Satish Kumar vs State Of Kerala

THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 30.01.2025, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: 2025:KER:7575 B.A No.731 of 2025 :2:

P.V.KUNHIKRISHNAN, J -------------------------------- B.A.No.731 of 2025 ------------------------------- Dated this the 30th day of January, 2025

ORDER

This Bail Application is filed under Section 482 of

Bharatiya Nagarik Suraksha Sanhita.

2. Petitioner is the accused in Crime No.649 of

2024 of Meenakshipuram Police Station. The above case

was originally registered against the petitioner alleging

offence punishable under Section 194 of the Bharatiya

Nyaya Sanhita (for short 'BNS'), 2023. Subsequently,

Section 85 of BNS is added.

3. The prosecution case is that the petitioner

is the husband of Pournami, who committed suicide on

26.10.2024 by hanging at her husband's residence, due to

the reason that her son had not spoken to her for three

months and the petitioner is a drunkard and he ill-treated 2025:KER:7575 B.A No.731 of 2025 :3: her under the influence of alcohol. It is also alleged that the

petitioner suspect that the deceased have illicit connection

with another person.

4. Heard counsel for the petitioner and the

Senior Public Prosecutor.

5. Counsel for the petitioner submitted that

the petitioner is ready to abide any conditions, if this Court

grants him bail.

6. Senior Public Prosecutor opposed the bail

application.

7. The offence alleged is under Section 85 of

BNS. The wife of the petitioner committed suicide, for the

reason that her son is not talking to her for about three

months and the petitioner is a drunkard and he is ill-treating

her under the influence of alcohol. The cruelty mentioned in

Section 85 of BNS is defined in Section 86 of BNS. It will be

better to extract the same.

"86. Cruelty defined.-For the purposes of section 85, "cruelty" means-

2025:KER:7575 B.A No.731 of 2025 :4:

(a) any wilful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman; or

(b) harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand."

8. Section 86 of BNS says 'wilful conduct'.

Whether the prosecution case will come into the definition

of 'wilful conduct' mentioned in Section 86 of BNS is a

matter to be investigated. I do not want make any

observation about the same.

9. The maximum punishment that can be

imposed for the offence under Section 85 of BNS is three

years. In Arnesh Kumar v. State of Bihar and Another

[(2014) 8 SCC 273] the Hon'ble Apex Court observed like

this:

7.1. From a plain reading of the aforesaid provision, it is evident that a 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 2025:KER:7575 B.A No.731 of 2025 :5: 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 presence in the court whenever required cannot be ensured. These are the 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 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 2025:KER:7575 B.A No.731 of 2025 :6: 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 Cr.P.C.

10. Keep in mind the above principle laid down

by the Hon'ble Apex Court and also considering the

prosecution case, I am of the considered opinion that the

custodial interrogation of the petitioner may not be

necessary. There can be a direction to the petitioner to

appear before the Investigating Officer on every Monday at

10 a.m., till Final Report is filed.

11. 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 2025:KER:7575 B.A No.731 of 2025 :7: securing fair trial.

12. 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 2025:KER:7575 B.A No.731 of 2025 :8: 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."

13. 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

decision and considering the facts and circumstances of this

case, this Bail Application is allowed with the following

directions:

1. The petitioner shall appear before the

Investigating Officer within two weeks

from today and shall undergo

interrogation.

2. After interrogation, if the Investigating

Officer propose to arrest the petitioner, he 2025:KER:7575 B.A No.731 of 2025 :9: 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 petitioner shall appear before the

Investigating Officer for interrogation as

and when required. The petitioner 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

case so as to dissuade him from disclosing

such facts to the Court or to any police

officer.

4. Petitioner shall not leave India without

permission of the jurisdictional Court.

2025:KER:7575 B.A No.731 of 2025 :10:

5. Petitioner shall not commit an offence

similar to the offence of which he is

accused, or suspected, of the commission

of which he is suspected.

6. Petitioner shall appear before the

Investigating Officer on every Monday at

10 a.m., till Final Report is filed.

7. 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 petitioner

even while the petitioner is on bail as laid

down by the Hon'ble Supreme Court in

Sushila Aggarwal v. State (NCT of

Delhi) and another [2020 (1) KHC 663].

8. If any of the above conditions are

violated by the petitioner, the jurisdictional

Court can cancel the bail in accordance to 2025:KER:7575 B.A No.731 of 2025 :11: law, even though the 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

JUDGE AMR