Kerala High Court
Hariprasad S vs State Of Kerala on 11 February, 2025
Author: P.V.Kunhikrishnan
Bench: P.V.Kunhikrishnan
BA No.1441 of 2025
1
2025:KER:11278
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN
TUESDAY, THE 11TH DAY OF FEBRUARY 2025 / 22ND MAGHA, 1946
BAIL APPL. NO. 1441 OF 2025
CRIME NO.138/2025 OF SOORANADU POLICE STATION, KOLLAM
PETITIONER(S)/ACCUSED A1 AND A2:
1 HARIPRASAD S
AGED 25 YEARS, S/O SIVAKUMAR, SIVABHAVANAM,
SOORANAD NORTH, ANAYADI P.O, KOLLAM
DISTRICT,, PIN - 690 561
2 SREEHARI.H
AGED 25 YEARS, S/O. HARIKUMAR,
SIVABHAVANAM, SOORANAD NORTH, ANAYADI P.O,
KOLLAM DISTRICT,, PIN - 690 561
BY ADV P.V.DILEEP
RESPONDENT(S)/STATE AND COMPLAINANT:
1 STATE OF KERALA
REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT
OF KERALA, ERNAKULAM., PIN - 682 031
2 THE STATION HOUSE OFFICER,
SOORANAD POLICE STATION, SOORANAD .P.O,
KOLLAM DISTRICT,, PIN - 690 522
BY ADV.:
SRI.HRITHWIK C.S., SR.PP
THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION
ON 11.02.2025, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
BA No.1441 of 2025
2
2025:KER:11278
P.V.KUNHIKRISHNAN, J.
-------------------------------------------
BA No.1441 of 2025
--------------------------------------------
Dated this the 11th day of February, 2025
ORDER
This Bail Application is filed under Section 482 of Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023.
2. The petitioners are accused in Crime No.138/2025 of Sooranadu Police Station, Kollam. The above case is registered against the petitioners alleging offences punishable under Sections 296(b), 115(2), 118(1), 126(2) and 190 of the Bharatiya Nyaya Sanhita (BNS), 2023.
3. The prosecution case is that, on 25.01.2025 at 11.30 PM, while the musical entertainment program held in connection with the festival of Anayadi Pazhayidom Narasimha Swami BA No.1441 of 2025 3 2025:KER:11278 Temple and due to the objections in dancing at the festival site by the defacto complainant, the 1 st accused illegally restrained and used abusive words against the defacto complainant and accused Nos.1 and 2 assaulted with hands on the body of the victim. It is further alleged that, 5 identifiable person came there and assaulted the victim. Hence, it is alleged that the accused committed the offence.
4. Heard the learned counsel appearing for the petitioners and the learned Public Prosecutor.
5. The counsel for the petitionerS submitted that the only non-bailable offence alleged against the petitioners is under Section 118(1) of BNS. The counsel submitted that the incident happened in connection with a dispute of a temple festival. The counsel also submitted that the petitioners are ready to abide any conditions imposed by this Court, if this BA No.1441 of 2025 4 2025:KER:11278 Court grant them bail.
6. The learned Public Prosecutor opposed the bail application. But, the Public Prosecutor submitted that, as per the report received by him from the Investigating Officer, no criminal antecedents are alleged against the petitioners.
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. No criminal antecedents is also alleged against the petitioners. The maximum punishment that can be imposed for the offences alleged is 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 BA No.1441 of 2025 5 2025:KER:11278 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 BA No.1441 of 2025 6 2025:KER:11278 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, BA No.1441 of 2025 7 2025:KER:11278 envisaged by sub-clauses (a) to (e) of clause (1) of Section 41 CrPC."
8. Keeping in mind the above dictum laid down by the Apex Court, this Court perused the allegation against the petitioners once again. I am of the considered opinion that, custodial interrogation of the petitioners may not be necessary in the facts and circumstances of the case. The petitioners can be directed to surrender before the Investigating Officer and after interrogation if arrest is recorded, there can be a direction to release the petitioners on bail.
9. 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 BA No.1441 of 2025 8 2025:KER:11278 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.
10. 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 BA No.1441 of 2025 9 2025:KER:11278 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."
11. 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.
Considering the dictum laid down in the above decisions and considering the facts and circumstances of this case, this Bail Application is allowed with the following conditions:
1. The petitioners shall appear before the Investigating Officer within two weeks BA No.1441 of 2025 10 2025:KER:11278 from today and shall undergo interrogation.
2. After interrogation, if the Investigating Officer propose to arrest the petitioners, they shall be released on bail on executing a bond for a sum of Rs.50,000/-
(Rupees Fifty Thousand only) with two solvent sureties each for the like sum to the satisfaction of the arresting officer concerned.
3. The petitioners shall appear before the Investigating Officer for interrogation as and when required. The petitioners shall co-operate with the investigation and shall not, directly or indirectly make any inducement, threat or promise to any person acquainted with the facts of the BA No.1441 of 2025 11 2025:KER:11278 case so as to dissuade him from disclosing such facts to the Court or to any police officer.
4. Petitioners shall not leave India without permission of the jurisdictional Court.
5. Petitioners shall not commit an offence similar to the offence of which they are accused, or suspected, of the commission of which they are suspected.
6. Needless to mention, it would be well within the powers of the investigating officer to investigate the matter and, if necessary, to effect recoveries on the information, if any, given by the petitioners even while the petitioners are on bail as laid down by BA No.1441 of 2025 12 2025:KER:11278 the Hon'ble Supreme Court in Sushila Aggarwal v. State (NCT of Delhi) and another [2020 (1) KHC 663].
7. If any of the above conditions are violated by the petitioners, the jurisdictional Court can cancel the bail in accordance to law, even though this bail is granted by this Court. The prosecution and the victim are at liberty to approach the jurisdictional Court to cancel the bail, if any of the above conditions are violated.
Sd/-
P.V.KUNHIKRISHNAN
nvj JUDGE