O R D E R

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

2. Petitioner is the accused in Crime No.1273/2024 of Manjeri Police Station. The above case is registered against the petitioner alleging offences punishable under Section 126(2), 115(2) and 74 read with Section 3(5) of the Bharatiya Nyaya Sanhita, 2023 (BNS).

3. The prosecution case is that, on 24.09.2024 at 01:00pm, accused with identifiable persons went to the house of the defacto complainant asking for the son of the nephew of the petitioner and when she replied that child is not there, accused uttered abusive words and pushed her down by caught hold of neck and when she was laying on the floor accused pressed her breast, in the scufÒe her maxi was torn. Hence, it is alleged that the accused committed the offence.

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

5. The counsel for the petitioner submitted that, even if the entire alleagations are accepted, the offence under Section 74 of BNS is not attracted. The counsel submitted that the only non-bailable offence is under Section 74 of the BNS. The counsel also submitted that the incident happened in connectin with the matrimonial dispute. It is also submitted that a POCSO case is also registered against the husband of the defacto complainant. Annexure-I is the FIR.

6. The counsel for the defacto complainant seriously opposes the bail application. The counsel submitted a detailed objection is also filed. The counsel takes me through the documents produced along with the objection and submitted that the offence under Section 74 of BNS is clearly attracted. The counsel also takes me through Annexure R2(b) in which it is stated the injury sustained because of assault and there is a swelling in the chest area of the defacto complainant.

7. The Public Prosecutor also opposes the bail application.

8. This Court considered the contention of the petitioner, Public Prosecutor and the counsel appearing for the defacto complainant.

9. The only non-bailable offence alleged against the petitioner is Section 74 of the BNS. Whether the ingredients of Section 74 of BNS is there, is a matter of investigation. I do not want to make any observation about the same. Admittedly, there is some matrimonial disputes pending between the parties. I am of the considered opinion that, the custodial interrogation of the petitioner may not be necessary.

10. 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.

11. 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 Officer has no reason to believe that the accused will abscond or disobey summons and has, in fact, throughout coope