Summary: The Kerala High Court at Ernakulam, in Jose MP v State of Kerala, considered a bail application filed under Section 483 of the Bharatiya Nagarik Suraksha Sanhita, 2023, arising from Crime No. 12/2026 registered by VACB, Idukki. The prosecution alleged offences under Sections 7(a) and 7(b) of the Prevention of Corruption (Amendment) Act, 2018 and Section 351(2) of the Bharatiya Nyaya Sanhita, alleging that the petitioner, an Assistant Executive Engineer of Thodupuzha Municipality, demanded and accepted illegal gratification in connection with issuance of a completion certificate. The petitioner had been in custody since 27.07.2026, had no criminal antecedents and submitted that custodial interrogation was complete. Before deciding the bail request, the Court addressed what it described as a vital issue concerning illegal arrests and non-compliance with arrest formalities. The Court observed that where an arrest is illegal because prescribed formalities, including prior notice or furnishing of grounds of arrest, have not been complied with, there is no arrest or custody in the eye of law and the accused is to be relegated to the stage before arrest. According to the Court, bail does not arise in such circumstances because bail presupposes a lawful arrest and custody. Instead, the accused should be released without granting bail or requiring execution of a bail bond, while the Investigating Officer may arrest the person again after complying with the required formalities. The Court referred to directions issued in Ashokan K.A v. State of Kerala and directed Criminal Courts in the District Judiciary to comply with those directions. In the present case, however, the Court found that further custody was unnecessary and allowed the bail application subject to conditions.
Introduction
It definitely stands absolutely justified and is entirely in the fitness of things that the Kerala High Court at Ernakulam in a most learned, laudable, landmark, logical and latest judgment titled Jose MP v State of Kerala in Bail Appl. No. 4885 of 2026 Crime No.12/2026 of VACB, Idukki, Idukki and cited in CNR : KLHC010647742026 and cited in Neutral Citation No.: 2026:KER:69467 that came up for admission on 11.09.2026 and pronounced on the same day made it indubitably clear that illegal arrests warrants release and not bail as the arrest itself is illegal. To put it differently, the Kerala High Court pointed out that when an accused applies for bail, it is presumed that the arrest was lawful. It was also made crystal clear by the court clarifying that however, if the arrest itself is illegal, granting bail to secure the accused’s release is not the correct procedure.
Proceedings Before the Kerala High Court
At the very outset, this brief, brilliant, bold and balanced judgment authored by the Single Judge Bench comprising of Hon’ble Mr Justice A Badharudeen of Kerala High Court at Ernakulam sets the ball in motion by first and foremost putting forth in para 1 that, “The bail application has been filed under Section 483 of Bharatiya Nagarik Suraksha Sanhita, 2023, seeking regular bail and the petitioner herein is the sole accused in Crime No. 12/2026 registered by VACB, Idukki.”
Needless to say, the Bench then states in para 2 that, “Heard the learned counsel for the petitioner as well as the learned Public Prosecutor appearing for State of Keralam; in detail.”
As we see, the Bench then lays bare in para 3 disclosing that, “Here the prosecution alleges commission of offences punishable under Sections 7(a), 7(b) of the Prevention of Corruption (Amendment) Act, 2018 and under Section 351(2) of the Bharatiya Nyaya Sanhita, by the petitioner, who is the sole accused in this crime.”
To put things in perspective, the Bench envisages in para 4 observing that, “The prosecution case is that the petitioner while working as Assistant Executive Engineer, Thodupuzha Municipality and as such being a public servant demand of Rs.1,50,000/- as illegal gratification from the complainant for the issuance of completion certificate in respect of the newly constructed building of Ayurvedic Hospital, Kalimadam, functioning in Chungam Kara, Thodupuzha, owned by him. The further case of the prosecution is that in continuation of the said demand as on 27.07.2026, the petitioner/accused demanded and accepted Rs.75,000/- as part of trap and was nabbed by the Dy.SP, red handed on the date of trap.”
As it turned out, the Bench enunciates in para 5 mentioning that, “The learned counsel for the petitioner submitted that the petitioner is innocent and has been in custody from 27.07.2026. It is also pointed out that the petitioner has no other criminal antecedents and his custodial interrogation also is over.”
As things stands, the Bench points out in para 6 that, “The learned Public Prosecutor though opposed bail pointing out the seriousness of the offences, he has fairly conceded that the petitioner has no criminal antecedents and he was arrested on 27.07.2026.”
Investigation Status
It is worth noting that the Bench notes in para 7 that, “On perusal of the prosecution allegations along with the report, the Investigating Officer stated as under: “It is humbly submitted that the investigation of this case is in its initial stages. A detailed investigation is required to ascertain whether the accused have engaged in other unlawful activities involving other Thodupuzha Municipal Officials. More witnesses need to be questioned, related documents need to be seized, and details regarding the properties of the accused and their relatives need to be collected.
It is respectfully submitted that after registering this case, another complaint received before the Vigilance Idukki unit alleging that the petitioner accepted illegal gratification from different persons.”
