Jomon Varghese vs The State Of Kerala
2021 Latest Caselaw 17614 Ker

                     IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                     PRESENT

                      THE HONOURABLE MRS. JUSTICE M.R.ANITHA

           FRIDAY, THE 27TH DAY OF AUGUST 2021 / 5TH BHADRA, 1943

                           BAIL APPL. NO. 6236 OF 2021

          CRIME NO.901/2021 OF Njarakkal Police Station, Ernakulam

 AGAINST THE ORDER/JUDGMENT IN CRMC 1563/2021 OF SESSIONS COURT, ERNAKULAM,

                                    DIVISION

PETITIONER/ACCUSED 1 TO 3:

     1      JOMON VARGHESE
            AGED 28 YEARS
            SON OF VARGHESE, RESIDING AT KUTTUNGAL HOUSE, OLANAD,
            VARAPPUZHA.P.O,ERNAKULAM DISTRICT-683517.
     2      MINI,
            AGED 50 YEARS
            W/O.VARGHESE, RESIDING AT KUTTUNGAL HOUSE, OLANAD,
            VARAPPUZHA.P.O,
            ERNAKULAM DISTRICT-683517.
     3      JOMSY,
            AGED 25 YEARS
            W/O.JOFFIN, RESIDING AT KUTTUNGAL HOUSE, OLANAD,
            VARAPPUZHA.P.O,
            ERNAKULAM DISTRICT-683517.
            BY ADVS.
            T.MADHU
            C.R.SARADAMANI
            SHAHID AZEEZ


RESPONDENTS/STATE:

     1      THE STATE OF KERALA
            REPRESENTED BY THE PUBLIC PROSECUTOR,
            HIGH COURT OF KERALA,ERNAKULAM-682031.
     2      THE STATION HOUSE OFFICER
            NJARAKKAL POLICE STATION,ERNAKULAM DISTRICT-683503.

            PUBLIC PROSECUTOR SMT. SEETHA S.

      THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 27.08.2021, THE

COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 B.A.No.6236 OF 2021                  2



                                     ORDER

Dated this the 27th day of August,2021

Petitioners are accused No.1 to 3 in crime No.901/2021 of

Njarakkal Police Station, Ernakulam District, registered under

Section 498A r/w. 34 IPC.

2. Second petitioner is the mother-in-law and the 3rd

petitioner is the sister-in-law of the defacto complainant. The

marriage between the first petitioner and the defacto

complainant was solemnized on 27.12.2020 as per the rites and

customs of the community which they belong. At the time of

marriage, she has been gifted 20 sovereigns of gold ornaments

out of which 13 sovereigns of gold ornaments were

misappropriated by the accused persons. It is also alleged that

she had been subjected to physical and mental torture at the

instance of petitioners 1 to 3/accused Nos.1 to 3 for the period

starting from 17.2.2021 to 14.4.2021.

3. The learned Public Prosecutor filed a report and

supported prosecution case fully. According to him detailed

investigation is necessary and more evidence has to be collected

and if bail is granted it would adversely affect the investigation.

4. Analyzing the report and on going through the FIS

given by the defacto complainant, it is seen that there is

allegation of physical violence of slapping on face once on

17.2.2021 at the bedroom by the first petitioner and shaking and

pushing by petitioners 2 and 3 respectively on 11.4.2021 when

defacto complaint, parents and brother went to the matrimonial

home. However, there is no hospitalisation or allegation of

sustaining any injury out of the above incidents. So allegations

against the petitioners prima facie lacks the ingredients to

attract an offence under Section 498A IPC.

5. Annexure A1 is the copy of the order in

Crl.M.C.No.1563/2021 of the Sessions Court dismissing the

prayer for anticipatory bail. Thereafter the present bail

application has been filed before this Court. It has been found by

the Sessions Judge that the applicant must show that he has

reason to believe that he may be arrested in a non bailable

offence and if it is only a mere fear and not belief, Section 438

Cr.P.C. cannot be invoked. It is further found that the language

of Section requires the applicant to show that he has reason to

believe that he may be arrested and a belief can be said to be

founded on reasonable grounds only if there is something

tangible to go on the basis of which it can be said that the

applicants apprehension that they may be arrested is genuine.

The Sessions Judge relied on Enforcement Officer, TED,

Bombay v. Bher Chand Tikaji Bora & Anr. [(1999) 5 SCC

720 : 1999 KHC 3925]. But in that case the allegation against

the accused was that he has violated the provisions of Foreign

Exchange Regulation Act which is a menace to the society and

unless the accused alleges and establishes that he is being

unnecessarily harassed by the investigating agency the court

would not be justified in invoking the jurisdiction under Section

438 Cr.P.C. and granting anticipatory bail. That was a case in

which High Court granted anticipatory bail and in the facts and

circumstances the Hon'ble Apex Court found that High Court

was wholly unjustified in invoking the jurisdiction under Section

438 Cr.P.C. Obviously the fact situation of that case has no

application to the case in hand.

