If Bail Application Is Pending, Police Officer Must Verify If Interim Order Is In Force Before Making Any Arrest: Kerala HC
The Kerala High Court recently observed that when a bail application is pending before a court of law, it is not proper to arrest an accused when an interim order is in force, as it is the duty of the Police Officer to verify the same with the prosecutor.
“…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…”, a bench of Justice P.V. Kunhikrishnan observed.
In the matter, the bail application was filed under Section 438 CrPC, alleging that despite an interim order of the Court was in force, the petitioner was arrested by the Station House Officer, Thamarassery Police Station.
Therefore, for violating the interim order, on May 22, 2023, the Court then directed the Station House Officer, Thamarassery to appear in person before the Court on May 23, 2023.
On appearance, the Station House Officer submitted that he committed a mistake in arresting the petitioner and further prayed for indulgence.
However, the de facto complainant submitted that there is no interim order restraining the arrest as on the date of arrest. Further highlighted that the petitioner was arrested on April 29, 2023, as when the bail application came up for consideration on December 22, 2022, the Court in its order noted, “Post on 16.01.2023. Interim order is extended till then.”
The Court therefore noted that the counsel for the petitioner did not mention to the court about the mistake on posting the case on January 16, 2023 by the Registry.
Observing that, the Court did not see any reason to take any action against the Station House Officer. But was of the opinion as the Station House Officer conceded to the fact, that he did not verify with the office of the prosecutor before arresting the accused cannot be ignored.
Therefore, noting that the bail application has become infructuous as it is filed under Section 438 of CrPC and the petitioner is already arrested it observed, “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”.
Cause Title: Niyasali v. State Of Kerala [Neutral Cittation No.: 2023:KER:26889]