Illegal Arrest Warrants Release and Not Bail
Most significantly, most commendably, most forthrightly and so also most remarkably, the Bench encapsulates in para 8 what constitutes the cornerstone of this notable judgment postulating precisely that, “Before adverting the question as to whether bail is liable to be granted to the petitioner, this Court is inclined to address a vital issue which would require urgent consideration. It is noticed in abundance that many accused persons arrested and produced before the courts were set at free for non-compliance of the formalities of arrest. In some cases, the courts are granting bail on finding the arrest as illegal for non-compliance of the formalities of arrest, particularly, non issuance of prior notice to the accused and non-furnishing of grounds of arrest to the accused. In this connection, it is held that when the arrest is found to be illegal for non-compliance of the formalities of arrest, there is no arrest or custody in the eye of law and thereby the accused would be relegated to the stage before his arrest. The rationale is that a person without a legal arrest is either in the Police custody or in the custody of the court, when produced before the court to release him on bail. Then grant of bail doesn’t arise. Therefore, granting bail to an accused produced before the court, finding the arrest as illegal, would not get support from statutory provisions and the courts should not follow the said wrong procedure. Then the course open for the court is to set the accused person free at the stage before his arrest. While doing so, in the same order itself the court freeing the accused, produced before the court, shall pass an order to the effect that the release of the accused for non-compliance of the formalities of the arrest shall not be a rider for the arrest of the accused so released by the Police on complying the formalities of the arrest permitting the police to arrest the accused so freed, again. In this connection, it is pertinent to note that the Criminal Courts in the District Judiciary in the State are specifically directed to ensure that when an accused was arrested and produced before the court without complying the formalities of arrest the court shall ensure compliance of the formalities of arrest before his remand, (see the directions issued in the decision reported in [2026 (2) KHC 523] Ashokan K.A v. State of Kerala) and in the event the formalities could not be completed, by the time available, the Court shall release the accused at his liberty forthwith without granting bail and executing bail bond. Despite the specific directions, lacuna in complying the said directions to be noticed in wide magnitude. Some Investigating Officers are purposely exploiting this situation to free the accused, who had interest on him, with ulterior motives. Therefore, all Criminal Courts in the District Judiciary of the State are specifically directed to comply the above directions, without fail hereafter. Similarly, all Criminal Courts shall ensure that while setting an accused at his liberty, finding his arrest as illegal, the Courts shall pass an order on the date of release of the accused itself to the effect that the release of the accused for non-compliance of the formalities of arrest will not stand in the way of arresting the accused by the Investigating Officer, again, on completing the formalities of arrest and the courts must grant permission to the Investigating Officer to arrest the released accused again, on the same day, as per law. In the same way, the directions issued in Ashokan K.A.’s case (supra) also must be complied without fail.”
Grant of Bail to Petitioner
Finally, the Bench then concludes by stipulating, directing and holding in para 9 that, “Coming back, the petitioner herein, who has no criminal antecedents has been in custody from 27.07.2026, where the investigation has achieved much progress. Thus further custody of the petitioner, for the purpose of investigation is not necessary and he can be enlarged on bail and the request for further questioning sought for the Investigating Officer can be ensured by imposing necessary conditions. Therefore, this petition stands allowed. The petitioner is enlarged on bail on conditions:
i. The petitioner shall be released on bail on executing bond for Rs.1,00,000/- (Rupees One lakh Only) with two solvent sureties, each for the like amount to the satisfaction of the Jurisdictional court concerned.
ii. The petitioner shall not intimidate the witnesses or tamper with evidence. He shall cooperate with the investigation and shall be available for trial.
iii. The petitioner shall appear before the Investigating Officer as and when directed, apart from appearing before the Investigating Officer on all Mondays between 9 am and 10 am, for a period of three months or till the completion of investigation, whichever is earlier.
iv. The petitioner shall not, directly or indirectly, make any inducement, threat or promise to any person acquainted with the facts of this case, so as to dissuade him from disclosing such facts to the court or to any police officer.
v. The petitioner shall not involve in any other offence during the currency of bail and any such event, if reported or came to the notice of this court, the same alone shall be a reason to cancel the bail hereby granted.
vi. The petitioner shall not leave the jurisdiction of the Jurisdictional Court without prior permission of the Jurisdictional Court.
vii. Violation of any of the conditions imposed shall result in cancellation of bail hereby granted.
Registry is directed to forward a copy of the order to all Criminal Courts in the State for information with specific direction to comply the directions issued by this Court in paragraph No.8 of the order without fail, hereafter.”
Conclusion
In conclusion, the Kerala High Court has made it explicitly clear that when an accused applies for bail, it is presumed that the arrest was lawful. However, it added a caveat stipulating that if the arrest itself is illegal, it warrants release and not bail as granting bail to secure the accused’s release is not the correct procedure as in such cases, the accused should not merely be released on bail, but instead released and relegated to a pre-arrest stage. Very rightly so!
