Kerala High Court
Sanal Krishna vs State Of Kerala on 29 January, 2025
Author: P.V.Kunhikrishnan
Bench: P.V.Kunhikrishnan
BAIL APPL. NO. 760 OF 2025 1
2025:KER:6943
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN
WEDNESDAY, THE 29TH DAY OF JANUARY 2025 / 9TH MAGHA, 1946
BAIL APPL. NO. 760 OF 2025
CRIME NO.1092/2024 OF Kodakara Police Station, Thrissur
AGAINST THE ORDER/JUDGMENT DATED 09.01.2025 IN CRMP
NO.14899 OF 2024 OF JUDICIAL MAGISTRATE OF FIRST CLASS
,IRINJALAKUDA
PETITIONER/S:
SANAL KRISHNA
AGED 20 YEARS
SON OF MANI, KARAPPARAMBIL HOUSE, KAVIL DESOM,
KODAKARA, THRISSUR, PIN - 680684
BY ADVS.
JITHIN BABU A
ARUN SAMUEL
ANOOD JALAL K.J.
RESPONDENT/S:
STATE OF KERALA
REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF
KERALA, PIN - 682031
SRI.NOUSHAD KA, SR.PP
THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON
29.01.2025, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
BAIL APPL. NO. 760 OF 2025 2
2025:KER:6943
P.V.KUNHIKRISHNAN, J
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B.A. No. 760 of 2025
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Dated this the 29th day of January, 2025
ORDER
This Bail Application is filed under Section 483 of
Bharatiya Nagarik Suraksha Sanhita.
2. Petitioner is the accused in Crime
No.1092/2024 of Kodakara Police Station. The above case is
registered alleging offences punishable under Sections
137(1), 137(2) of the Bharatiya Nyaya Sanhita, 2023 (for
short 'BNS') and Sec 77 of the Juvenile Justice (Care and
Protection of Children) Act, 2015 (for short 'JJ Act').
3. The prosecution case is that on 20.12.2024 at
8 pm, the accused Nos. 1 and 2 along with one CCL (Child in
conflict with law) in furtherance of their common intention,
instigated the survivor aged only 15 years, while she was
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under the guardianship of her parents and kidnapped her to
Chalakudy and Kodakara in bike. Thereafter on 21.12.2024
at 3.00 am brought the survivor to the house of the accused
No.2 and gave her intoxicating liquor and other narcotic
drugs, thereby made her unconscious. Hence, it is alleged
that the accused committed the offences. The petitioner was
arrested on 22.12.2024.
4. Heard counsel for the petitioner and the
Public Prosecutor.
5. The counsel for the petitioner submitted that
the only non bailable offence alleged against the petitioner is
under Sec.77 of the JJ Act. The counsel submitted that the
allegation against the petitioner is not correct. The petitioner
and the survivor were friends. There is no allegation of
sexual harassment. The counsel submitted that the petitioner
is ready to abide any conditions, if this Court grants him bail.
The Public Prosecutor opposed the bail application. The
Public Prosecutor submitted that the petitioner is involved in
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an offence under NDPS Act.
6. This Court considered the contentions of the
petitioner and the Public Prosecutor. It is true that the
allegation against the petitioner is serious. But the only non-
bailable offence alleged against the petitioner is under Sec.
77 of the JJ Act. The maximum punishment that can be
imposed for the above offence is 7 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
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
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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
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 and also
considering the fact that the petitioner was arrested on
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22.12.2024, I think the petitioner can be released 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. Moreover, in Jalaluddin Khan v. Union of
India [2024 KHC 6431], the Hon'ble Supreme Court
observed that:
"21. Before we part with the Judgment, we must
mention here that the Special Court and the High
Court did not consider the material in the charge
sheet objectively. Perhaps the focus was more on
the activities of PFI, and therefore, the
appellant's case could not be properly
appreciated. When a case is made out for a grant
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of bail, the Courts should not have any hesitation
in granting bail. The allegations of the
prosecution may be very serious. But, the duty of
the Courts is to consider the case for grant of bail
in accordance with the law. "Bail is the rule and
jail is an exception" is a settled law. Even in a
case like the present case where there are
stringent conditions for the grant of bail in the
relevant statutes, the same rule holds good with
only modification that the bail can be granted if
the conditions in the statute are satisfied. The
rule also means that once a case is made out for
the grant of bail, the Court cannot decline to
grant bail. If the Courts start denying bail in
deserving cases, it will be a violation of the rights
guaranteed under Art.21 of our Constitution."
(underline supplied)
10. In Manish Sisodia v. Directorate of
Enforcement [2024 KHC 6426], also the Hon'ble Supreme
Court observed that:
"53. The Court further observed that, over a period
of time, the trial courts and the High Courts have
forgotten a very well - settled principle of law that
bail is not to be withheld as a punishment. From
our experience, we can say that it appears that the
trial courts and the High Courts attempt to play
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safe in matters of grant of bail. The principle that
bail is a rule and refusal is an exception is, at
times, followed in breach. On account of non -
grant of bail even in straight forward open and
shut cases, this Court is flooded with huge number
of bail petitions thereby adding to the huge
pendency. It is high time that the trial courts and
the High Courts should recognize the principle that
"bail is rule and jail is exception"."
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. Petitioner shall be released on bail on
executing a bond for Rs.50,000/- (Rupees Fifty
Thousand only) with two solvent sureties each
for the like sum to the satisfaction of the
jurisdictional Court.
2. The petitioner shall appear before the
Investigating Officer for interrogation as and
when required. The petitioner shall co-operate
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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.
3. Petitioner shall not leave India without
permission of the jurisdictional Court.
4. 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.
5. 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
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bail, if there is any violation of the above
conditions.
Sd/-
P.V.KUNHIKRISHNAN
JUDGE
SKS
