Kerala High Court

Binu.D vs State Of Kerala on 14 February, 2025

Author: P.V.Kunhikrishnan

Bench: P.V.Kunhikrishnan

                                          2025:KER:12641
        IN THE HIGH COURT OF KERALA AT ERNAKULAM

                           PRESENT

      THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN

FRIDAY, THE 14TH DAY OF FEBRUARY 2025 / 25TH MAGHA, 1946

              BAIL APPL. NO. 1711 OF 2025

     CRIME NO.99/2025 OF VATTAPPARA POLICE STATION,

                      THIRUVANANTHAPURAM

PETITIONER/ACCUSED:
         BINU.D
         AGED 42 YEARS, S/O VASANTHA,
         RESIDING AT VILAYIL VEEDU, VETTINADU,
         VATTAPPARA P.O,
         THIRUVANANTHAPURAM DISTRICT,, PIN - 695 028

         BY ADVS.
         J.R.PREM NAVAZ
         PREETHA RANI M.S.
         SUMEEN S.
         MUHAMMED SWADIQ
         M.R.ALPHY GEORGE
         O.MOHAMED BASIL KOYA THANGAL


RESPONDENT/STATE:

         STATE OF KERALA
         REPRESENTED BY PUBLIC PROSECUTOR,
         HIGH COURT OF KERALA, PIN - 682 031

         BY ADV
         HRITHWIK C.S, SR.PP

     THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION
ON 14.02.2025, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
                                                    2025:KER:12641
B.A No.1711 of 2025
                                  2


                  P.V.KUNHIKRISHNAN, J
                --------------------------------
                   B.A.No.1711 of 2025
                 -------------------------------
        Dated this the 14th day of February, 2025


                             ORDER

This Bail Application is filed under Section 482 of

Bharatiya Nagarik Suraksha Sanhita.

2. Petitioner is the sole accused in Crime

No.99 of 2025 of Vattappara Police Station,

Thiruvananthapuram. The above case is registered

against the petitioner alleging offences punishable under

Sections 74, 115(2), 296(b), 324(4) of the Bharatiya

Nyaya Sanhita, 2023 (for short 'BNS').

3. The prosecution case is that the

petitioner, who is a member of Vettinad Ward, due to the

animosity that the defacto complainant refused to

remove the plants placed in front of her nursery namely

"Ethen Garden", on 31.01.2025 at about 10:30 a.m., the 2025:KER:12641

accused came to her nursery and after uttering obscene

words slapped her left cheek and kicked her after causing

mischief by destroying the plants worth Rs.25,000/-.

Hence, it is alleged that the accused committed the

offence.

4. Heard counsel for the petitioner and the

Public Prosecutor.

5. Counsel for the petitioner submitted that

the only non-bailable offence alleged is under Section 74

of BNS. The counsel submitted that even if the entire

allegations are accepted, the ingredients of Section 74 of

BNS is not attracted. The counsel submitted that the

petitioner is ready to abide any conditions, if this Court

grants him bail.

6. Public Prosecutor opposed the bail

application. The Public Prosecutor submitted that the

petitioner damaged the plants of the defacto

complainant, which is her livelihood.

2025:KER:12641

7. This Court considered the contention of

the petitioner and the Public Prosecutor. The only

non-bailable offence alleged is under Section 74 of BNS. A

perusal of the prosecution case would show that the

intention of the accused is to assault and commit

mischief. In such situation whether the ingredients of

Section 74 of BNS is attracted or not, is a matter to be

investigated by the Investigating Officer, I do not want to

make any observation about the same. But, considering

the facts and circumstances of the case, I think the

petitioner can be released on bail. Moreover, in this case

the petitioner trespassed into the nursery of the defacto

complainant and committed mischief, thereby the defacto

complainant sustained a loss of Rs.25,000/-. In the light of

the principle laid down by this Court in B.A Nos.427 and

831 of 2025, I think there can be direction to deposit the

damage alleged to be caused by the petitioner subject to

the completion of the investigation and trial, if any.

2025:KER:12641

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 2025:KER:12641

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."

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 2025:KER:12641

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:

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.

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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 her from

disclosing such facts to the Court or to

any police officer.

4. Petitioner shall not leave India