Kerala High Court
Navas vs State Of Kerala on 5 March, 2025
Author: P.V.Kunhikrishnan
Bench: P.V.Kunhikrishnan
BAIL APPL. NO. 2705 OF 2025 1
2025:KER:18789
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN
WEDNESDAY, THE 5TH DAY OF MARCH 2025 / 14TH PHALGUNA, 1946
BAIL APPL. NO. 2705 OF 2025
CRIME NO.200/2025 OF Kundara Police Station, Kollam
PETITIONER/S:
NAVAS
AGED 48 YEARS
S/O SHAMSUDHEEN, HIDAYATH MANZIL, KERALAPURAM,
CHANDANATHOPE PO, KOTTAMKARA, PERINAD, KOLLAM,, PIN
- 691004
BY ADVS.
SREERAJ M.D.
NEELANJANA NAIR
RESPONDENT/S:
STATE OF KERALA
REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF
KERALA, PIN - 682031
OTHER PRESENT:
SRI.G.SUDHEER, P.P.
THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON
05.03.2025, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
BAIL APPL. NO. 2705 OF 2025 2
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P.V.KUNHIKRISHNAN, J
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B.A. No. 2705 of 2025
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Dated this the 5th day of March, 2025
ORDER
This Bail Application is filed under Section 482 of
Bharatiya Nagarik Suraksha Sanhita.
2. The petitioner is the accused in Crime No.
200/2025 of Kundara Police Station. The above case is
registered against the petitioner alleging offences punishable
under Sec. 75(1) of the Bharatiya Nyaya Sanhita, 2023 (BNS)
and Secs.7, 8, 9l and 9m of the Protection of Children from
Sexual Offences (POCSO) Act, 2012.
3. The prosecution case is that on 25.01.2025, the
petitioner committed aggravated sexual assault on the victim
aged 4 ½ years of age by touching her breast and vagina. Thus
the accused said to have committed the offences.
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4. Heard counsel for the petitioner and the Public
Prosecutor.
5. The counsel for the petitioner submitted that it
is a false case foisted against the petitioner. The counsel
submitted that the victim's grandmother is in rivalry with the
accused. The accused's wife once had an issue with the victim's
grandmother's son and when the accused's wife went to their
home to complaint about it, she was attacked. The accused's
wife went to the police station to make a complaint and later,
she withdrew the same. But, this incident provoked the victim's
grandmother and threatened the accused's wife that the day
car centre run by her, will be destroyed. It is also the case of
the petitioner that the victim's grandmother is a frequent
litigant and she used to unnecessarily file litigations against
neighbours. It is also submitted by the counsel for the
petitioner that the victim was put at the day care centre
conducted by the accused's wife. When the victim's guardian
failed to pick the child from the day care, the victim was put
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under the care of the accused's 13 year old daughter at their
house, when the day care was closed. This was all recorded in
the CCTV installed in the house. It is also submitted that for
registering a false case, the petitioner's daughter filed a
complaint before the DySP, Kollam as evident by Annexure-A2.
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 made
available the First Information Statement and the statement
recorded from the victim under Sec. 183 BNSS.
6. This Court considered the contentions of the
petitioner and the Public Prosecutor. This Court also perused
the First Information Statement and the statement recorded
under Sec. 183 BNSS. I do not want to make any observation
about the merit of the case. The maximum punishment that can
be imposed for the offences alleged are upto 7 years. In
Arnesh Kumar v. State of Bihar and another [(2014) 8
SCC 273] the Apex Court observed like this :
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"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 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
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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 dictum, this Court
perused the FIR and other connected records. I am of the
considered opinion that the custodial interrogation of the
petitioner is not necessary. The prosecution can prove the case
through oral evidence. Therefore, 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
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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 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
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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
executing a bond for a sum of Rs.50,000/-
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(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.
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
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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. 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
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of the above conditions are violated.
Sd/-
P.V.KUNHIKRISHNAN
JUDGE
SKS
