Darvin Joseph and Sujo Kennedy v. State of Kerala

BAIL APPL. NO. 3969 OF 2025 1 **==> picture [58 x 58] intentionally omitted <==** 2025:KER:27185 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN** **FRIDAY, THE 28[TH] DAY OF MARCH 2025 / 7TH CHAITHRA, 1947** ## **BAIL APPL. NO. 3969 OF 2025** **CRIME NO.262/2025 OF Pallithottam Police Station, Kollam** ## **PETITIONER/S:** **1 DARVIN JOSEPH AGED 25 YEARS S/O JOSEPH, DARVIN BHAVANAM, NEENDAKARA PO, KOLLAM, PIN - 691582** **2 SUJO KENNEDY AGED 25 YEARS S/O JOHN KENNEDY, JOHN’S DALE, PERUMALIL KIZHAKKATHIL, PNRA-88, THIRUMULLAVARAM PO, KOLLAM, PIN - 691012** **BY ADV SREERAJ M.D.** **RESPONDENT/S:** **STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, PIN - 682031** ## **OTHER PRESENT:** **SR PP-NOUSHAD K A** **THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 28.03.2025, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** BAIL APPL. NO. 3969 OF 2025 2 **==> picture [58 x 58] intentionally omitted <==** 2025:KER:27185 ## **P.V.KUNHIKRISHNAN, J** **–-------------------------------------** **B.A. No. 3969 of 2025** **-------------------------------------Dated this the 28[th] day of March, 2025** ## **O R D E R** This Bail Application is filed under Section 482 of Bharatiya Nagarik Suraksha Sanhita. 2. The petitioners are the accused in Crime No. 262/20225 of Pallithottam Police Station. The above case is registered against the petitioners alleging offences punishable under secs. 121(1), 126(2), 296(b) of the Bharatiya Nyaya Sanhita, 2023 (BNS). Subsequently, it is submitted that the offence under Sec. 121(1) BNS is deleted. But, it is submitted that Sec. 118(1) is added. 3. The defacto complainant is a Civil Excise Officer. It is alleged that on 03.03.2025 at 12.30 am, the defacto complainant was wrongfully restrained by the accused BAIL APPL. NO. 3969 OF 2025 3 **==> picture [58 x 58] intentionally omitted <==** 2025:KER:27185 and assaulted him. It is alleged that, the accused deterred him from discharging the official duty. 4. Heard counsel for the petitioners and the Public Prosecutor. 5. Admittedly, the defacto complainant was not in uniform. Therefore, Sec. 121(1) BNS is deleted. But, now the only non-bailable offence alleged is under sec. 118(1). The maximum punishment that can be imposed for the offence alleged is 3 years. In **Arnesh Kumar v. State of Bihar and another [(2014) 8 SCC 273]** the Apex Court observed like this : “7.1. From a plain reading of the aforesaid provision, it is evident that a person accused of an offence punishable with imprisonment for a term which may be less than seven years or which may extend to seven years with or without fine, cannot be arrested by the police officer only on his satisfaction that such person had committed the offence punishable as aforesaid. A police officer before arrest, in such cases has to be further satisfied that such arrest is necessary to prevent such person from committing any further offence; or for proper investigation of the case: or to prevent the accused from causing the evidence of the offence to BAIL APPL. NO. 3969 OF 2025 4 **==> picture [58 x 58] intentionally omitted <==** 2025:KER:27185 disappear; or tampering with such evidence in any manner; or to prevent such person from making any inducement, threat or promise to a Witness so as to dissuade him from disclosing such facts to the court or the police officer; or unless such accused person is arrested, his presence in the court whenever required cannot be ensured. These are the conclusions, which one may reach based on facts. 7.2. The law mandates the police officer to state the facts and record the reasons in writing which led him to come to a conclusion covered by any of the provisions aforesaid. while making such arrest. The law further requires the police officers to record the reasons in writing for not making the arrest. 7.3. In pith and core, the police officer before arrest must put a question to himself, why arrest? Is it really required? What purpose it will serve? What object it will achieve? It is only after these questions are addressed and one or the other conditions as enumerated above is satisfied, the power of arrest needs to be exercised. In fine, before arrest first the police officers should have reason to believe on the basis of information and material that the accused has committed the offence. Apart from this, the police officer has to be satisfied further that the arrest is necessary for one or the more purposes envisaged by sub-clauses (a) to (e) of clause (1) of Section 41 CrPC.” BAIL APPL. NO. 3969 OF 2025 5 **==> picture [58 x 58] intentionally omitted <==** 2025:KER:27185 6. Keeping in mind the above dictum, this Court considered the facts of the case. I think the petitioners can be released on bail, after imposing stringent conditions. 