Kerala High Court
M.C Paulose vs State Of Kerala on 12 February, 2025
Author: P.V.Kunhikrishnan
Bench: P.V.Kunhikrishnan
2025:KER:11490
BAIL APPL. NO. 1223 OF 2025
1
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN
WEDNESDAY, THE 12TH DAY OF FEBRUARY 2025 / 23RD MAGHA, 1946
BAIL APPL. NO. 1223 OF 2025
CRIME NO.14/2025 OF Pothanikadu Police Station, Ernakulam
PETITIONER/ACCUSED:
M.C PAULOSE,
AGED 70 YEARS
SON OF CHERIYAN, MUKALEL HOUSE, POTHANIKAD,
KOTHAMANGALAM, PIN - 686671
BY ADV PEEYUS A.KOTTAM
RESPONDENT/STATE:
1 STATE OF KERALA,
REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF
KERALA, ERNAKULAM, COCHIN, PIN - 682031
2 STATION HOUSE OFFICER,
POTHANIKAD POLICE STATION, 2M3M+QG7, POTHANICAD -
PAINGATTOOR RD, POTHANICAD, KERALA, PIN - 686671
OTHER PRESENT:
SRI.HRITHWIK C.S., SR.PP
THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON
12.02.2025, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
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BAIL APPL. NO. 1223 OF 2025
2
P.V.KUNHIKRISHNAN, J.
--------------------------------
B.A.No.1223 of 2025
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Dated this the 12th day of February, 2025
ORDER
This Bail Application is filed under Section 482 of
Bharatiya Nagarik Suraksha Sanhita.
2. Petitioner is the accused in Crime No.14/2025
of Pothanikad Police Station. The above case is registered
against the petitioner alleging offences punishable under
Sections (3)(w) and 3(2)(va) of the Scheduled Caste and
Scheduled Tribes (Prevention of Atrocities) Act, 1989 (for short,
SC/ST Act) and Sections 7 and 8 of the Protection of Children
from Sexual Offences Act (for short, POCSO Act).
3. The defacto complainant belongs to Hindu
Harijan Community. It is further alleged that one day during
January, 2024 at about 5 p.m., when the defacto complainant
was going back to her house after attending class, the petitioner
came in a small car and asked the defacto complainant to get
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into the car and accordingly she sat in the back seat of the car.
After sometime, the petitioner stopped his car and caught on
her left breast and right thigh. The defacto complainant further
alleged that petitioner insisted not to disclose this to anybody.
After moving the car a little further she asked to stop the car
and when reached near her house she got down from his car.
On 03.01.2025, nearly after one year from the alleged date of
incident, when the defacto complainant along with her cousin
went to the Pothanikad Government Hospital, she happened to
see the petitioner there and she alleged that he stared on her
and then she remembered the past incident. On that night she
disclosed about these facts to her cousin and on next day to
sister Dona in this school. On the basis of the said allegation,
the above crime is registered.
4. Heard counsel for the petitioner and the Public
Prosecutor.
5. The counsel for the petitioner submitted that
even if the entire allegations are accepted, no offence under
SC/ST Act is attracted. The counsel submitted that the alleged
incident happened about one year back. The counsel submitted
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that the petitioner is aged 70 years and the allegation against
the petitioner is false. The counsel also submitted that the
petitioner is ready to abide any conditions if this Court grant
him bail. The Public Prosecutor opposed the bail application.
The Public Prosecutor made available the First Information
Statement given by the victim.
6. This Court considered the contentions of the
petitioner and the Public Prosecutor, and also perused the First
Information Statement. Except the statement in the First
Information that the victim belongs to Pulaya Community, there
is nothing noted in the First Information Statement to the effect
that the accused committed the offence knowing that she
belongs to Pulaya Community. In such circumstances, it is very
difficult to say that the provisions of SC/ST Act is attracted. But
I make it clear that this observation is made only for the
purpose of deciding this bail application and the Investigating
Officer is free to investigated the matter untrammeled by any of
the observation made in this case. What remains is the offences
under Sections 7 and 8 of the POCSO Act. Admittedly the
maximum punishment that can be imposed for the offences
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BAIL APPL. NO. 1223 OF 2025
alleged under the POCSO Act is upto seven years. In Arnesh
Kumar v. State of Bihar and Another [(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
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 its satisfaction that such person
had committed the offence punishable as
aforesaid. 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.
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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."
Keeping in mind the above principle, I think custodial
interrogation of the petitioner is not necessary. The prosecution
can prove the case through oral evidence.
7. Moreover, it is a well accepted principle that
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the bail is the rule and the jail is the exception. The Hon'ble
Supreme Court in Chidambaram. P v Directorate of
Enforcement [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.
8. Recently the Apex Court in Siddharth v State
of Uttar Pradesh and Another [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
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the existence of the power to arrest and
the justification for exercise of it. (Joginder
Kumar v. State of UP and Others (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."
9. In Manish Sisodia v. Central Bureau of
Investigation [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.
10. Considering the dictum laid down in the above
decision and considering the facts and circumstances of this
case, I think bail can be granted after imposing stringent
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conditions.
Therefore, 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
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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.
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 [2020 (1) KHC 663].
7. If any of the above conditions are violated
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by the petitioner, the jurisdictional Court
can cancel the bail in accordance to law,
even though the bail is granted by this
Court. The prosecution and the victim are
at liberty to approach the jurisdictional
Court to cancel the bail, if any of the above
conditions are violated.
sd/-
P.V.KUNHIKRISHNAN
JV JUDGE
