Kerala HC sets aside guidelines for producing accused before judicial officer after court hours

I

The Kerala High Court has set aside guidelines pertaining to producing an accused before judicial officers after court hours. At present, an accused shall be produced before a judicial officer between 10 a.m. and 5 p.m., and only under exceptional circumstances after 5 p.m.

A Division Bench of Justices V. Raja Vijayaraghavan and K.V. Jayakumar retained the provisions requiring prior intimation to the magistrate in cases of production after 5 p.m. The court directed the State government to issue fresh guidelines accordingly. 

The court was considering a public interest litigation (PIL) by lawyer P.S. Subeesh challenging the protocols issued by the State to be followed while producing accused persons before registered medical practitioners in hospitals or judicial officers for medico-legal examination.

The guidelines sought to regulate the circumstances and procedure to produce a mentally unstable or disturbed person or an accused before judicial officers, particularly outside court hours. The petitioner claimed that the guidelines restricted police officers from producing an accused before a magistrate, thus violating provisions of the Constitution which mandated production before a magistrate within 24 hours. 

The State contended that the guidelines only regulated the manner of production without affecting the rights of the accused. It emphasised that the protocol expressly allowed late-night production in exceptional circumstances, especially when the 24-hour limit was about to expire. 

The court narrated two different scenarios to examine the practical consequences of the guidelines. It stated that if an accused was arrested after 5 p.m., the investigating officer might hesitate to produce the accused immediately before a judicial officer with the guidelines in mind. The guidelines might encourage the police to wait until the following morning for the court hours to begin, which would delay the accused’s opportunity to seek legal assistance or oppose custody before a magistrate. 

The court also considered a scenario where a disclosure by the accused arrested at 4.30 p.m. could lead to recovery of evidence or stolen property. If the investigating officer was restrained by the guidelines to wait until court hours began again, it could derail the investigation in time-sensitive matters.