IMPORTANT POINT
Bail is the rule and jail is the exception; arrest must be justified based on necessity and cannot be routine.

ORDER :

(P.V. KUNHIKRISHNAN, J.)

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

2. The petitioners are the accused in Crime No. 46/2025 of Anchalumoodu Police Station. The above case is registered against the petitioners and another alleging offences punishable under secs. 296 (b), 115(2), 118(1) and 3(5) of the Bharatiya Nyaya Sanhita, 2023 (for short 'BNS').

3. The prosecution case is that on 05.01.2025 at 4.45 pm, the petitioners along with other unidentified persons assaulted the defacto complainant, who is a boatman at Kollam DTPC Kureepuzha, due to the vengeance that the complainant said that he would not be able to permit to travel in the boat after the allotted time.

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

5. The counsel for the petitioners submitted that the only non bailable offence alleged is under Sec. 118(1) of the BNS. The counsel submitted that no serious injury is sustained to the injured. The counsel also submitted that the petitioners are ready to abide any conditions, if this Court grants him bail. The Public Prosecutor opposed the bail application.

6. This Court considered the contentions of the petitioners and the Public Prosecutor. The 1^st accused is granted bail as per Annexure A2 order. The only non bailable offence alleged against the petitioners is Sec. 118(1) of the BNS. The maximum sentence that can be imposed under Sec.118(1) of the BNS is only 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 envisaged by sub- clauses (a) to (e) of clause (1) of Section 41 CrPC.”

7. Keeping in mind the above principle laid down by the Apex Court, this Court considered the prosecution case. I am of the considered opinion that the petitioners 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 Enforcem