IMPORTANT POINT
Bail is the rule and jail is the exception; custodial interrogation is not necessary if there are no criminal antecedents and the accused cooperates with the investigation.

ORDER :

(P.V. KUNHIKRISHNAN, J.)

This Bail Application is filed under Section 482 of Bharatiya Nagarik Suraksha Sanhita .

2. The petitioners are accused in crime No. 305/2025 of Kottarakkara Police Station. The above case is registered against the petitioners alleging offences punishable under Secs. 126(2), 115(2), 118(1) and 351(2) r/w 3(5) of the Bharatiya Nyaya Sanhita, 2023 (for short 'BNS').

3. The prosecution case is that, due to previous enmity towards the defacto complainant and his friend, on 27.01.2025 at 7 pm, the petitioners reached near the residence of the defacto complainant and took the defacto complainant and his friend on a bike ridden by the 2^nd respondent to a place nearby Nagaraja temple and the 1^st accused slapped on the face of the defacto complainant and fisted on his face after holding his neck and beat him with a stick. The 1^st accused also attacked the defacto complainant's friend. Thereafter, the 3^rd accused manhandled the defacto complainant and threatened him that they would set him on fire after pouring petrol. Hence, it is alleged that the accused committed the offences.

4. Heard counsel for the petitioners and the Public Prosecutor.

5. The counsel for the petitioners submitted that the allegation against the petitioners are not correct. The petitioners have not committed any offence. The counsel also submitted that the incident is not happened as alleged by the prosecution. There are CCTV footages to prove the case of the accused. The Public Prosecutor opposed the bail application. The Public Prosecutor submitted that no criminal antecedents are alleged against the petitioners, as per the report received by him.

6. This Court considered the contentions of the petitioners and the Public Prosecutor. The only non-bailable offence alleged against the petitioners is under sec. 118(1) BNS. The maximum punishment that can be imposed for the offence alleged is 3 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 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 envisage