The Kerala High Court has set aside government guidelines that treated the production of arrested persons before a Judicial Officer after 5 PM as an exceptional circumstance, holding that administrative protocols cannot impede the prompt production of an accused before a Magistrate. A Division Bench of Justice Raja Vijayaraghavan V and Justice K. V. Jayakumar ruled that the guidelines could discourage timely judicial scrutiny and undermine constitutional safeguards governing arrest and detention.
The Bench was hearing a public interest litigation filed by advocate P.S. Subeesh challenging provisions of the Kerala Government’s additional medico-legal protocol issued in September 2023. The guidelines initially required accused persons to be produced before Judicial Officers, as far as possible, between 10 AM and 5 PM. Production after 5 PM required prior intimation by a superior police officer, while production after 7 PM required the presence of a prosecutor to certify the exceptional circumstances. The protocol also provided for monitoring by Chief Judicial Magistrates.
During the pendency of the petition, the State modified the guidelines in September 2026, retaining the preference for production between 10 AM and 5 PM and requiring prior intimation for production after that time. The petitioner argued that the restrictions could discourage police officers from producing arrested persons promptly, despite the constitutional and statutory requirement to produce them before a Magistrate within 24 hours.
The Bench emphasised that Article 22(2) of the Constitution and Section 58 of the Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023, prescribe the outer limit for production before a Magistrate and do not authorise investigating agencies to defer production until that deadline approaches. It noted that timely production enables an arrested person to obtain legal assistance, challenge the legality of the arrest, oppose police remand and seek appropriate relief. The Court observed:
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“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.”
The Bench explained that the guidelines could have unintended consequences in practice. An investigating officer who makes an arrest after 5 PM might hesitate to produce the accused immediately because of the requirement to justify late-hour production. Similarly, time-sensitive investigative steps, including the recovery of weapons or stolen property following a disclosure, could be deferred to avoid procedural complications. The Court held that such practical effects had to be considered while examining the constitutional validity of the protocol.
The High Court clarified that the State could adopt reasonable measures to ensure the safety of Judicial Officers and facilitate orderly production of accused persons. However, such measures could not subordinate constitutional safeguards to administrative convenience or unnecessarily impede lawful investigations.
Allowing the petition, the Bench set aside the modified guidelines to the extent that they preferred production between 10 AM and 5 PM and treated production after 5 PM as permissible only in exceptional circumstances. It, however, upheld the requirement of prior intimation to the concerned Magistrate when an accused is produced after 5 PM and directed the State to issue fresh guidelines in accordance with its findings.
