Kerala High Court
Benny V. Varghee vs State Of Kerala on 20 January, 2025
Author: P.V.Kunhikrishnan
Bench: P.V.Kunhikrishnan
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BAIL APPL. NO. 11232 OF 2024
1
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN
MONDAY, THE 20TH DAY OF JANUARY 2025 / 30TH POUSHA, 1946
BAIL APPL. NO. 11232 OF 2024
CRIME NO.1131/2024 OF Mulanthuruthy Police Station
AGAINST THE ORDER/JUDGMENT DATED IN Bail Appl. NO.10212 OF
2024 OF HIGH COURT OF KERALA
PETITIONER/ACCUSED:
BENNY V. VARGHEE
AGED 50 YEARS
S/O.VARGHESE, VENGINIKKATTUKUDILIL HOUSE,
PAZHOOR P.O., PIRAVOM, ERNAKULAM, PIN - 686664
BY ADVS. GEO PAUL
C.R.PRAMOD
JACOB GEORGE PALLATH
HARIKRISHNAN A.S.
AKSHAI.K.R.
C.B.GAUTHAM
MARIYAM MATHEWS
RESPONDENT/S:
STATE OF KERALA
REPRESENTED BY PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, PIN - 682031
ADV.HRITHWIK C.S., SR PP
THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON
20.01.2025, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
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BAIL APPL. NO. 11232 OF 2024
2
P.V.KUNHIKRISHNAN, J.
--------------------------------
B.A.No.11232 of 2024
----------------------------------------------
Dated this the 20th day of January, 2025
ORDER
This Bail Application is filed under Section 482 of
Bharatiya Nagarik Suraksha Sanhita.
2. Petitioner is the accused in Crime
No.1131/2024 of Mulanthuruthy Police Station. The above case
is registered against the petitioner alleging offences punishable
under Sections 75(1)(i), 75(1)(ii) and 75(1)(iv) of the Bharatiya
Nyaya Sanhita (for short, BNS), Section 75 of the Juvenile
Justice (Care and Protection of Children) Act and Sections 8, 7,
10, 9c, 12 and 11(iv) of Protection of Children from Sexual
Offences Act.
3. The prosecution case is that on 14-11-2024,
after the Piravom Sub District Youth Festival of Higher
Secondary Schools were completed at around 10 PM, the
petitioner was asked to drop the victim at home along with
another student and her mother. The petitioner dropped the girl
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and her mother at their house at Pambra only a few kilometers
from his house. The prosecution alleges that on the way to drop
the victim, the petitioner asked the victim to place her face on
his left palm and further asked the victim for a kiss and thus
committed the alleged offences.
4. Heard counsel for the petitioner and the Public
Prosecutor.
5. The counsel for the petitioner submitted that
the allegation against the petitioner is false. The counsel
submitted that the alleged incident happened on 14.11.2024
and the complaint is filed on 06.12.2024. The counsel further
submitted that after the alleged incident, the student was
coming to the school and she attended the class of the
petitioner. The counsel also submitted that it is a false case
foisted against the petitioner. The Public Prosecutor opposed
the bail application and submitted that serious allegations are
there against the petitioner.
6. This Court considered the contentions of the
petitioner and the Public Prosecutor. It is true that there is
some delay in filing the complaint. But for that reason alone,
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the petitioner cannot be released on bail because that is a
matter to be investigated by the Investigating Officer and that is
a matter of evidence before the jurisdictional court. But the
offences alleged against the petitioner are all offences in which
the maximum punishment that can be imposed is below 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
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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
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(a) to (e) of clause (1) of Section 41 CrPC. "
Keeping in mind the above principle, I am of the considered
opinion that custodial interrogation of the petitioner may not be
necessary. The prosecution can prove the case through oral
evidence. I think bail can be granted after imposing stringent
conditions.
7. 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 [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
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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 (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."
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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
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
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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 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
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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
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
