Kerala High Court

Gireeh Kumar S vs State Of Kerala on 7 February, 2025

Author: P.V.Kunhikrishnan

Bench: P.V.Kunhikrishnan

                                                          2025:KER:10082



                IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                  PRESENT

             THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN

        FRIDAY, THE 7TH DAY OF FEBRUARY 2025 / 18TH MAGHA, 1946

                      BAIL APPL. NO. 1259 OF 2025

          CRIME NO.78/2025 OF Punalur Police Station, Kollam

        AGAINST THE ORDER/JUDGMENT DATED 21.01.2025 IN CRMC NO.12 OF

2025 OF DISTRICT COURT & SESSIONS COURT,KOLLAM


PETITIONER/S:

            GIREEH KUMAR S.
            AGED 54 YEARS
            S/O SOMANANDHAN NAIR, CHITHAMBARAM, VETTIPUZHA, PUNALUR
            P.O., KOLLAM DISTRICT, PIN - 691305


            BY ADV A.SANIL KUMAR


RESPONDENT/S:

    1       STATE OF KERALA
            REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF
            KERALA, ERNAKULAM, PIN - 682031

    2       STATION HOUSE OFFICER
            PUNALUR POLICE STATION, PUNALUR, KOLLAM DISTRICT,
            PIN - 691305

            BY ADV.
            NOUSHAD.K.A, SR PP


     THIS    BAIL   APPLICATION   HAVING    COME   UP   FOR   ADMISSION   ON
07.02.2025, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
                                                        2025:KER:10082
BAIL APPL. NO.1259 OF 2025

                                    2
                     P.V.KUNHIKRISHNAN, J
                   --------------------------------
                      B.A.No.1259 of 2025
                    -------------------------------
           Dated this the 07th day of February, 2025


                               ORDER

This Bail Application is filed under Section 482 of

Bharatiya Nagarik Suraksha Sanhita (BNSS).

2. Petitioner is an accused in Crime No.78/2025

of Punalur Police Station. The above case is registered against

the petitioner alleging offences punishable under Sections

6(A), 13, 17, 18(A) and 18(D) of the Kerala Money Lenders

Act, 1958 and Sections 9(1)(a) and 9(1)(b) of the Kerala

Prohibition of Charging Exorbitant Interest Act, 2012.

3. The prosecution allegation is that the defacto

complainant borrowed Rs.50,000/- on 08.08.2023 and another

sum of Rs.50,000/- on 15.08.2023 from the accused, who is

doing money lending business without any license, for the

educational purpose of his daughter, and after deducting the

interest amount of Rs.11,750/- thereon, the defacto 2025:KER:10082 BAIL APPL. NO.1259 OF 2025

complainant received a total amount of ₹88,250/- from the

accused. The defacto complainant issued two blank signed

cheque leaves and blank signed papers in favour of the

petitioner/accused as security for repayment of the said

amount on an assurance that on repaying the loan amount

and the interest, the same will be returned. Thereafter, on

20.12.2024 the defacto complainant repaid the entire amount

with interest, the petitioner/accused did not return the

security documents and demanded more interest. The

petitioner/accused threatened the defacto complainant that

unless more interest is given, cheques will be produced

before the bank for encashment after filling up more amounts

and thereafter issued lawyer notice to the defacto

complainant for ₹4,00,000/- upon dishonor of the cheque and

thereby cheated him. Thus, the accused is alleged to have

committed the aforesaid offences.

4. Heard counsel for the petitioner and the

Public Prosecutor.

2025:KER:10082 BAIL APPL. NO.1259 OF 2025

5. The counsel for the petitioner submitted that,

even if the entire allegations are accepted, no offence is

made out. The counsel submitted that the petitioner is ready

to abide by any conditions, if this Court grants him bail.

6. Public Prosecutor opposed the bail

application. He submitted that petitioner has got criminal

antecedents. He is involved in three other cases.

7. This Court considered the contention of the

petitioner and the Public Prosecutor. It is true that the

allegation against the petitioner is serious. But, the maximum

punishment that can be imposed to the offences alleged are

upto seven years. In Arnesh Kumar v. State of Bihar and

Another [(2014) 8 SCC 273] the Hon'ble 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 2025:KER:10082 BAIL APPL. NO.1259 OF 2025

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 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 Cr.P.C.

2025:KER:10082 BAIL APPL. NO.1259 OF 2025

8. Keeping in mind the above principle, this

Court perused the prosecution case once again. I am of the

considered opinion that the custodial interrogation of the

petitioner may not be necessary. Therefore, petitioner can be

granted bail after imposing stringent conditions.

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 important aspect of our constitutional mandate. The occasion to arrest an accused during investigation arises when custodial 2025:KER:10082 BAIL APPL. NO.1259 OF 2025

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 economic offence, it

is not a rule that bail should be denied in every case.

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:

2025:KER:10082 BAIL APPL. NO.1259 OF 2025

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.

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.

2025:KER:10082 BAIL APPL. NO.1259 OF 2025

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.

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