Mere Allegations of Antecedents Without Conviction Can't Defeat Right to Anticipatory Bail: Kerala High Court

"Freedom of the individual is as necessary for the survival of the society as it is for the egoistic purposes of the individual" – In a significant ruling on the contours of anticipatory bail under the newly enacted Bharatiya Nagarik Suraksha Sanhita, 2023, the Kerala High Court in Sharafali and Others v. State of Kerala, allowed a bail application filed by three accused in a case involving charges of wrongful restraint, criminal intimidation, and grievous hurt under Sections 126(2), 115(2), 118(2), and 351(2) read with Section 3(5) of the Bharatiya Nyaya Sanhita, 2023 (BNS). Justice K. Babu observed that “the petitioners have established a prima facie case for getting the benefits contained in Section 482 of the BNSS”, and went on to reiterate well-settled principles that anticipatory bail should not be denied merely on allegations unsupported by a subsisting conviction.

The case stems from Crime No.720/2025 registered at Vengara Police Station, Malappuram, involving a scuffle between the petitioners and the de facto complainant, allegedly triggered by a dispute regarding dumping of chicken waste.

Petitioners’ Injuries and Medical Records Counter Prosecution Allegations

The prosecution alleged that on 6 November 2025, at around 9 PM near K.T. Para Super Market, the petitioners, acting in furtherance of a common intention and due to prior animosity, “wrongfully restrained the de facto complainant, threatened to kill him and caused a fracture to his middle finger using an iron rod.” It was further claimed that the petitioners assaulted a relative of the complainant, Yunus, dislocating his right hand.

However, the defence turned the tables by producing medical records (Annexures A3 to A5) showing that the petitioners themselves had sustained grievous injuries during the incident and were treated at Taluk Headquarters Hospital, Tirurangadi. The petitioners alleged that the police, under political influence, had refused to register a counter-complaint, thereby painting the petitioners as the sole aggressors. This selective registration, the Court noted, formed a relevant backdrop to assess the motive and context of the accusations.

“Past Acquittal Cannot Be Ignored”: Court Discards Reliance on Alleged Antecedents

The prosecution also attempted to oppose the anticipatory bail plea citing criminal antecedents of the first petitioner. However, the petitioners countered this by producing Annexure A7, a copy of a 2023 judgment from the Special POCSO Court, Manjeri, showing acquittal in a prior case. The Court accepted this defence, stating unequivocally:

“Mere allegation of antecedents without a subsisting conviction cannot be a decisive ground to deny anticipatory bail.”

This observation reinforces a growing judicial trend that rejects using stale or unproven allegations as grounds to curtail personal liberty, especially where the accused can demonstrate they are not likely to abscond or tamper with evidence.

Constitution Bench Principles Reaffirmed – Anticipatory Bail Not a Matter of Charity

Relying on the landmark rulings in Gurbaksh Singh Sibbia, Siddharam Satlingappa Mhetre, and Sushila Aggarwal, the Court elaborated on the governing principles for anticipatory bail under Section 482 of BNSS (which now corresponds to former Section 438 CrPC). Justice K. Babu quoted extensively from Gurbaksh Singh Sibbia, observing: “A person seeking anticipatory bail is still a free man entitled to the presumption of innocence. He is willing to submit to restraints on his freedom... in consideration of the assurance that if arrested, he shall be enlarged on bail.”

The Court also reiterated that arrest must be a last resort, quoting Siddharam Mhetre: “Arrest should be the last option and it should be restricted to those exceptional cases where arresting the accused is imperative in the facts and circumstances.”

The Court further noted that there was no apprehension or material suggesting that the petitioners would influence witnesses, tamper with evidence, or abscond, thus tipping the balance in favour of granting protection from arrest.

Conditions Imposed to Ensure Cooperation and Non-Misuse

While granting anticipatory bail, the Court directed the petitioners to appear before the Investigating Officer on 26 December 2025, and further imposed standard conditions, including:

• Execution of a bond of ₹50,000 each with two solvent sureties.

• Prohibition on influencing witnesses, tampering with evidence, or committing similar offences.

• Full cooperation with the investigation, including submission to 'deemed custody' for the purposes of discovery or identification, as recognised in Sibbia and Sushila Aggarwal.

• Liberty to the jurisdictional court to cancel bail in case of any breach.

The decision showcases the Kerala High Court's clear message that personal liberty must not be sacrificed at the altar of unsubstantiated allegations, especially when the material before the court suggests a possibility of false implication and retaliatory motive. The judgment is also notable for applying the transitional provisions of the new BNSS and BNS with clarity, while anchoring its reasoning firmly in constitutional values and precedents laid down by the Supreme Court.

The case also highlights the emerging challenges courts may face in balancing new statutory frameworks like BNSS and BNS with existing jurisprudential safeguards, especially in criminal procedure.

Date of Decision: 11 December 2025