kerala high court

Kerala High Court: In an application for bail under Section 438 of Criminal Procedure Code, 1973 (‘CrPC’), P.V. Kunhikrishnan, J. clarified that the Police Officer should contact the Prosecution Officer before arresting an accused to confirm regarding any interim order passed by the Court and also, directed the State Police Chief to issue directions in this regard.

The Court pointed out that when the bail application was filed, the Court had passed an interim order restricting arrest of the petitioner, but the petitioner was arrested by the Station House Officer on 29-4-2023, while the said interim order was still in force.

The said Station House Officer, when summoned by the Court for violating the Court order restricting the arrest, acknowledged having committed a mistake in arresting the petitioner and prayed for indulgence.

It was disclosed before the Court that there was no posting on 16-1-2023 by the Registry, after which the petitioner was arrested. Thus, the Court did not take any action against the Station House Officer but pointed out the lack on part of the said Officer for not verifying with the Prosecution before proceeding with the arrest.

The Court said 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. 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.” It further directed the State Police Chief to issue appropriate directions to all the police stations in the State to convey the same.

The Court noted that the instant bail application is infructuous since it was filed under Section 438 of CrPC and the petitioner has already been arrested. The Court left it to the petitioner to file an application for bail under Section 439 of CrPC before the Court of suitable jurisdiction which has to be decided in light of the fact that there was an interim order passed by the High Court.

[Niyasali v. State of Kerala, 2023 SCC OnLine Ker 3282, Order dated 23-5-2023]

Order by: Justice P.V. Kunhikrishnan

Advocates who appeared in this case :

For Petitioner: Advocate Rajesh Kumar T.K., Advocate Manoj V. George, Advocate T.N. Bindu, Advocate Aswin K.R., Advocate Mathews Benny, Advocate Keerthana. V., Advocate Thushara Paily.

Buy Criminal Procedure Code, 1973  HERE

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