Bail Appl./5380/2025 of P.V. VARGHESE Vs STATE OF KERALA on 10 April 2025

O R D E R

These Bail Applications are filed under Section 482 of the Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023. These bail applications are connected and therefore, I am disposing of these bail applications by a common order.

2. The petitioner in all these cases are one and the same person. He is the accused in Crime No.135/2025 of Thalapuzha Police Station and Crime Nos.186/2025, 197/2025, 320/2025, 406/20205 and 422/2025 of Mananthavady Police Station, Wayanad respectively. The above crimes are registered against the petitioner alleging offences punishable inter alia under Sections 316(2), 318(4) r/w 3(5) of the Bharatiya Nyaya Sanhita (BNS), 2023.

3. The brief facts in almost all the cases are as follows: There is an offer from the accused to the victims in these cases that he will provide scooter, home appliances, laptop, water tank, grocery kits etc. with 50% subsidy from CSR fund. Therefore, the victims paid huge amounts to the accused. But the assured articles were not supplied and the amount was also not returned. Therefore, these cases are registered.

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

5. The counsel appearing for the petitioner submitted that the petitioner is ready to abide any conditions if this Court grant him bail.

6. The Public Prosecutor opposed the bail applications.

7. This Court considered the contentions of the petitioner 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 petitioner 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 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 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 petitioner is necessary or not, is to be decided by the Investigating Officer after interrogation. For that purpose, there can be a direction to the petitioner to surrender before the Investigating Officer within three weeks from today. The petitioner will appear before the Investigating Officer on consecutive days from 10 AM to 4 PM. During the above period, the petitioner shall not be arrested. After interrogation, if the arrest of the petitioner is not necessary, the Investigating Officer will do the needful in accordance with law. If the arrest of the petitioner is necessary, the Investigating Officer will strictly follow the principle laid down by the Apex Court in Arnesh Kumar's case (supra). After recording the arrest, the petitioner shall be produced before the jurisdictional court on the same day itself. At that time, the petitioner can file a bail application before the jurisdictional court with advance copy to the prosecutor concerned. If such 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.

The petitioner will surrender before the Investigating Officer within three weeks from today.

If the petitioner surrender before the Investigating Officer as directed above, the Investigating Officer is free to interrogate the petitioner. The Investigating Officer is free to ask the petitioner to appear on consecutive days if necessary, but he shall not be arrested, till interrogation is over.

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.

The petitioner is free to file bail application before the jurisdictional court at the time of producing him 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 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 nvj