Bail is the rule and jail is the exception; arrest must be justified based on necessity, especially for non-bailable offences.

ORDER

These Bail Applications filed under Section 482 of the Bharatiya Nagarik Suraksha Sanhita are connected and therefore, I am disposing of these bail applications by a common order. 2. Petitioners in these bail applications are the accused in Crime No.40/2025 of Neyyattinkara Police Station, Thiruvananthapuram. The above case is registered against the petitioners and others alleging offences punishable under Sections 126 (2) , 296(b) , 115(2) , 118(1) & 3(5) of the Bharatiya Nyaya Sanhita , 2023 (for short ' BNS ').

3. The prosecution case is that the accused wrongfully restrained the defacto complainant, used filthy language against him and attacked him. It is alleged that the defacto complainant sustained injury. Hence it is alleged that the accused committed the above said offences.

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

5. Counsel for the petitioners submitted that the only non-bailable offence alleged against the petitioners is under Section 118 (1) of the BNS . The counsel submitted that the petitioners are ready to abide any conditions if this Court grant them bail.

6. The Public Prosecutor opposed the bail application.

7. This Court considered the contentions of the petitioners and the Public Prosecutor. The only non-bailable offence alleged against the petitioners is under Section 118 (1) of the BNS . The maximum punishment that can be imposed for the offence alleged is imprisonment for three 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 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 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 committed the offence. Apart from this, the police officer 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 (1) of Section 41 CrPC.” Considering the facts and circumstance of the case, I think these bail applications can be allowed on stringent conditions.

Keeping in mind the above principle, this Court considered the facts in this