The Kerala High Court has clarified the threshold for granting pre-arrest bail under the Bharatiya Nagarik Suraksha Sanhita, 2023, distinguishing between accused based on age, alleged involvement, and necessity of custodial interrogation. The judgment underscores that mere inclusion in an FIR does not justify denial of bail, particularly where no direct act is attributed to an elderly accused.
Background & Facts
The Dispute
The petitioners, Sindhu Jayaram (Accused No. 1, aged 53) and Narayankutty Menon (Accused No. 2, aged 90), are named in Crime No. 474/2026 registered at Irinjalakuda Police Station, Thrissur. The case arises from alleged physical assault on a home nurse employed in their household. The complainant, a woman working as a home nurse at the petitioners’ residence in Nadavarambu Colonypadi, alleged that on 04.05.2026, she was brutally assaulted, resulting in fractures to her left femur and right thumb.
Key Facts
- The alleged incident occurred on 04.05.2026 at the petitioners’ residence
- The complainant reported the incident to police on 06.05.2026, leading to registration of FIR No. 474/2026
- The FIR names both petitioners as accused under Sections 126(2), 115(2), 118(1), 118(2), 296(b), and 351(2) read with Section 3(5) of the Bharatiya Nyaya Sanhita, 2023
- The complainant’s medical certificate, dated 23.05.2026, confirms fractures to the left femur and right thumb, attributed to blunt force trauma
- Accused No. 2, Narayankutty Menon, is 90 years old and allegedly present at the scene but no specific act of violence is attributed to her in the FIR or case diary
- Accused No. 1, Sindhu Jayaram, is alleged to have used a wooden stick to strike the complainant’s right hand and stamped on her hip with her foot
- The complainant had previously filed a complaint with the Emergency Response System on 04.05.2026 at 09:00 hours
- The FIR was registered on 06.05.2026
- The Principal Sessions Court, Thrissur, had earlier dismissed an application for anticipatory bail on 21.05.2026 in BA No. 1037/2026
Procedural History
- 04.05.2026: Alleged assault on the complainant
- 06.05.2026: FIR registered at Irinjalakuda Police Station, Crime No. 474/2026
- 21.05.2026: Principal Sessions Court, Thrissur, dismissed anticipatory bail application (BA No. 1037/2026)
- 16.06.2026: Bail application filed under Section 482 of the Bharatiya Nagarik Suraksha Sanhita, 2023 before the Kerala High Court
The Parties' Positions
For the Petitioners
The counsel for the petitioners contended that the accused are innocent and falsely implicated. He emphasized that no material evidence directly links Accused No. 2 to any overt act of violence. He further submitted that Accused No. 1 is willing to surrender and cooperate with the investigation.
For the Respondent
The Senior Public Prosecutor argued that the nature of the injuries and the alleged use of a weapon warranted denial of pre-arrest bail to prevent interference with investigation and potential witness tampering.
Relief Sought
The petitioners sought pre-arrest bail under Section 482 of the BNSS, seeking protection from arrest until the investigation is complete, subject to reasonable conditions.
The Legal Issue
The central question was whether pre-arrest bail under Section 482 of the Bharatiya Nagarik Suraksha Sanhita, 2023 can be granted to an elderly accused with no specific overt act attributed to them, despite serious allegations against a co-accused.
Arguments Presented
For the Petitioner
The learned counsel relied on the principle that custodial interrogation is not mandatory for all accused, especially where no direct involvement is established. He cited Arnesh Kumar v. State of Bihar to argue that arrest should not be automatic and that age and lack of active participation are relevant factors. He emphasized that Accused No. 2, being 90 years old, poses no flight risk or threat to investigation.
For the Respondent
The Senior Public Prosecutor contended that the gravity of the injuries and the use of a weapon necessitated custodial interrogation for both accused to ensure a fair investigation. He argued that granting bail to either accused might lead to evidence tampering or witness intimidation.
The Court's Analysis
The Court undertook a careful review of the FIR and case diary. It noted that while Accused No. 1 is specifically alleged to have used a wooden stick and inflicted physical trauma, no such act is attributed to Accused No. 2. The Court observed:
"No specific overt act has been attributed against the accused No.2/applicant No.2 who is aged 90 years. Hence I am of the view that his custodial interrogation is not necessary and he can be granted pre-arrest bail."
The Court further held that the allegations against Accused No. 1, including the use of a weapon and causing serious fractures, warranted continued custodial scrutiny. However, the Court accepted the petitioner’s offer to surrender and imposed strict conditions to ensure cooperation without detention.
The Court emphasized that the purpose of pre-arrest bail is not to shield the accused from investigation, but to prevent unnecessary arrest where the circumstances do not justify it. The distinction drawn between the two accused reflects a nuanced application of proportionality and necessity under Section 482 BNSS.
The Verdict
The bail application was allowed in part. Accused No. 2, Narayankutty Menon, was granted pre-arrest bail subject to a bond of Rs. 1,00,000 with two solvent sureties of the same amount. She must appear before the investigating officer every Saturday between 10:00 a.m. and 11:00 a.m., not leave Kerala without court permission, and not tamper with evidence or contact witnesses. Accused No. 1, Sindhu Jayaram, was directed to surrender before the investigating officer within one week of the order. Upon arrest, she must be produced before the court without delay, and any bail application filed by her must be decided on the same day.
What This Means For Similar Cases
Age and Lack of Overt Act Can Justify Pre-Arrest Bail
- Practitioners may now argue that elderly accused (70+ years) with no specific allegations of violence are not automatically subject to arrest
- Courts must examine individualized involvement, not treat all accused in a case uniformly
- The burden shifts to the prosecution to demonstrate why custodial interrogation is essential for each accused
Surrender as a Condition Can Replace Custody
- Courts may accept surrender as a substitute for arrest where the accused is cooperative and poses no flight risk
- Conditions such as regular reporting, non-contact with witnesses, and geographical restriction are sufficient to safeguard investigation
- This approach reduces overcrowding in police custody and respects the dignity of vulnerable accused
Proportionality Must Guide Bail Decisions Under BNSS
- The judgment reinforces that Section 482 BNSS is not a blanket bar to pre-arrest bail
- Courts must balance the seriousness of allegations with the necessity of detention
- This precedent supports applications for pre-arrest bail in cases involving multiple accused where roles are unevenly alleged
