused's attention. The
10
AIR 2025 SC 5554
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judgment further emphasises that, under Section 187 of the BNSS, the accused
must be physically produced before the Magistrate for authorisation of police
custody, thereby ensuring both the accused's physical presence and an
opportunity to be heard and represented by counsel. The Magistrate must
independently apply judicial mind to the material and cannot act as a mere
rubber stamp for the investigating agency's request for remand. The Apex Court
has further held that the constitutional safeguards, valuable as they are, cannot
be interpreted in a manner so as to allow it to metamorphose into a procedural
impediment that handicaps the law enforcing agencies in due lawful discharge of
their duties. Therefore, a balance between compliance with the constitutional
and statutory safeguards, on the one hand, and the effective discharge of lawful
statutory law enforcement duties and responsibilities cast upon the State
agencies must be struck.
30. We shall now examine the practical consequences of the impugned
guidelines in the light of the constitutional safeguards, the relevant statutory
provisions and the principles laid down by the Hon'ble Supreme Court.
31. Let us consider the case of an accused arrested on the allegation of
having committed a non-bailable offence. If the accused is arrested at or after
5:00 p.m., the investigating officer may be reluctant to produce the accused
immediately before the Judicial Officer, having regard to the requirement that
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production after 5:00 p.m. must be justified by exceptional circumstances and
preceded by intimation to the Judicial Officer. In the counter affidavit, it is
specifically stated that an exceptional circumstance would arise if the
twenty-four-hour period is nearing its expiry. If the guidelines are understood as
treating the impending expiry of the twenty-four-hour period as the exceptional
circumstance warranting production after 5:00 p.m., their practical effect may be
to encourage the police to wait until the following morning, when the ordinary
court day commences. Such a course may, in a particular case, fall within the
outer limit of twenty-four hours. However, compliance with that limit alone would
not establish compliance with the separate obligation to produce the arrested
person without unnecessary delay. More importantly, such postponement would
delay the accused's opportunity to obtain legal assistance, challenge the legality
of the arrest, oppose remand and seek appropriate relief before the Magistrate.
If the applicable safeguards governing arrest have been violated, the grounds of
arrest have not been furnished as required by law, or the accused is otherwise
able to establish a legally sustainable ground for bail, the Magistrate would be
required to consider the matter in accordance with law and grant appropriate
relief where warranted. The concern is therefore not merely theoretical. A
procedural arrangement intended to regulate the timing of production may, in its
practical operation, discourage the promptness that the constitutional and
statutory safeguards are designed to secure.
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32. A different difficulty may arise where an accused is arrested at
about 4:30 p.m. and, during interrogation, makes a disclosure that may lead to
the recovery of a weapon, stolen property or other material evidence. Even in
such circumstances, the investigating officer may consider it expedient to
produce the accused before the Magistrate before 5:00 p.m. and seek police
custody on the following day, rather than arrange for production after ordinary
court hours and proceed with time-sensitive investigative steps in the meantime.
Although the subsequent grant of police custody may enable the investigation to
continue, the need to defer the recovery may, depending on the facts,
compromise the effectiveness of the investigation or result in the loss of an
opportunity to secure material evidence. This example illustrates how the
guidelines may influence the decisions of investigating officers in ways that are
not necessarily conducive either to prompt judicial scrutiny or to the effective
conduct of a lawful investigation. The issue is not whether the police may retain
an accused in custody at their discretion, but whether an executive protocol
should create avoidable procedural impediments to the timely exercise of
investigative powers recognised by law.
33. The two situations illustrate the consequences that may arise from
the impugned provisions. On the one hand, the police may be encouraged to
postpone production until the following morning, thereby delaying judicial
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scrutiny and the effective exercise of the accused's rights. On the other hand,
the investigating officer may curtail or defer time-sensitive investigative steps in
order to comply with the preferred hours of production. Neither consequence is
expressly mandated by the language of the guidelines. Nevertheless, their
constitutional validity must be assessed not merely by reference to their literal
terms, but also with due regard to the manner in which they may operate in
practice. The expressions "as far as possible" and "exceptional circumstances",
when read together, may create a disincentive to production outside ordinary
court hours, even where the circumstances warrant immediate production.
34. The fact that the guidelines refer to the twenty-four-hour limit does
not, by itself, answer the objection. Article 22(2) of the Constitution and Section
58 of the Bharatiya Nagarik Suraksha Sanhita, 2023 prescribe the maximum
period for which a person arrested without warrant may be detained without
being produced before a Magistrate, excluding the time necessary for the
journey from the place of arrest to the Magistrate's Court. They do not confer a
general right upon the investigating agency to defer production until that period
is about to expire. Nor can an administrative preference for production during
ordinary court hours override the obligation to produce an arrested person
without unnecessary delay. Equally, the legitimate objectives of ensuring the
safety of Judicial Officers and facilitating orderly production cannot justify
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procedural requirements that operate to the detriment of the arrested person's
fundamental rights or unnecessarily impede a lawful investigation.
35. The question, therefore, is whether the impugned guidelines
merely facilitate coordination and accountability or whether, by treating
production after 5:00 p.m. as exceptional and attaching additional requirements
to such production, they create a practical impediment to the prompt production
of an arrested person before the Magistrate. If the latter is their effect, the
guidelines would risk subordinating constitutional safeguards to administrative
convenience. The provisions must accordingly be examined against the
requirement that an arrested person be afforded prompt judicial scrutiny, timely
access to legal assistance and an effective opportunity to challenge the legality
of arrest and detention, while preserving the investigating agency's ability to
undertake lawful and time-sensitive investigative steps. An executive protocol
cannot dilute the safeguards guaranteed by the Constitution and the governing
statute, whether directly or through procedural arrangements that have the
effect of discouraging compliance with them. Though the State is entitled to
adopt reasonable measures for the safety of Judicial Officers and other persons
involved in the remand process, those measures must operate consistently with
the statutory powers of investigation, the duty to produce an arrested person
without unnecessary delay, and the constitutional protection of personal liberty.
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36. Resultantly, the petitioner is entitled to succeed. The modified
guidelines vide G.O. (Ms) No. 173/2026/HOME dated 24.09.2026, insofar as they
stipulate that an accused shall, as far as possible, be produced before the
Judicial Officer between 10 a.m. and 5 p.m. and that production after 5:00 p.m.
shall be permitted only in exceptional circumstances, cannot be sustained as
constitutionally valid and are accordingly set aside to that extent. However, the
provision requiring prior intimation to the learned Magistrate in cases of
production after 5:00 p.m. is upheld. The 1st respondent is directed to issue
fresh guidelines in accordance with the observations and findings hereinabove.
This Writ Petition is allowed.
Sd/-
RAJA VIJAYARAGHAVAN V
JUDGE
Sd/-
K. V. JAYAKUMAR
JUDGE
PS /22/10/26
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APPENDIX
PETITIONER EXHIBITS
Exhibit-P1 A TRUE COPY OF THE GOVERNMENT ORDER G.O.(MS)
NO. 202/2023 DATED 21.09.2023 ISSUED BY THE
HOME DEPARTMENT, GOVERNMENT OF KERALA
Exhibit-P2 A TRUE COPY OF THE REPRESENTATION SUBMITTED
BY THE JUDICIAL OFFICERS ASSOCIATION TO THE
GOVERNMENT OF KERALA DATED 01.06.2023
RESPONDENT EXHIBITS
Exhibit-R2(a) TRUE COPY OF G.O.(Ms)No.205/2024/HOME dated
6-9-2024