The High Court · 2025

STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, PIN-682031 SRI. G.SUDHEER, PUBLIC PROSECUTOR THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 01.04.2025, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: BAIL APPL. NO. 4074 OF 2025 -2- P.V.KUNHIKRISHNAN, J ------------------------------------------ B.A.No.4074 of 2025 ------------------------------------------ Dated this the 1st day of April, 2025 ORDER The petitioner is the 2nd accused in Crime No.324/2025 of Erumeli Police Station. The above case is registered against the petitioner alleging offences punishable under Sections 351(2), 356(2) and 196 of Bharatiya Nyasa Sanhita 2023 (BNS) and Section 120(o) of the Kerala Police Act 2011.

2. The prosecution case is that in order to defame and to threaten the defacto complainant, the petitioner had downloaded a video without the consent of the defacto complainant and exhibited the same in his channel True TV, with a caption in malayalam. Hence, it is alleged that the accused committed offences. BAIL APPL. NO. 4074 OF 2025 -3-

3. Heard the counsel for the petitioner and the Public Prosecutor.

4. Even if the allegations are accepted, the offence under Section 196 of BNS is not attracted. That is the only non-bailable offence alleged in the crime.

5. The Public Prosecutor opposed the bail application. The Public Prosecutor submitted that the 1st accused made a comment in the comment box, which will attract the offence under Section 196 of the Bharatiya Nagarik Suraksha Sanhita, 2023. I do not want to make any observation about the same. Admittedly, except for Section 196 of BNSS, all other offences are bailable offences. Even according to the prosecution, Section 196 of BNSS is added because of the comment from the 1st accused in the comment box. I do not want to make any further opinion.

6. Moreover, it is a well accepted principle that the bail is the rule and the jail is the exception. The Hon'ble BAIL APPL. NO. 4074 OF 2025 -4- 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.

7. 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 BAIL APPL. NO. 4074 OF 2025 -5- 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.”

8. 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: BAIL APPL. NO. 4074 OF 2025 -6-

1. The petitioner shall appear before the Investigating Officer within two weeks 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 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 BAIL APPL. NO. 4074 OF 2025 -7- 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.

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. 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. If any of the above conditions are BAIL APPL. NO. 4074 OF 2025 -8- 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 BAIL APPL. NO. 4074 OF 2025 -9- APPENDIX OF BAIL APPL. 4074/2025 PETITIONER'S ANNEXURES Annexure 1 THE TRUE COPY OF THE FIR IN CRIME NO.324/2025 OF ERUMELI POLICE STATION, KOTTAYAM DISTRICT DATED 17.03.2025 Annexure 2 THE TRUE COPY OF THE POST PUBLISHED BY THE PETITIONER IN SOCIAL MEDIA

STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, PIN-682031 SRI. G.SUDHEER, PUBLIC PROSECUTOR THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 01.04.2025, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: BAIL APPL. NO. 4074 OF 2025 -2- P.V.KUNHIKRISHNAN, J ------------------------------------------ B.A.No.4074 of 2025 ------------------------------------------ Dated this the 1st day of April, 2025 ORDER The petitioner is the 2nd accused in Crime No.324/2025 of Erumeli Police Station. The above case is registered against the petitioner alleging offences punishable under Sections 351(2), 356(2) and 196 of Bharatiya Nyasa Sanhita 2023 (BNS) and Section 120(o) of the Kerala Police Act 2011.

2. The prosecution case is that in order to defame and to threaten the defacto complainant, the petitioner had downloaded a video without the consent of the defacto complainant and exhibited the same in his channel True TV, with a caption in malayalam. Hence, it is alleged that the accused committed offences. BAIL APPL. NO. 4074 OF 2025 -3-

3. Heard the counsel for the petitioner and the Public Prosecutor.

4. Even if the allegations are accepted, the offence under Section 196 of BNS is not attracted. That is the only non-bailable offence alleged in the crime.

5. The Public Prosecutor opposed the bail application. The Public Prosecutor submitted that the 1st accused made a comment in the comment box, which will attract the offence under Section 196 of the Bharatiya Nagarik Suraksha Sanhita, 2023. I do not want to make any observation about the same. Admittedly, except for Section 196 of BNSS, all other offences are bailable offences. Even according to the prosecution, Section 196 of BNSS is added because of the comment from the 1st accused in the comment box. I do not want to make any further opinion.

6. Moreover, it is a well accepted principle that the bail is the rule and the jail is the exception. The Hon'ble BAIL APPL. NO. 4074 OF 2025 -4- 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.

7. 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 BAIL APPL. NO. 4074 OF 2025 -5- 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.”

8. 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: BAIL APPL. NO. 4074 OF 2025 -6-

1. The petitioner shall appear before the Investigating Officer within two weeks 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 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 BAIL APPL. NO. 4074 OF 2025 -7- 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.

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. 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. If any of the above conditions are BAIL APPL. NO. 4074 OF 2025 -8- 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 BAIL APPL. NO. 4074 OF 2025 -9- APPENDIX OF BAIL APPL. 4074/2025 PETITIONER'S ANNEXURES Annexure 1 THE TRUE COPY OF THE FIR IN CRIME NO.324/2025 OF ERUMELI POLICE STATION, KOTTAYAM DISTRICT DATED 17.03.2025 Annexure 2 THE TRUE COPY OF THE POST PUBLISHED BY THE PETITIONER IN SOCIAL MEDIA