GOPESH v. State of Kerala

BA No.4477 of 2025 1 **==> picture [57 x 58] intentionally omitted <==** ## `2025:KER:30591` ## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN ``` ``` TUESDAY, THE 8[TH] DAY OF APRIL 2025 / 18TH CHAITHRA, 1947 ``` ``` BAIL APPL. NO. 4477 OF 2025 ``` ``` CRIME NO.88/2025 OF Medical College Police Station, Kozhikode ``` ``` AGAINST THE ORDER/JUDGMENT DATED 12.03.2025 IN CRMC NO.229 OF 2025 OF ADDITIONAL SESSIONS COURT (ADHOC)-II, ``` ``` KOZHIKODE ``` ## **`PETITIONER( S )/ACCUSED: GOPESH`** ``` AGED 36 YEARS, S/O. GOPINATHAN,AKKANARI,MEETHAL HOUSE, KOMMERI P.O, KOZHIKODE, PIN – 673 007 ``` ``` BY ADVS. T.D.SUSMITH KUMAR JAYKAR.K.S. VANDANA A. ANJALI R. MENON ALMY ANIL C.SIVADAS ``` ## **`RESPONDENT( S )/STATE/COMPLAINANT:`** ``` 1STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, PIN - 682031 ``` ``` 2THE STATION HOUSE OFFICER MEDICAL COLLEGE POLICE STATION, MEDICAL COLLEGE P.O, KOZHIKODE, PIN - 673007 ``` ## **`BY ADV.:`** ## **`SR PP-NOUSHAD K A`** ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 08.04.2025, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` BA No.4477 of 2025 2 **==> picture [57 x 58] intentionally omitted <==** ``` 2025:KER:30591 ``` ## **P.V.KUNHIKRISHNAN, J. -------------------------------------------** ## **BA No.4477 of 2025** **-------------------------------------------Dated this the 08[th] day of April, 2025** ## **O R D E R** This Bail Application is filed under Section 482 of Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023. 2. The petitioner is an accused in Crime No.88/2025 of Medical College Police Station, Kozhikode. The above case is registered against the petitioner alleging offences punishable under Sections 118(1) of the Bharatiya Nyaya Sanhita (BNS), 2023. 3. The prosecution case is that, on 28.01.2025 at about 08.45 PM, one Mr. Nitheesh who is the defacto complainant herein came to his house and at that time, the accused attacked him and BA No.4477 of 2025 3 **==> picture [57 x 58] intentionally omitted <==** ``` 2025:KER:30591 ``` caused injuries using a knife and iron pipe. Hence, it is alleged that the accused committed the offence. 4. Heard the learned counsel appearing for the petitioner and the learned Public Prosecutor. 5. The counsel for the petitioner submitted that the only non-bailable offence alleged against the petitioner is under Section 118(1) of the BNS. The counsel also submitted that the petitioner is ready to abide any condition imposed by this Court, if this Court grants him bail. 6. The Public Prosecutor opposed the bail application. But, Public Prosecutor submitted that, no criminal antecedents is alleged against the petitioner, as per the report received by him from the Investigating Officer. 7. This Court considered the contentions of the petitioner and the Public Prosecutor. It is true that the allegation against the petitioner is serious. BA No.4477 of 2025 4 **==> picture [57 x 58] intentionally omitted <==** ## `2025:KER:30591` But, the fact remains that the only non-bailable offence alleged against the petitioner is under Section 118(1) of the BNS. The maximum punishment that can be imposed for the above offence is three years. The Apex Court in _**Arnesh Kumar v. State of Bihar and Another**_ [2014 (8) SCC 273] observed that, even while considering an application for anticipatory bail, the court should take a lenient view if the punishment that can be imposed is only up to 7 years. It will be better to extract the relevant portion of the above judgment: _“7. xxxxxxxxx_ _7.1. From a plain reading of the aforesaid provision, it is evident that all 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_ BA No.4477 of 2025 5 **==> picture [57 x 58] intentionally omitted <==** ## `2025:KER:30591` _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 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 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 BA No.4477 of 2025 6 **==> picture [57 x 58] intentionally omitted <==** ## `2025:KER:30591` 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.” 8. Keeping in mind the above dictum laid down by the Apex Court, this Court perused the prosecution case once again. I think, custodial interrogation of the petitioner is not necessary. The petitioner can be directed to surrender before the Investigating Officer. After interrogation, if arrest is BA No.4477 of 2025 7 **==> picture [57 x 58] intentionally omitted <==** ``` 2025:KER:30591 ``` recorded, there can be a direction to release the petitioner on bail. 9. 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. 10. 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 BA No.4477 of 2025 8 **==> picture [57 x 58] intentionally omitted <==** ## `2025:KER:30591` 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 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.” ## 11. In _**Manish Sisodia v. Central Bureau of**_ _**Investigation** [2023 KHC 6961],_ the Apex Court observed that, even if the allegation is one of grave BA No.4477 of 2025 9 **==> picture [57 x 58] intentionally omitted <==** ``` 2025:KER:30591 ``` economic offence, it is not a rule that bail should be denied in every case. Considering the dictum laid down in the above decisions and considering the facts and circumstances of this case, this Bail Application is allowed with the following conditions: _1. The petitioner shall appear before the Investigating Officer within two weeks from today and shall undergo interrogation._ _2. After interrogation, if the Investigating Officer propose to arrest the petitioner, he 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._ BA No.4477 of 2025 10 **==> picture [57 x 58] intentionally omitted <==** ``` 2025:KER:30591 ``` _3. The petitioner shall appear before the Investigating Officer for interrogation as and when required. The petitioner 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 from disclosing such facts to the Court or to any police officer._ _4. Petitioner shall not leave India without permission of the jurisdictional Court._ _5. Petitioner shall not commit an offence similar to the offence of which he is accused, or suspected, of the commission of which he is suspected._ BA No.4477 of 2025 11 **==> picture [57 x 58] intentionally omitted <==** ``` 2025:KER:30591 ``` _6. The observations and findings 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._ _7. 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 petitioner even while the petitioner is 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]._ _8. If any of the above conditions are_ BA No.4477 of 2025 12 **==> picture [57 x 58] intentionally omitted <==** ``` 2025:KER:30591 ``` _violated by the petitioner the jurisdictional Court can cancel the bail in accordance to law, even though this 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._ nvj **Sd/P.V.KUNHIKRISHNAN JUDGE**