Bail is the rule and jail is the exception; custodial interrogation must be justified based on necessity.

ORDER :

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

2. The petitioners are accused in Crime No.138/2025 of Sooranadu Police Station, Kollam. The above case is registered against the petitioners alleging offences punishable under Sections 296(b), 115(2), 118(1), 126(2) and 190 of the Bharatiya Nyaya Sanhita (BNS), 2023.

3. The prosecution case is that, on 25.01.2025 at 11.30 PM, while the musical entertainment program held in connection with the festival of Anayadi Pazhayidom Narasimha Swami Temple and due to the objections in dancing at the festival site by the defacto complainant, the 1^st accused illegally restrained and used abusive words against the defacto complainant and accused Nos.1 and 2 assaulted with hands on the body of the victim. It is further alleged that, 5 identifiable person came there and assaulted the victim. Hence, it is alleged that the accused committed the offence.

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

5. The counsel for the petitioners submitted that the only non-bailable offence alleged against the petitioners is under Section 118(1) of BNS. The counsel submitted that the incident happened in connection with a dispute of a temple festival. The counsel also submitted that the petitioners are ready to abide any conditions imposed by this Court, if this Court grant them bail.

6. The learned Public Prosecutor opposed the bail application. But, the Public Prosecutor submitted that, as per the report received by him from the Investigating Officer, no criminal antecedents are alleged against the petitioners.

7. This Court considered the contentions of the petitioners and the Public Prosecutor. The only non-bailable offence alleged against the petitioners is under Section 118(1) of the BNS. No criminal antecedents is also alleged against the petitioners. The maximum punishment that can be imposed for the offences alleged is for 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 shou