2025:KER:28498 BAIL APPL. NO. 4318 OF 2025 1 IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN THURSDAY, THE 3RD DAY OF APRIL 2025 / 13TH CHAITHRA, 1947 BAIL APPL. NO. 4318 OF 2025 CRIME NO.122/2025 OF Vazhakkad Police Station, Malappuram AGAINST THE ORDER/JUDGMENT DATED IN CRMC NO.175 OF 2025 OF ADDITIONAL DISTRICT COURT & SESSIONS COURT - III, MANJERI / III ADDITIONAL MACT, MANJERI PETITIONERS/ACCUSED NOS.1 & 2: 1 T. NASAR BABU AGED 53 YEARS S/O.MUHAMMED, POOVADIYIL HOUSE, VAZHAKKAD, MALAPPURAM DISTRICT, PIN - 673640 2 HASHIM P AGED 54 YEARS S/O.ABDU RASAK, PALLIPARAMBIL HOUSE, VAZHAKKAD, MALAPPURAM DISTRICT, PIN - 673640 BY ADV K.RAKESH RESPONDENT/STATE & COMPLAINANT: 1 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, ERNAKULAM, KOCHI, PIN - 682031 2 THE STATION HOUSE OFFICER VAZHAKKAD POLICE STATION, MALAPPURAM DISTRICT, PIN - 673640 2025:KER:28498 BAIL APPL. NO. 4318 OF 2025 2 OTHER PRESENT: SR PP-NOUSHAD K A THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 03.04.2025, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: 2025:KER:28498 BAIL APPL. NO. 4318 OF 2025 3 P.V.KUNHIKRISHNAN, J. -------------------------------- B.A. No.4318 of 2025 ---------------------------------------------- Dated this the 03rd day of April, 2025 ORDER This Bail application is filed under Section 482 of the Bharatiya Nagarik Suraksha Sanhita. 2. Petitioners are the accused in Crime No.122/2025 of Vazhakkad Police Station. The above cases are registered against the petitioners alleging offences punishable under Section 318(4) of the Bharatiya Nyaya Sanhita, 2023 (for short 'BNS'). 3. The prosecution case is that, with the intention of deceiving the defacto complainant, petitioners advertised through Whatsapp that she would get laptop and home appliances at half price. On the basis of this advertisement, the defacto complainant transferred Rs.90,000/- to the bank account of the petitioners. It is alleged that the accused did not provide laptop or home appliances to the defacto complainant. Hence it is alleged that the accused committed the above said offences. 2025:KER:28498 BAIL APPL. NO. 4318 OF 2025 4 4. Heard the learned counsel appearing for the petitioners and the learned Public Prosecutor. 5. The counsel appearing for the petitioners submitted that the petitioners are ready to abide any conditions if this Court grant them bail. 6. The Public Prosecutor opposed the bail application. 7. This Court considered the contentions of the petitioners and the Public Public Prosecutor. Admittedly, in this case, the maximum punishment that can be imposed for the offences alleged are up to 7 years. Therefore, whether the arrest of the petitioners is necessary, is to be decided by the Investigating Officer in accordance with the principle laid down by the Apex Court in Arnesh Kumar v. State of Bihar and Another [2014 (8) SCC 273]. 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 2025:KER:28498 BAIL APPL. NO. 4318 OF 2025 5 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 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 2025:KER:28498 BAIL APPL. NO. 4318 OF 2025 6 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, envisaged by sub-clauses (a) to (e) of clause (1) of Section 41 CrPC.” 8. Therefore, whether the arrest of the petitioners is necessary or not, is to be decided by the Investigating Officer after interrogation. For that purpose, there can be a direction to the petitioners to surrender before the Investigating Officer within three weeks from today. The petitioners will appear before the Investigating Officer on consecutive days from 10 AM to 4 PM. During the above period, the petitioners shall not be arrested. After interrogation, if the arrest of the petitioners is not necessary, the Investigating Officer will do the needful in accordance with law. If the arrest of the petitioners is necessary, the Investigating Officer will strictly follow the principle laid down by the Apex Court in Arnesh Kumar's case (supra). After 2025:KER:28498 BAIL APPL. NO. 4318 OF 2025 7 recording the arrest, the petitioners shall be produced before the jurisdictional court on the same day itself. At that time, the petitioners can file a bail application before the jurisdictional court with advance copy to the prosecutor concerned. If such a bail application is received, the jurisdictional court can consider the bail application on the date of filing of the same itself. The jurisdictional court shall consider the bail application in the light of the principle laid down by the Apex Court in Arnesh Kumar's case (supra). Therefore, these bail applications are disposed of with the following directions. 1. The petitioners will surrender before the Investigating Officer within three weeks from today. 2. If the petitioners surrender before the Investigating Officer as directed above, the Investigating Officer is free to interrogate the petitioners. The Investigating Officer is free to ask the petitioners to appear on consecutive days if necessary, but they shall 2025:KER:28498 BAIL APPL. NO. 4318 OF 2025 8 not be arrested, till interrogation is over. 3. If the Investigating Officer feels that the arrest is inevitable, even after interrogation, the Investigating Officer shall follow the principle laid down by the Apex Court in Arnesh Kumar's case (supra) and shall produce the accused before the jurisdictional court on the date on which the arrest is recorded. 4. The petitioners are free to file bail application before the jurisdictional court at the time of producing them as directed above. If such a bail application is filed with advance copy to the prosecutor concerned, the jurisdictional court will consider that bail application in accordance with law and pass appropriate orders in it preferably on the date of filing of the same itself. While deciding the bail application, the jurisdictional court shall scrupulously 2025:KER:28498 BAIL APPL. NO. 4318 OF 2025 9 consider whether the Investigating Officer followed the principle laid down by the Apex Court in Arnesh Kumar's case (supra). sd/- P.V.KUNHIKRISHNAN JUDGE JV