Bail is the rule and jail is the exception; police must justify the necessity of arrest under Section 41 CrPC.

ORDER :

(P.V. KUNHIKRISHNAN, J.)

These Bail Applications are filed under Section 483 of Bharatiya Nagarik Suraksha Sanhita and are connected cases. Therefore, I am disposing of these bail applications by a common order.

2. The petitioners are the accused in Crime Nos. 970/2024, 1035/2024, 1036/2024 of Kaipamangalam Police Station and Crime Nos.1177/2024, 1178/2024 and 1179/2024 of Valappad Police Station. The above cases are registered against the petitioners interalia under Secs. 316 (2), 308(4) r/w 3(5) of the Bharatiya Nyaya Sanhita, 2023 (for short 'BNS').

3. The common case in all these cases is that the accused produced fake gold before the different financial institutions and obtained huge amount as loan. Hence, it is alleged that the accused committed the offences.

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

5. The counsel for the petitioner submitted that the petitioner is in custody from 11.11.2025. The counsel submitted that the petitioner is ready to abide any conditions, if this Court grants him bail. It is also submitted that the petitioner has not committed any offences. The gold ornaments are collected by the financial institutions by verifying same by the appraisers. Therefore, the petitioner is not guilty. The Public Prosecutor seriously opposed the bail application. The Public Prosecutor submitted that the petitioner is involved in 14 cases in which the allegation is the same.

6. This Court considered the contentions of the petitioner and the Public Prosecutor. It is true that the allegation against the petitioner are very serious. But, the petitioner is in custody from 11.01.2025. The maximum punishment that can be imposed for the offence alleged is upto seven 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, I am of the considered opinion that the continued custodial inte