IMPORTANT POINT
Bail is the rule and jail is the exception; arrest must be justified and not routine, especially for offences with a maximum punishment of three years.

ORDER :

This Bail Application is filed under Section 482 of Bharatiya Nagarik Suraksha Sanhita ( BNSS ), 2023.

2. The petitioner is an accused in Crime No.240/2025 of South Police Station, Alappuzha. The above case is registered against the petitioner alleging offences punishable under Sections 115(2) , 118(1) , 296(b) , 117(2) and 351(2) of the Bharatiya Nyaya Sanhita ( BNS ), 2023.

3. The prosecution case is that, on 13.02.2025 at about 08.45 PM, the petitioner publicly consumed alcohol in Kannitta Boat Jetty. When the defacto complainant, who is the Lasker of Water Transport Department, questioned the act of the petitioner, he abused and began to attack the defacto complainant. The petitioner hold head of the defacto complainant and hit against the pillar of the boat jetty and beat on his cheek. He hit on the nose and stamped on the chest of the defacto complainant. When the defacto complainant tried to escape from there, the petitioner hit on his right shoulder with a stick and threatened him. Hence, it is alleged that the accused committed the offence.

4. Heard the learned counsel appearing for the petitioner and the learned Public Prosecutor.

5. The counsel for the petitioner submitted that the only non-bailable offence alleged against the petitioner is underSection 118(1) of the BNS . The counsel also submitted that the petitioner is ready to abide any condition imposed by this Court, if this Court grants him bail.

6. The Public Prosecutor opposed the bail application. He submitted that there are criminal antecedents to the petitioner.

7. 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 fact remains that the only non-bailable offence alleged against the petitioner is under Section 118(1) of the BNS . The maximum punishment that can be imposed for the above offence is three 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 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 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