Bail is the rule and jail is the exception; the court emphasized the necessity of justifying arrest and the importance of personal liberty.

O R D E R

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

2. The petitioner is an accused in Crime No.1197/2024 of Njarakkal Police Station, Ernakulam. The above case is registered against the petitioner alleging offences punishable under Sections 115(2) and 126(2) of the Bharatiya Nyaya Sanhita (BNS), 2023 and also under Section 92 (a) and 92(b) of the Rights of Persons with Disabilities Act , 2016.

3. The prosecution case is that, because of the enmity that the defacto complainant stood with and supported his friend Xavier even after he was removed from the political party, the accused called the defacto complainant through mobile phone to Shoolapani Junction, Valappu and when the defacto complainant reached there, the petitioner punched on the left disabled eye of the defacto complainant by uttering insulting words regarding his disability and pulled on his chest, resultantly the victim sustained injury. Hence, it is alleged that the accused committed the aforesaid offences.

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

5. The counsel for the petitioner submitted that the only non-bailable offence alleged against the petitioner is under Section 92 (a) of the Rights of Persons with Disabilities Act , 2016. The counsel submitted that it is a case and counter case. The counsel also submitted that the petitioner is ready to abide any conditions imposed by this Court, if this Court grants him bail.

6. The learned Public Prosecutor opposed the bail application. The Public Prosecutor submitted that there are criminal antecedents to the petitioner.

7. This Court considered the contentions of the petitioner and the Public Prosecutor. The only non-bailable offence alleged against the petitioner is under Section 92 (a) of the Rights of Persons with Disabilities Act , 2016. The maximum punishment that can be imposed for that offence is 5 years. Admittedly, it is a case and counter case. There are two versions about the same incident. Which version is correct cannot be decided in a bail application. Considering the facts and circumstances of the case, I think, the petitioner 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 Enforcement [2019 (16) SCALE 870] , after considering all the earlier judgments, observed that, the basic jurisprudence relating to bail remains the same inasmuch as the grant of bail is the rule and refusal is the exception so as to ensure that the accused has the opportunity of securing fair trial.

9. Recently the Apex Court in Siddharth v State of Uttar Pradesh and Another [2021(5)KHC 353] considered the point in detail. The relevant paragraph of the above judgment is extracted hereunder.

“12. We may note that personal liberty is an important aspect of our constitutional mandate. The occasion to arrest an accused during investigation arises when custodial investigation becomes necessary or it is a heinous crime or where there is a possibility of influencing the witnesses or accused may abscond. Merely because an arrest can be made because it is lawful does not mandate that arrest must be made. A distinction must be made between the existence of the power to arrest and the justification for exercise of it. ( Joginder Kumar v. State of UP and Others (1994 KHC 189 : (1994) 4 SCC 260: 1994 (1) KLT 919: 1994 (2) KLJ 97: AIR 1994 SC 1349: 1994 CriLJ 1981)) If arrest is made routine, it can cause incalculable harm to the reputation and self-esteem of a person. If the Investigating OfÏcer has no reason to believe that the accused will abscond or disobey summons and has, in fact,