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

ORDER :

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

2. Petitioner is the sole accused in Crime No.1215 of 2024 of Parippally Police Station, Kollam. The above case is registered against the petitioner alleging offences punishable under Sections 75(1)(i), 75(1)(ii), 74, 296(b), 127(2), 351(2), and 115(2) of the Bharatiya Nyaya Sanhita, 2023 (for short ‘BNS’).

3. The prosecution case is that on 09.09.2024, the accused visited the flat in Katadi Mukku, where the defacto complainant and her family were staying, and found her alone. It is alleged that with intended to inflict harm and subject her to sexual harassment, the accused made coercive sexual advances, promising material benefits in exchange for her co-operation. When the complainant resisted, the accused verbally abused her, locked her in the room, physically assaulted her by grabbing her breasts, slapping her on the cheek, and kicking her to the floor, causing her severe mental anguish and humiliation. Hence it is alleged that the accused committed the offence.

4. Heard counsel for the petitioner, the Public Prosecutor and the counsel appearing for the defacto complainant.

5. Counsel appearing for the petitioner submitted that several cases are pending between the petitioner, the defacto complainant and her husband. The petitioner produced several documents to support the same. According to the petitioner, it is a false case foisted against the petitioner.

6. The counsel appearing for the defacto complainant very seriously opposed the bail application. The counsel submitted that this is a clear case in which the offences alleged are attracted. The petitioner is even now threatening the defacto complainant and not in a position to stay in her house, because of this incident. It is submitted that the defacto complainant separated from her husband and now staying with her mother.

7. Public Prosecutor also opposed the bail application.

8. This Court considered the contentions of the petitioner, the defacto complainant and the Public Prosecutor. The only non-bailable offence alleged in this case are under Sections 75(1)(i), 75(1)(ii) and 74. The maximum punishment that can be imposed for these offences are below 7 years. In Arnesh Kumar v. State of Bihar and Another [(2014) 8 SCC 273] the Hon’ble 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 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