Kerala High Court strikes down 5 PM guideline that made production of an arrested person before a Magistrate after court hours an exceptional step, holding that an executive protocol cannot dilute the safeguards in Article 22(2) of the Constitution and Section 58 of the BNSS.
Kochi: The Kerala High Court has set aside the part of the State’s guidelines that told police to produce an accused before a Judicial Officer, as far as possible, between 10 a.m. and 5 p.m., and allowed production after 5 p.m. only in exceptional circumstances, holding that such a protocol risks subordinating constitutional safeguards to administrative convenience [Adv. P.S. Subeesh v. State of Kerala and Others].
A Division Bench of Justice Raja Vijayaraghavan V and Justice K. V. Jayakumar allowed the public interest petition on October 23, 2026. The Bench upheld only the requirement of prior intimation to the Magistrate when an accused is produced after 5 p.m., and directed the State to issue fresh guidelines in line with its findings.
How the case reached the Court
The guidelines came in G.O.(Ms) No. 202/2023/Home dated September 21, 2023, with an annexure of additional medico-legal protocol for producing persons before doctors and Judicial Officers. According to the State’s counter affidavit, they were framed after the death of Dr. Vandana Das, a house surgeon at the Taluk Hospital, Kottarakkara, when the High Court directed the Government to evolve a protocol to protect doctors and health workers and to hear stakeholders such as the Kerala Judicial Officers Association and the Indian Medical Association.
The petitioner, a lawyer, challenged Clauses 17 to 21. Clause 18 said the accused shall be produced before Judicial Officers, as far as possible, between 10 a.m. and 5 p.m. Clause 19 required prior intimation to the Judicial Officer, and the investigating officer’s presence to explain the circumstances, for production after 5 p.m. Clause 20 required a Prosecutor to accompany the police after 7 p.m., and Clause 21 made the Chief Judicial Magistrates monitor late production through monthly reports. He argued that the clauses chilled the duty to produce an arrested person promptly under Sections 57 and 58 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) and Article 22(2).
While the petition was pending, the State modified Clauses 18 and 19 by G.O.(Ms) No. 173/2026/Home dated September 24, 2026. Clause 18 now required production between 10 a.m. and 5 p.m. “strictly adhering to the 24 hours time limit prescribed under Section 58 of BNSS”, and Clause 19 kept only prior intimation to the Judicial Officer for late production. The State maintained that the guidelines do not dilute Article 22(2), that “as far as possible” is a direction and not a ban, and that late-night production remains open in exceptional circumstances. The petitioner replied that the modified clauses still placed a presumption of delay on police and prosecutors who produce an accused after 5 p.m.
The legal position
Article 22(2) requires every person arrested and detained to be produced before the nearest Magistrate within twenty-four hours, excluding journey time. Section 58 of the BNSS carries the same limit forward from Section 57 of the Code of Criminal Procedure. The Bench stressed that the limit is a ceiling and not an entitlement:
“It needs to be borne in mind that these are outer limits, and not a general entitlement to keep an arrested person in custody until the deadline.”
The Court drew on the Supreme Court’s rulings in Sheela Barse and Joginder Kumar, Prabir Purkayastha, Jaskaran Jeet Singh Deol v. State of Punjab and Mihir Rajesh Shah v. State of Maharashtra to hold that an arrested person’s rights, including legal assistance and an effective chance to oppose remand, arise from the moment of arrest and cannot be postponed for administrative convenience. It also noted that Section 187 BNSS requires the Magistrate, at remand, to examine whether the safeguards on arrest were followed. At the same time, it recalled that constitutional safeguards must not become a procedural impediment to lawful investigation, and that a balance has to be struck.
Two practical scenarios
Testing the clauses by how they would operate, the Bench considered an accused arrested at or after 5 p.m. If the impending expiry of twenty-four hours is the exceptional circumstance, it said, the practical effect may be to encourage police to wait until the next morning. That may still fall within the outer limit, but it would delay the accused’s opportunity to obtain legal assistance, challenge the arrest and seek bail. It then took an accused arrested at about 4:30 p.m. who makes a disclosure leading to a recovery, where the investigating officer may rush to produce him before 5 p.m. and defer time-sensitive steps, to the possible detriment of the investigation.
Neither consequence is mandated by the words of the guidelines, the Court accepted, but their validity must be judged by how they operate in practice:
“The expressions “as far as possible” and “exceptional circumstances”, when read together, may create a disincentive to production outside ordinary court hours, even where the circumstances warrant immediate production.”
What the Court held
The Bench said the reference to the twenty-four-hour limit did not answer the objection, because Article 22(2) and Section 58 fix the maximum period and do not let the investigating agency defer production until it is about to expire. It accepted that the State may adopt reasonable measures for the safety of Judicial Officers, but only if they operate consistently with the duty to produce an arrested person without unnecessary delay. The Court also pointed out that the modified guideline referred to Article 22(1), whereas the provision governing production before a Magistrate is Article 22(2).
“An executive protocol cannot dilute the safeguards guaranteed by the Constitution and the governing statute, whether directly or through procedural arrangements that have the effect of discouraging compliance with them.”
The directions
The modified guidelines of September 24, 2026, to the extent they stipulate that an accused shall, as far as possible, be produced between 10 a.m. and 5 p.m. and that production after 5 p.m. shall be permitted only in exceptional circumstances, were held not constitutionally valid and set aside. The provision requiring prior intimation to the Magistrate for production after 5 p.m. was upheld, and the State was directed to issue fresh guidelines in accordance with the judgment.
Why the judgment matters
The ruling treats the twenty-four-hour rule as a long-stop and not a working schedule. Court timings, the Bench held, cannot be the yardstick for when an arrested person meets a Magistrate, and a protocol that makes after-hours production look like an exception can discourage the promptness Article 22 is meant to secure.
It also shows the limits of safety-driven administrative guidelines: they may regulate coordination and accountability, but not at the price of timely judicial scrutiny, access to a lawyer and the ability to oppose remand. The State must now frame a fresh protocol, keeping the prior-intimation requirement and measures for the safety of Judicial Officers within those bounds.
Case Title: Adv. P.S. Subeesh v. State of Kerala and Others [WP(PIL) No. 165 of 2025]
Bench: Justice Raja Vijayaraghavan V and Justice K. V. Jayakumar, Kerala High Court
Date of Judgment: October 23, 2026
Appearances: Mr. T.K. Sandeep, Advocate, for the petitioner; Mr. Asif Ali, Director General of Prosecution, Ms. Laliza T.Y., Senior Government Pleader, and Mr. Rasheed C. Nooranad, Special Government Pleader, for the respondents