Jomon Varghese, Mini and Jomsy v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MRS. JUSTICE M.R.ANITHA** **FRIDAY, THE 27[TH] 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 3[rd] 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 B.A.No.6236 OF 2021 3 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. B.A.No.6236 OF 2021 4 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 B.A.No.6236 OF 2021 5 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. B.A.No.6236 OF 2021 6 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 B.A.No.6236 OF 2021 7 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 B.A.No.6236 OF 2021 8 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 B.A.No.6236 OF 2021 9 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 1[st] 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**