Kerala Police face scrutiny over arrest procedure lapses in two cases

The Kerala Police have come under criticism for failing to follow mandatory legal procedures during arrests, a lapse that has led to the release of accused persons in two high-profile cases. The most recent instance involves T.G. Mohandas, who was arrested for allegedly making derogatory remarks against student protesters at Jantar Mantar and women activists.

The Additional Chief Judicial Magistrate in Thiruvananthapuram released Mohandas on bail on Monday after finding that the police had not issued him a notice under Section 35(3) of the Bharatiya Nagarik Suraksha Sanhita (BNSS), which requires stating the reasons for the arrest. The court rejected the police's argument that Mohandas was not given the notice due to fears that he might abscond, destroy digital evidence, or influence the complainant.

The court observed that the materials placed before it did not disclose any specific circumstance indicating that the accused was attempting to evade investigation or was likely to abscond. The fact that the investigating agency could locate the accused at his known residential address and conduct a search there was inconsistent with such apprehension, the court pointed out.

Mohandas was accused of uploading videos on his YouTube channel with the intention of breaching public peace and tranquility, inciting riots, and creating fear among activists who participated in the protest at Jantar Mantar. He was also accused of propagating offensive content that insulted womanhood and violated the dignity of women.

Earlier, M.K. Ram, the prime accused in the alleged suicide of dental student R.L. Nithin Raj in Kannur, was granted bail by the Thalassery Principal Sessions Court after it found that the police had not followed the guidelines during his arrest.

According to a senior judicial officer, the Supreme Court has recognised two distinct obligations for the police: the arrested person must be informed of the grounds and reasons for arrest, and a relative, friend, or person nominated by the arrested person must be informed of the arrest so that legal assistance can be arranged. The reasons for arrest must be communicated in writing in a language and manner comprehensible to the arrested person. The police must also secure evidence to show that these conditions have been met.

Any failure to comply with these provisions can result in bail for the accused, even in serious cases, including those under the Narcotic Drugs and Psychotropic Substances Act. The deliberate or otherwise failure of the police in complying with these provisions is a serious issue faced by trial courts, the judicial officer said.

Section 47 of the BNSS mandates that a person arrested be informed of the grounds of arrest and the right to bail, while Section 48 deals with the obligation to inform a relative or friend about the arrest. The Supreme Court has also held that an arrested person, if he so requests, is entitled to have a friend, relative, or other person interested in his welfare informed as soon as practicable. The police officer should inform the arrested person of this right, and the magistrate should satisfy himself that the requirement has been complied with.

The court reiterated that the grounds of arrest should be communicated to the arrested person, and that merely informing a relative about the arrest is not sufficient. The recent incidents highlight the need for stricter adherence to these legal safeguards to uphold the rule of law and ensure that the rights of the accused are protected.