Bail Plea Closed as Offenses Found Bailable: Kerala High Court Mandates BNSS Notice for Future Arrests - 2025-10-07

Guarding Liberty: Kerala High Court Sets Procedural Safeguard in Bailable Cases

In a recent order, the Kerala High Court addressed the apprehension of a petitioner regarding their potential arrest in a cyber-related criminal complaint. Presided over by Justice Bechu Kurian Thomas, the Court emphasized that where the allegations are limited to bailable offenses, the legal ground for seeking bail vanishes—yet the Court took a proactive stance to ensure future due process.

The Mystery of the Unknown Crime

The matter began when a petitioner approached the High Court fearing imminent arrest in an "unknown crime." During the hearing, the Public Prosecutor clarified the status of the investigation, noting that the petitioner is indeed an accused in Crime No. 19/2025, filed by the Cyber Crime Police Station in Aluva. The investigation originally stemmed from allegations under Section 67 of the Information Technology Act, 2000 , Section 120 (o) of the Kerala Police Act, 2011 , and Section 3 (5) of the Bharatiya Nyaya Sanhita ( BNS ), 2023. By September 19, 2025, additional provisions— Sections 78 and 79 of the IT Act—were incorporated into the charges.

Weighing the Legal Grounds

The central legal question was whether the petitioner’s apprehension of arrest was substantiated by the nature of the offenses. The Public Prosecutor argued effectively that since all current charges against the petitioner are bailable, the requirement for an anticipatory bail order does not subsist under existing criminal procedure.

The Court acknowledged that the law provides specific mechanisms for handling bailable versus non-bailable offenses. Because the current charges do not carry the threat of non-bailable detention, the threshold for judicial intervention in the form of a bail order was not met.

Key Observations

The Court’s reasoning focused on the necessity of procedural fairness should the investigation evolve to include more severe charges. Justice Bechu Kurian Thomas noted:

• "The learned Prosecutor also submitted that the offences alleged against the petitioner are all bailable offences and, therefore, the apprehension of arrest of the petitioner is without any basis."
• "As the offences alleged against the petitioner are all bailable, the apprehension of arrest of the petitioner in a non bailable offence does not subsist."
• "However, if in case, any non bailable offence is incorporated against the petitioner, notice under Section 3 5 (3) of the Bharatiya Nagarik Suraksha Sanhita, 2023 shall be issued before initiating any coercive action."

A Shield for Future Due Process

While the Court closed the bail application, it did not leave the petitioner without remedy. Recognizing the potential for investigators to amend charges later in the proceedings, the Court issued a directive that serves as an important safeguard.

Under the provisions of the Bharatiya Nagarik Suraksha Sanhita ( BNS S), 2023, the Court mandated that if the investigation incorporates non-bailable offenses, the authorities are legally compelled to issue a notice under Section 3 5(3) before taking any coercive action. This decision balances the state’s duty to investigate potential cybercrimes with the individual’s right to notice and due process, setting a clear precedent for procedural compliance in unfolding investigations.