7. Moreover, it is a well accepted principle that the bail is the rule and the jail is the exception. The Hon'ble Supreme Court in **Chidambaram. P v Directorate of Enforcement [2019 (16) SCALE 870],** after considering all the earlier judgments, observed that, the basic jurisprudence relating to bail remains the same inasmuch as the grant of bail is the rule and refusal is the exception so as to ensure that the accused has the opportunity of securing fair trial. 8. Recently the Apex Court in **Siddharth v State of Uttar Pradesh and Another [2021(5)KHC 353]** considered the point in detail. The relevant paragraph of the above judgment is extracted hereunder. “12. We may note that personal liberty is an important aspect of our constitutional mandate. The occasion to arrest an accused during investigation arises when custodial investigation becomes necessary or it is a heinous crime or where there is a possibility of influencing the witnesses or BAIL APPL. NO. 3969 OF 2025 6 **==> picture [58 x 58] intentionally omitted <==** 2025:KER:27185 accused may abscond. Merely because an arrest can be made because it is lawful does not mandate that arrest must be made. A distinction must be made between the existence of the power to arrest and the justification for exercise of it. (Joginder Kumar v. State of UP and Others (1994 KHC 189: (1994) 4 SCC 260: 1994 (1) KLT 919: 1994 (2) KLJ 97: AIR 1994 SC 1349: 1994 CriLJ 1981)) If arrest is made routine, it can cause incalculable harm to the reputation and self-esteem of a person. If the Investigating Officer has no reason to believe that the accused will abscond or disobey summons and has, in fact, throughout cooperated with the investigation we fail to appreciate why there should be a compulsion on the officer to arrest the accused.” 9. In **Manish Sisodia v. Central Bureau of** **Investigation [2023 KHC 6961]** , the Apex Court observed that even if the allegation is one of grave economic offence, it is not a rule that bail should be denied in every case. 10. Considering the dictum laid down in the above decision and considering the facts and circumstances of this case, this Bail Application is allowed with the following directions: 1. The petitioners shall appear BAIL APPL. NO. 3969 OF 2025 7 **==> picture [58 x 58] intentionally omitted <==** 2025:KER:27185 before the Investigating Officer within two weeks from today and shall undergo interrogation. 2. After interrogation, if the Investigating Officer propose to arrest the petitioners, they shall be released on bail on executing a bond for a sum of Rs.50,000/(Rupees Fifty Thousand only) with two solvent sureties each for the like sum to the satisfaction of the arresting officer concerned. 3. The petitioners shall appear before the Investigating Officer for interrogation as and when required. The petitioners shall co-operate with the investigation and shall not, directly or indirectly make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him/her BAIL APPL. NO. 3969 OF 2025 8 **==> picture [58 x 58] intentionally omitted <==** 2025:KER:27185 from disclosing such facts to the Court or to any police officer. 4. Petitioners shall not leave India without permission of the jurisdictional Court. 5. Petitioners shall not commit an offence similar to the offence of which they are accused, or suspected, of the commission of which they are suspected. 6. Needless to mention, it would be well within the powers of the investigating officer to investigate the matter and, if necessary, to effect recoveries on the information, if any, given by the petitioners even while the petitioners are on bail as laid down by the Hon'ble Supreme Court in **Sushila Aggarwal v. State (NCT of Delhi) and another** [2020 (1) KHC 663]. 7. The observations and findings BAIL APPL. NO. 3969 OF 2025 9 **==> picture [58 x 58] intentionally omitted <==** 2025:KER:27185 in this order is only for the purpose of deciding this bail application. The principle laid down by this Court in **Anzar Azeez v.** **State of Kerala** [2025 SCC OnLine KER 1260] is applicable in this case also. 8. If any of the above conditions are violated by the petitioners, the jurisdictional Court can cancel the bail in accordance to law, even though the bail is granted by this Court. The prosecution and the victim are at liberty to approach the jurisdictional Court to cancel the bail, if any of the above conditions are violated. **Sd/P.V.KUNHIKRISHNAN JUDGE** SKS