B.A No. 4056 of 2025 · Kerala High Court

O R D E R This Bail Application is filed under Section 482 of the Bharatiya Nagarik Suraksha Sanhita.

Petitioner is an accused in Crime No.175/2025 of Mayyil Police Station. The above case is registered against the petitioner alleging offences punishable under Section 305(e) of the Bharatiya Nyaya Sanhita, 2023 (for short 'BNS') and Section 20 of the Kerala Protection of River Banks and Regulation of Removal of Sand Act, 2001.

The prosecution case is that the accused transported river sand without permit and licence. Hence it is alleged that the accused committed the above said offences.

Heard the learned counsel appearing for the petitioner learned Public Prosecutor.

Counsel for the petitioner submitted that the B.A.No.4056 of 2025 3 allegation against the petitioner is not correct and the petitioner has not committed any offence. The counsel also submitted that, even if the entire allegations are accepted, the offence under the BNS is not attracted in the light of the principle laid down by this Court in the order dated

31.12.2021 in B.A. No.9571/2021.

The Public Prosecutor opposed the bail application.

This Court considered the contentions of the petitioner and the Public Prosecutor. This Court in the order dated 31.12.2021 in B.A. No.9571/2021 observed like this:

6. The offence under Sections 20 and 23 of the Kerala Protection of River Banks and Regulation of Removal of Sand Act, 2001 is bailable in nature. It is settled that when there is specific/special law covering the question of theft of river sand, the offence under Indian Penal Code would not apply. Considering the allegations levelled against the petitioner, the custodial interrogation of the petitioner does not appear to be necessary. For all these reasons, the petitioner is entitled to prearrest bail on conditions.

B.A.No.4056 of 2025 4 In the light of the above principle, I am of the considered opinion that this bail application can be allowed on stringent conditions.

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.

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 B.A.No.4056 of 2025 5 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.

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.

The petitioner shall appear before the Investigating Officer B.A.No.4056 of 2025 6 within two weeks from today and shall undergo interrogation.

2. After interrogation, if the Investigating Officer propose to arrest the petitioner, he 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 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. B.A.No.4056 of 2025 7

4. Petitioner shall not leave India without permission of jurisdictional Court.

5. Petitioner commit an offence similar to the offence of which he is accused, or suspected, of the commission of which he is 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 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].

7. The observations and findings in this order is only for the purpose of deciding this bail application. The B.A.No.4056 of 2025 8 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 petitioner, 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 of the above conditions are violated. Sd/- P.V.KUNHIKRISHNAN, JUDGE DM