Kerala High Court

Ajith.A.K vs State Of Kerala on 7 February, 2025

Author: P.V.Kunhikrishnan

Bench: P.V.Kunhikrishnan

B.A.No.520 of 2025
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                                                                2025:KER:10326


              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. 520 OF 2025
  CRIME NO.29/2025 OF THALIPARAMBA POLICE STATION, KANNUR
PETITIONER(S)/ACCUSED:
               AJITH.A.K,
               AGED 43 YEARS
               S/O. V.P.GOVINDAN, VATTAPARA HOUSE,
               PALOTTUPALLI, MATTANNUR.P.O, KANNUR DISTRICT.,
               PIN - 670702


               BY ADVS.
               CIBI THOMAS
               SWARNA THOMAS
               ANUSREE K.


RESPONDENT(S)/STATE AND COMPLAINANT:

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

      2        THE STATION HOUSE OFFICER
               THALIPARAMBA POLICE STATION, THALIPARAMBA. P.O.,
               KANNUR DISTRICT, PIN - 670141

               BY ADV.
               SRI.NOUSHAD K.A., SENIOR PP



          THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON
07.02.2025,          THE    COURT   ON   THE   SAME   DAY   DELIVERED    THE
FOLLOWING:
 B.A.No.520 of 2025
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                     P.V.KUNHIKRISHNAN, J
                   --------------------------------
                         B.A.No.520 of 2025
                    -------------------------------
              Dated this the 07th day of February, 2025


                                   ORDER

This Bail Application is filed under Section 482 of the

Bharatiya Nagarik Suraksha Sanhita.

2. Petitioner is an accused in Crime No.29/2025

of Thaliparamba Police Station. The above case is registered

against the petitioner alleging offences punishable under

Sections 75(1)(iv) and 79 of the Bharatiya Nyaya Sanhita,

2023 (for short 'BNS').

3. The prosecution case is that, on 21.12.2024,

00.00 hrs and on 30.12.2024 at 9.30 a.m., the petitioner with

an intention to outrage the modesty of the defacto

complainant, wrote some insulting words on the wall of the

CSA Lab of the Kannur Engineering College, Dharmassala,

where the petitioner and the defacto complainant were

working. Hence it is alleged that the accused committed the

above said offences.

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4. Heard the learned counsel appearing for the

petitioner and the learned Public Prosecutor.

5. Counsel for the petitioner submitted that the

only non-bailable offence alleged against the petitioner is under

Section 75(1)(iv) of the BNS. The counsel submitted that no

such incident happened and there is no materials to show that

the petitioner committed the offence.

6. The Public Prosecutor opposed the bail

application. But the Public Prosecutor submitted that, as per

the instructions received from the Investigating Officer, no

criminal antecedents are alleged against the petitioner.

7. This Court considered the contentions of the

petitioner and the Public Prosecutor. The only non-bailable

offence alleged against the petitioner is under Section 75(1)(iv)

of the BNS. The maximum punishment that can be imposed

for the above offence is below 7 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

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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 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

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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."

Keeping in mind the above dictum laid down by the Apex Court,

this Court perused the prosecution case. I am of the

considered opinion that the prosecution can prove the case

through oral evidence and no custodial interrogation is

necessary. There can be a direction to the petitioner to

surrender before the Investigating Officer and after

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interrogation if the arrest of the petitioner 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 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

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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."

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

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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