Bail is the rule and jail is the exception; custodial interrogation is not necessary unless justified by circumstances.

ORDER

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

2. Petitioners are accused Nos.1, 2 and 4 in Crime No.119 of 2025 of Nedumkandam Police Station, Idukki. The above case is registered against the petitioners and another alleging offences punishable under Sections 296 (b), 329(1), 331(4), 126(2), 74, 78 and 3(5) of the Bharatiya Nyaya Sanhita , 2023 (for short ‘ BNS ’).

3. The prosecution case is that due to previous enmity towards the defacto complainant, on 31.01.2025 at 08:00 pm, the petitioners along with another, who is a Child in Conflict with Law (CCL) criminally trespassed into the house of the defacto complainant. The 1^st and 2^nd petitioners and the CCL abused the defacto complainant in filthy language and CCL twisted her left hand. At that time, 1^st and 2^nd petitioners entered into the kitchen room of the defacto complainant and wrongfully restrained her by catching hold of her hand and CCL tore her churidar. It is also alleged that the 1^st and 2^nd petitioners pressed on her both breasts and outraged her modesty and thereby committed the offences.

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

5. Counsel appearing for the petitioners submitted that the only non-bailable offence alleged against the petitioners is under Section 74 of BNS . The counsel submitted that even if the entire allegations are accepted, the ingredients of Section 74 of is not attracted.

6. Public Prosecutor opposed the bail application. The Public Prosecutor submitted that the allegations against the petitioners are very serious. But, the Public Prosecutor submitted that as per the report received by him, no criminal antecedents are alleged against the petitioners.

7. This Court considered the contention of the petitioners and the Public Prosecutor. A perusal of the prosecution case would show that the intention of the petitioners is to assault the victim. Whether the ingredients of Section 74 of BNS is attracted or not is a matter to be investigated by the Investigation OfÏcer. I do not want to make any observation about the same. In the facts and circumstances of the case, custodial interrogation of the petitioners may not be necessary. The prosecution can prove the case through oral and documentary evidence.

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, throughout cooperated with the investigation we fail to appreciate why there should be a compulsion on the ofÏcer to arrest the accused.”

10. In Manish Si