Bail is the rule, with imprisonment being an exception; justifications for arrest must be clearly established.

ORDER

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

2. Petitioner is the accused in Crime No.1113/2024 of Mannarkkad Police Station, Palakkad. The above case is registered against the petitioner alleging offences punishable under Sections 126 (2), 75(i)(ii) and Section 351of the BNS.

3. The prosecution case is that the victim and her husband had gone to Kanjirapuzha Dam, as a picnic and after visiting the dam, they went to a toddy shop to have food. At that time, the petitioner along with two others having had toddy from the shop made sexually coloured remarks against the complainant and thereby committed the above said offences.

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

5. Counsel for the petitioner submitted that the only non-bailable offence is under Section 75 (i)(ii) of the BNS. It is submitted that, even if the entire allegations are accepted, no offence is made out. It is also submitted that the petitioner is ready to abide any conditions if this Court grant him bail. It is also submitted that the alleged incident happened inside a toddy shop.

6. The Public Prosecutor opposed the bail application and submitted that there is criminal antecedents to the petitioner and he is involved in three other crimes.

7. This Court considered the contentions of the petitioner and the Public Prosecutor. The only non- bailable offence alleged against the petitioner is under Section 75 (i)(ii) of the BNS. Whether the ingredients of (i)(ii) of the BNS is attracted in the facts and circumstance of the case is a matter of investigation. I don't want to make any observation about the same. The prosecution has to prove the case through oral evidences. Custodial interrogation of the petitioner is not necessary. In such circumstances, this bail application can be allowed on stringent conditions.

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 i 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 cooperated with the investigation we fail to appreciate why there should be a compulsion on the officer to arrest the accused.”

10. In Manish Sisodia v. Central Bureau of Investigation [2023 KHC 6961], the Apex Court observed that even if the allegation is one of grave economic offence, it is not a rule that bail should be denied in every case.

11. Considering the dictum laid down in the above decision and considering the facts and circumstances of this case, this Bail Application is allowed with the following directions:

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