IMPORTANT POINT
Bail is the rule and custodial arrest must be justified; police must demonstrate necessity for arrest based on specific criteria.

ORDER :

(P.V. KUNHIKRISHNAN, J.)

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.

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 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 :

“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 requ