Vijayan v. State of Kerala

BAIL APPL. NO. 3813 OF 2025 **==> picture [57 x 57] intentionally omitted <==** 2025:KER:26550 # **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN** **THURSDAY, THE 27[TH] DAY OF MARCH 2025 / 6TH CHAITHRA, 1947** **BAIL APPL. NO. 3813 OF 2025** **CRIME NO.152/2025 OF Yeroor Police Station, Kollam** **PETITIONER/S:** **VIJAYAN AGED 62 YEARS VIJAYA VILASAM, PANAYAM, YEROOR, ANCHAL, KOLLAM., PIN - 691312** **BY ADVS. VISHNU BHUVANENDRAN B.ANUSREE VINEETHA A.A. ABDUL FATHAH NOYAL JOHNY SREELAKSHMI B.** ## **RESPONDENT/S:** **STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, PIN - 682031** ## **OTHER PRESENT:** **SR PP-HRITHWIK C S** BAIL APPL. NO. 3813 OF 2025 **==> picture [57 x 57] intentionally omitted <==** 2025:KER:26550 **THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 27.03.2025, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** BAIL APPL. NO. 3813 OF 2025 **==> picture [57 x 57] intentionally omitted <==** 2025:KER:26550 ## **P.V.KUNHIKRISHNAN, J** **–-------------------------------------** ## **B.A. No. 3813 of 2025** **-------------------------------------Dated this the 27[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 petitioner is an accused in Crime No. 152/2025 of Yeroor Police Station. The above case is registered against the petitioner alleging offences punishable under Secs. 126(1), 329(2), 115(2) and 118(1) of the Bharatiya Nyaya Sanhita, 2023 (BNS). 3. The prosecution case is that on 27.01.2025 at 5.30 pm, the defacto complainant was consuming alcohol from his house. The petitioner trespassed to his house and slapped on his face and when the defacto complainant fell down, the petitioner further hit him on his right hand, head BAIL APPL. NO. 3813 OF 2025 **==> picture [57 x 57] intentionally omitted <==** 2025:KER:26550 and back with the handle of a spade. Hence, it is alleged that the accused committed the offences. 4. Heard counsel for the petitioner and the Public Prosecutor. 5. The counsel for the petitioner submitted that the allegation against the petitioner is not correct. The petitioner is ready to abide any conditions, if this Court grants him bail. The Public Prosecutor opposed the bail application. But, the Public Prosecutor submitted that as per the report received by him, no criminal antecedents are alleged against the petitioner. 6. Admittedly, the only non-bailable offence allged against the petitioner is under Sec.118(1) of the BNS. The maximum punishment that can be imposed for the offences 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 BAIL APPL. NO. 3813 OF 2025 **==> picture [57 x 57] intentionally omitted <==** 2025:KER:26550 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 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 BAIL APPL. NO. 3813 OF 2025 **==> picture [57 x 57] intentionally omitted <==** 2025:KER:26550 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.” 7. Keeping in mind the above principle, this Court considered the prosecution case. Considering the facts and circumstances of this case, I think the custodial interrogation of the petitioner is not necessary. The petitioner can be directed to surrender before the investigating officer. After interrogation, if the arrest is recorded, there can be a direction to release the petitioner on bail, after imposing stringent conditions. 8. 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 BAIL APPL. NO. 3813 OF 2025 **==> picture [57 x 57] intentionally omitted <==** 2025:KER:26550 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. 9. 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 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 BAIL APPL. NO. 3813 OF 2025 **==> picture [57 x 57] intentionally omitted <==** 2025:KER:26550 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.” ## 10. 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. 11. 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 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 BAIL APPL. NO. 3813 OF 2025 **==> picture [57 x 57] intentionally omitted <==** 2025:KER:26550 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 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/her 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 BAIL APPL. NO. 3813 OF 2025 **==> picture [57 x 57] intentionally omitted <==** 2025:KER:26550 an offence similar to the offence of which he is accused, or suspected, of the commission of which he is 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 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]. 7. 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 BAIL APPL. NO. 3813 OF 2025 **==> picture [57 x 57] intentionally omitted <==** 2025:KER:26550 also. 8. If any of the above conditions are violated by the petitioner, 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