6. Likewise George v. State of Kerala and Anr [2009

(1) KLT 277 : 2009 (1) KHC 160] was relied on by the

Sessions Judge to find that a reasonable apprehension of arrest

is an essential requirement to make the provisions under Section

438 Cr.P.C. But in that case summons was issued to the accused

in committal proceedings in a case charged under Section 55(a)

of Abkari Act, 1907, and accused approached the court

apprehending arrest. In the said circumstances that only a

summons has been issued to him this Court was of the view that

there cannot be any reasonable apprehension of arrest and

hence prayer for anticipatory bail was refused. It also has no

relevance to the case in hand.

7. In Adri Dharan Das v. State of West Bengal

[(2005) 4 SCC 303 : 2005 KHC 628] the dictum laid down

was that interim order restraining arrest while dealing with an

application under S.438 Cr.P.C. will amount to interference in

investigation and it can not be done. But it has been held to be

not good law as per the dictum laid down in Sushila Aggarwal

& Ors v. State (NCT of Delhi) [2020 (1) KHC 663 : (2020) 5

SCC 1].

8. The Sessions Judge also relied on Arnesh Kumar v.

State of Bihar & Anr. [(2014) 8 SCC 273] and the specific

direction given by the Apex Court to the police and courts

relating to arrest and detention in cases where the offence

involved is punishable with imprisonment not exceeding seven

years. The directions to Magistrate not to mechanically order

detention in such cases also has been emphasized. Thereafter

the Sessions Court observed that petitioners/accused No.1 to 3

can approach the jurisdictional magistrate court under Section

437 Cr.P.C.

9. In Arnesh Kumar's case the Apex Court has given

specific directions to the police officers and also the judicial

magistrates. But ultimately the prayer for anticipatory bail was

allowed by the Apex Court. Section 437 Cr.P.C will have

application when a person accused of, or suspected of the

commission of a non bailable offence is arrested or detained with

out warrant by an officer in charge of police station or appears

or is brought before a court etc. It is to avoid all those ordeals,

the parties apprehending arrest are approaching the Sessions

Court or this court by filing petitions for anticipatory bail. That

cannot be simply refused by stating that applicant has no

reason to believe that they would be arrested.

10. It is not revealed from the order of sessions Court as to

whether any report was filed by the respondent and whether

there is any specific statement in the report that they have no

intention to arrest the petitioners. On the other hand the order

would show that the learned Public Prosecutor submitted to pass

appropriate orders. That would indicate that there was no

objection to the respondent in allowing the petition.

11. The report filed before this Court by the SHO,

Njarakkal police station would specifically state that the

investigation made so far reveal the commission of offence by

the petitioners and evidence has to be collected and if bail is

granted there is possibility of first accused going abroad. So

there seems to have substance in the apprehension of the

petitioners/accused that they would be arrested in the above

crime. When a crime under Section 498A is registered against

the petitioners and the investigating officer filed report stating

that the investigation made reveal the commission of offence and

evidence has to be collected further and oppose the grant of bail,

the court cannot come to a conclusion that there is no

apprehension of arrest. It is a fact which has to be discerned by

the court from the attending circumstances by evaluating the

averments in the petition and material if any produced from the

side of the petitioners and records produced from the side of the

respondent-State through the investigating agency. So in such

circumstances dismissal of the petition, directing the petitioners

to approach the jurisdictional magistrate under Section 437

Cr.P.C will cause miscarriage of justice in genuine cases.

12. Even the decision in Arnesh Kumar's case the

directions of the Supreme Court and the guidelines were given

to prevent the misuse of power of police to arrest without

warrant in cases where offence is punishable with imprisonment

for a term which may be less than seven years or which may

extend to seven years. The safeguards made by the Apex Court

is to caution unnecessary arrest and detention. There may be

cases registered under Section 498A against the husband and

in-laws without sufficient materials so as to attract the offence.

So in such cases if the parties approaches the Sessions Court or

the High Court by filing petitions under Section 438 Cr.P.C for

invocation of powers of the respective courts under Section 438

and the court finds that the materials produced by the

prosecution through the FIR, FIS and the report, if any, by the

investigating officer reveals that prima facie there are no

material to attract the offence under Section 498A, the hands of

the courts are not tied to exercise the jurisdiction vested under

Section 438 and the parties cannot be dragged to the

jurisdictional magistrate court under Section 437 Cr.P.C.

13. Based on the above, I find it just and proper to grant

pre-arrest bail to the petitioners on the following conditions :

(i) The petitioners shall be released on bail on executing bond for a sum of Rs.30,000/- (Rupees thirty thousand only) each with two solvent sureties for the like sum each in the event of arrest by the police in connection with the above crime.

(ii) The petitioners shall appear before the investigating officer for interrogation as and when required by him in writing. They shall co-operate with the investigation of

the case.

(iii) The petitioners 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 him from disclosing such facts to the court or to any police officer or tamper with the evidence.

(iv) The petitioners shall not commit any offence while on bail.

(v) The 1st petitioner shall surrender his passport and if he has no passport he shall file an affidavit to that effect before the Court concerned.

In case of violation of any of the above conditions, the learned

Magistrate is empowered to cancel the bail in accordance with the

law.

Sd/-

                                                   M.R.ANITHA

shg                                                   JUDGE