Before Arresting Accused Police Must Verify With Prosecutor's Office If Any Interim Order Subsists In Pending Bail Plea: Kerala High Court

The Kerala High Court on Tuesday declared that it is the duty of every Police Officer to contact the office of the Prosecutor before arresting an accused, when a bail application is pending before a court of law, to verify whether there is any interim order passed by the Court.

Justice P.V. Kunhikrishnan observed,

"Without verifying the same from the office of the prosecutor, it is not proper on the part of the Police Officer to arrest an accused when an interim order is in force." 

The State Police Chief was thereby directed to issue appropriate directions to all the police stations in this regard. 

The Court made the above observations in an anticipatory bail application filed under Section 438 Cr.P.C. The counsels for the petitioner submitted that the petitioner was arrested by the Station House Officer, Thamarassery Police Station, when the interim order not to arrest the petitioner was in force. The Court thereupon directed the Station House Officer to be present before it on May 23, 2023. 

The Station House Officer, on so appearing before the Court, conceded that he had committed a mistake in arresting the petitioner and prayed for indulgence. 

On the other hand, counsel for the de facto complainant, who is the Manager of KSFE, submitted that there was no interim order restraining the arrest as on the date of arrest of the petitioner. 

The Court in this case noted that the petitioner had been arrested on April 29, 2023. It noted that when the bail application had initially been taken up for hearing on December 22, 2022, the Court had passed an order, directing the case to be posted on January 16, 2023, and extended the interim order till the said date. However, the Court noted that there was no posting on the said date in January. 

The Court was therefore of the view that it saw no reason to take any action against the Station House Officer. However, taking note of the Station House Officer's submission that he had not verified with the office of the Prosecutor before arresting the accused while the bail application was pending before the Court, the Court made the aforementioned directions. 

"Now this bail application is infructuous. The bail application is filed under Section 438 of Cr.P.C and the petitioner is already arrested. The petitioner is free to file appropriate application before the jurisdictional court under Section 439 of Cr.P.C. If such an application is filed, the jurisdictional court will consider the bail application in the light of the fact that there was an interim order passed by this Court," the Court held while disposing the bail plea. 

The petitioner was represented by Advocates Rajesh Kumar T.K., Manoj V. George, T.N. Bindu, Aswin K.R., Mathews Benny, Keerthana V., and Thushara Paily. 

Case Title: Niyasali v. State of Kerala & Anr. 

Citation: 2023 LiveLaw (Ker) 232

Click Here To Read/Download The Order