What conditions the court should impose while releasing accused on Anticipatory bail?

1. This Bail Application is filed under Section 482 of Bharatiya Nagarik Suraksha Sanhita.

2. The petitioner is the 4th accused in Crime No. 80/2025 of Chalakudy Police Station, Thrissur. The above case is registered against the petitioner and others alleging offences punishable under Secs. 316(2), 318(4), 336(3), 3(5) of the Bharatiya Nyaya Sanhita, 2023 (for short ‘BNS’).

3. The prosecution case is that the accused person received Rs. 27,50,000/- by offering a job in UK. The job is not provided and money is not repaid. It is further alleged that victim No. 2 received back an amount of Rs. 10,00,000/-. But the defacto complainant has not received any amount from the accused. Hence, it is alleged that the accused committed the offence.

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

5. The counsel for the petitioner submitted that the petitioner has no direct involvement even as per the prosecution case. The counsel also submitted that the petitioner is ready to abide any condition imposed by this Court, if this Court grants him bail.

6. The Public Prosecutor opposed the bail application. But, when this Court enquired, the Public Prosecutor submitted that no criminal antecedents is alleged against the petitioner as per the report received by him. The Public Prosecutor also submitted that the other accused were also not arrested.

7. This Court considered the contentions of the petitioner and the Public Prosecutor. It is true that the allegation against the petitioner and the other accused are very serious. But, no criminal antecedents are alleged against the petitioner. It is an admitted fact that the maximum punishment that can be imposed for the offences alleged is up to 7 years. In Arnesh Kumar v. State of Bihar and another [MANU/SC/0559/2014 : 2014:INSC:463 : (2014) 8 SCC 273] the Apex Court observed like this :

“7.1. From a plain reading of the aforesaid provision, it is evident that a 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 presence in the court whenever required cannot be ensured. These are the 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. Keeping in mind the above principle, this Court considered the facts of this case once again. I am of the considered opinion that the petitioner can be released on bail, after imposing stringent conditions. But, I make it clear that this order is not applicable to the other accused and the bail application of the other accused will be considered separately, untrammelled by any observation in this order. There can be a direction to the petitioner to surrender his passport before the investigating officer, at the time of surrender. If there is no passport, the petitioner will file an affidavit to that effect. With the above conditions, this bail application can be allowed.

9. 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 [MANU/SC/1670/2019 : 2019:INSC:1317 : 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.

10. Recently the Apex Court in Siddharth v State of Uttar Pradesh and Another [MANU/SC/0600/2021 : 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 justification for exercise of it. (Joginder Kumar v. State of UP and Others (MANU/SC/0311/1994 : 1994:INSC:170 : 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.”

11. In Manish Sisodia v. Central Bureau of Investigation [MANU/SC/1193/2023 : 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.

12. 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:

1. The petitioner 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 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 her 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 [MANU/SC/0100/2020 : 2020:INSC:106 : 2020 (1) KHC 663].

7. The petitioner shall surrender his passport before the investigating officer, at the time of surrender. If there is no passport, the petitioner will file an affidavit to that effect.