Bail is the rule and jail is the exception; custodial interrogation must be justified and not routine.

ORDER

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

2. The petitioners are accused in Crime No.1066/2024 of Kalpetta Police Station, Wayanad. The above case is registered against the petitioners alleging offences punishable under Sections 118 (1) and 3(5) of the Bharatiya Nyaya Sanhita ( BNS ), 2023 and also under Section 92(b) of the Right of Persons with Disabilities Act , 2016.

3. The prosecution case is that, on 30.11.2024 at 12.35 PM, the accused persons trespassed into the stage where the protest was being conducted by the NGO Union in front of the Civil Station and assaulted the defacto complainant who is a person with disability, along with two other individuals accompanying her. 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 petitioners have not committed any offence. There was police attack to the petitioners and others who were conducting a Dharna. The allegation against the petitioners that they trespassed into the protest stage of the NGO Union is not correct. 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 Public Prosecutor opposed the bail application. Public Prosecutor submitted that there are criminal antecedents to the petitioners.

7. This Court considered the contentions of the petitioners and the Public Prosecutor. It is true that the allegations against the petitioners are serious. But, the maximum sentence that can be imposed for the offences alleged are below 7 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 ofÏcer only on his satisfaction that such person had committed the offence punishable as aforesaid. A police ofÏcer 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 ofÏcer, or unless such accused person is arrested, his conclusions, which one may reach based on facts.

7.2. The law mandates the police ofÏcer 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 ofÏcers to record the reasons in writing for not making the arrest.

7.3. In pith and core, the police ofÏcer 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 ofÏcers should have reason to believe on the basis of information and material that the accused has committed the offence. Apart from this, the police ofÏcer 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