BAIL APPL. NO. 3989 OF 2025 1 2025:KER:30050 IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN MONDAY, THE 7TH DAY OF APRIL 2025 / 17TH CHAITHRA, 1947 BAIL APPL. NO. 3989 OF 2025 AGAINST THE ORDER/JUDGMENT DATED IN CR NO.328 OF 2025 OF JUDICIAL MAGISTRATE OF FIRST CLASS -I, PUNALUR PETITIONER/S: 1 ARUN S. ANAND AGED 41 YEARS SON OF SOMARAJAN K., PALAKUNNATHU VEEDU, URKUNNU P.O., THENMALA, PUNALUR, THENMALA, KOLLAM, NOW RESIDING AT ADOOR, PATHANAMTHITTA DISTRICT., PIN - 691307 2 MANOHARAN C. AGED 67 YEARS SON OF CHELLAPPAN, EDATHUNDIL VEEDU, URUKUNNU P.O., THENMALA, EDAMON, KOLLAM, PATHANAPURAM, KOLLAM DISTRICT, PIN - 691307 3 MANJUKUMAR M AGED 41 YEARS SON OF MANOHARAN, EDATHUNDIL HOUSE, URUKUNNU P.O., THENMALA, VTC, THENMALA, P.O. EDAMON, PATHANAPURAM, KOLLAM, PIN - 691307 4 MANOJ M AGED 43 YEARS SON OF MANOHARAN C, EDATHUNDIL VEEDU, URUKUNNU P.O. THENMALA, KOLLAM, PIN - 691307 BAIL APPL. NO. 3989 OF 2025 2 2025:KER:30050 BY ADVS. T.RAMPRASAD UNNI K.RAMAKUMAR (SR.) S.M.PRASANTH SHEHIN S. DEVIKA S. RESHMA DAS P. RESPONDENT/S: 1 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, PIN - 682031 2 THE STATION HOUSE OFFICER THENMALA POLICE STATION, THENMALA, KOLLAM DISTRICT,, PIN - 691307 3 PRINCY THOMAS ( IS IMPLEADED AS PER ORDER DATED 04.04.2025 IN CRL MA NO 1/25) W/O. THOMAS MATHEW, MATTATHIL VEEDU, PRASANTH NAGAR ,NARIYANANI P O , CHIRAKKADAVU , KANJIRAPPALLY, KOTTAYAM. BY ADVS. M.T.SURESH KUMAR MANJUSHA K SONA VIJAYAN K. OTHER PRESENT: SR PP-NOUSHAD K A THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 07.04.2025, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: BAIL APPL. NO. 3989 OF 2025 3 2025:KER:30050 P.V.KUNHIKRISHNAN, J –------------------------------------- B.A. No. 3989 of 2025 -------------------------------------- Dated this the 7th day of April, 2025 O R D E R This Bail Application is filed under Section 482 of Bharatiya Nagarik Suraksha Sanhita. 2. The petitioners are the accused in Crime No. 328/2025 of Thenmala Police Station. The above case is registered against the petitioners alleging offences punishable under Secs. 329(3), 303(2), 324(5) & 3(5) of the Bharatiya Nyaya Sanhita, 2023 (BNS). 3. The prosecution case is that, the petitioners cut and removed the rubber trees, jack fruit trees etc. from the property of the defacto complainant and caused loss to her and other owners of the property. 4. Heard counsel for the petitioners and the BAIL APPL. NO. 3989 OF 2025 4 2025:KER:30050 Public Prosecutor. I also heard the learned counsel appearing for the defacto complainant. 5. The counsel for the petitioners submitted that even if the entire allegations are accepted, the offence alleged are not attracted. The counsel submitted that the petitioners are ready to co-operate with the investigation. The counsel appearing for the defacto complainant seriously opposed the bail application. The counsel submitted that even after this incident, the petitioners set ablaze the entire property and the police is not taking any action. The Public Prosecutor opposed the bail application. 6. When this bail application came up for consideration on 28.03.2025, this Court passed the following order : “The petitioners shall appear before the Investigating Officer on 01.04.2025. The Investigating Officer shall interrogate the petitioners and file a report before this Court after interrogation as to whether custodial interrogation of the petitioners is necessary. If recovery is possible, the Investigating Officer can do the needful in BAIL APPL. NO. 3989 OF 2025 5 2025:KER:30050 accordance with law. The petitioners shall not be arrested till the next posting date. Post on 04.04.2025. Issue a copy of this order to the Public Prosecutor who will communicate the same to the Investigating Officer concerned.” 7. Today, when the matter came up for consideration, the Public Prosecutor submitted that even though the petitioners appeared before the investigating officer, the recovery is not effected. Therefore, the prosecution is opposing the bail application. The only reason for opposing the bail application is that the recovery is not effected and there are other accused in the case and their identity is to be find out. For this reason alone, this Court cannot deny bail to the petitioners. In Sushila Aggarwal and Others v. State (NCT of Delhi) and Another [2020 (1) KHC 663], the Apex Court observed that even if the accused are on bail, the recovery can be effected treating them as deemed custody. In such circumstances, for that reason BAIL APPL. NO. 3989 OF 2025 6 2025:KER:30050 alone, this Court cannot deny bail. The other reason is that there are other accused to be identified. For that purpose, there can be a direction to the petitioners to co-operate with the investigation. I think the petitioners can be released on bail, after imposing 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 is an important BAIL APPL. NO. 3989 OF 2025 7 2025:KER:30050 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 BAIL APPL. NO. 3989 OF 2025 8 2025:KER:30050 of this case, this Bail Application is allowed with the following directions: 1. The petitioners 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 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 BAIL APPL. NO. 3989 OF 2025 9 2025:KER:30050 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/her 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 BAIL APPL. NO. 3989 OF 2025 10 2025:KER:30050 petitioners even while the petitioners are 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]. 7. The observations and findings in this order is only for the purpose of deciding this bail application. The principle laid down by this Court in Anzar Azeez v. State of Kerala [2025 SCC OnLine KER 1260] is applicable in this case also. 8. If any of the above conditions are violated by the petitioners, the jurisdictional Court can cancel the bail in accordance to 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 BAIL APPL. NO. 3989 OF 2025 11 2025:KER:30050 of the above conditions are violated. Sd/- P.V.KUNHIKRISHNAN JUDGE SKS