Bail is the rule and jail is the exception; police must justify the necessity of arrest under specific conditions.

ORDER

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

2. Petitioner is the accused in Crime No.786/2024 of Ramapuram Police Station. The above case is registered against the petitioner alleging offences punishable under Sections 74 , 117(2) and 126(2) read with Section 3(5) of the Bharatiya Nyaya Sanhita (for short, BNS).

3. The prosecution case is that on 28.11.2024 at about 04.00 p.m., while the informant was working in the property of Justin, the petitioner / 1^st accused came there in a scooter and demanded her to stop the work of collecting fire wood, which was refused. Then the petitioner took a sickle from his scooter, outraged the modesty of the informant by grabbing her, pushed her down to the floor causing fracture of her right arm and inflicted bites on the right finger and right ear of Justin and one Ajay, who tried to intervene.

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

5. The counsel for the petitioner submitted that even if the entire allegations are accepted, the only non-bailable offence alleged is under Section 74 of BNS. The counsel submitted that even if the entire allegations are accepted, the ingredients of of BNS are not attracted. The Public Prosecutor opposed the bail application and submitted that the victim sustained a fracture.

6. This Court considered the contentions of the petitioner and the Public Prosecutor. Admittedly the offence punishable under Section 117 (2) of BNS is a bailable offence. The only non-bailable offence alleged is under Section 74 of BNS. The allegation against the petitioner is that their intention was to assault the victim. Whether the ingredients of of BNS is attracted in the facts and circumstances of the case is a matter to be investigated. I do not want to make any observation about the same. The maximum punishment that can be imposed for the offences alleged is below 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 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 its satisfaction that such person had committed the offence punishable as aforesaid. 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 committ