High Court of KeralaSingle Judge2020-07-24Bail Application Allowed; petitioner released o...

VARGHESE THOMAS v. THE STATE OF KERALA

Case / Petition Number:BA No.9110 of 2019

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: P.V.KUNHIKRISHNAN
Judgment Date: 2020-07-24
Court Decision / Holding: Bail application allowed under Section 438 CrPC with stringent conditions: (i) petitioner to appear before the Investigating Officer within ten days for interrogation; (ii) if arrest is proposed post-interrogation, release on bail on a bond of Rs. 50,000 with two solvent sureties; (iii) petitioner to appear before IO on Mondays and Fridays at 10:00 AM until final report; (iv) petitioner to produce passport; (v) petitioner to comply with social distancing guidelines; default may lead to cancellation of bail by the jurisdictional court.
Final Disposition: Bail Application Allowed; petitioner released on bail under Section 438 CrPC with conditions (i)-(v) as enumerated in the order.

Parties to the Case

Appellants / Petitioners

VARGHESE THOMAS

Respondents

The State of Kerala represented by the Circle Inspector of Police, Vanchiyoor Police Station, through the Public Prosecutor, High Court of Kerala, Ernakulam, Kochi-31
Addl. R2 Babu Daniel (Impleaded as Addl. R2 as per order dated 21/1/20 in CRL. MA 1/20 in BA 9110/19)

Legal Representation & Advocates

Counsels for Petitioners

• Sri. Rinu. S. Aswan
• Sri. G. Sreekumar (Chelur)

Counsels for Respondents

• Sri. Alexander George
• Sri. Renjith T.R., PP

Case Synopsis & Summary

This is a bail application under Section 438 CrPC filed by the third accused Varghese Thomas in Crime No.185/CB/TVM/2017 of CBCID, Thiruvananthapuram, challenging the order in CRMC 635/2016 of the District Court & Sessions Court, Thiruvananthapuram. The prosecution alleges offences punishable under sections 406 and 420 read with 34 IPC, arising from allegations that the defacto complainant (resident in the USA) and his brothers had property disputes, and that the petitioner, who acted as the defacto complainant’s Power of Attorney Holder, collected Rs 1,79,64,000 towards court fees and other charges for civil litigation conducted through the POA. The defacto complainant contends misappropriation by the petitioner and other accused. The petitioner maintains he acted in accordance with law; the 1st accused is a lawyer and the funds were handed over to him. The 1st and 2nd accused have already been granted bail under Section 438 CrPC. The court notes disputed questions of fact and that the matter should be investigated in detail, but, considering the prior bail grants to co-accused and social distancing imperatives due to COVID-19, the court grants bail under stringent conditions. The order relies on the general bail principle that bail is the rule and jail the exception, as reiterated in Chidambaram and guided by Supreme Court COVID-19 directives and a Full Bench directive in W.P(C) No.9400 of 2020.

Provisions of Law Cited

Section 406 IPCSection 420 IPCSection 34 IPCSection 438 Cr.P.C.

Legal Doctrines & Maxims

Bail is the rule and jail is the exception

Submissions & Arguments

Contentions of Appellants / Petitioners

Counsel for the petitioner submitted that as the Power of Attorney Holder of the defacto complainant, the petitioner acted strictly in accordance with law. The amount alleged to have been collected was handed over to the lawyer (1st accused). The 1st and 2nd accused were already granted bail, and civil disputes between the parties are pending in Civil Courts. The petitioner is ready to comply with conditions and cooperates with the investigation. The matter involves disputed questions of fact; it is a matter for detailed investigation by the IO, and the court should not decide the facts at the bail stage. In light of COVID-19, social distancing norms and directive from higher courts justify granting bail with stringent conditions.

Contentions of Respondents

Opposing bail, the defacto complainant’s counsel contended that a huge amount was misappropriated by the petitioner and other accused, and the investigation must be completed without delay. The Public Prosecutor opposed bail on grounds that the petitioner’s release could hinder the investigation and that the presence of the accused is necessary to facilitate inquiry. The court should be cautious given the alleged scale of misappropriation and the ongoing civil disputes between the parties.

Cited Precedents (3)

Case Name	Citation	Treatment	Explanation
Re: Contagion of COVID-19 Virus In Prisons	Suo Motu Writ Petition (C) No.1 of 2020	Positive	Cited for salutary directions to minimize prison populations and ensure social distancing during the COVID-19 pandemic; used to justify interim procedural considerations for bail in a pandemic context.
W.P(C) No.9400 of 2020	W.P(C)No.9400 of 2020	Positive	Full Bench directives for minimizing the number of inmates; cited as supportive guidelines relevant to bail during the pandemic.
Chidambaram P. v. Directorate of Enforcement	2019 (16) SCALE 870	Positive	Reiterated the bail rule-escape principle; used to justify granting bail to the petitioner with conditions to ensure fair trial and prevent unnecessary detention.

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Extracted Judgment Text

Exact text extracted from official judgment records.

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN** **FRIDAY, THE 24TH DAY OF JULY 2020 / 2ND SRAVANA, 1942** **Bail Appl..No.9110 OF 2019** **AGAINST THE ORDER/JUDGMENT IN CRMC 635/2016 OF DISTRICT COURT & SESSIONS COURT,TRIVANDRUM** ## **CRIME NO.185/CB/TVM/2017 OF CBCID, THIRUVANANTHAPURAM , Thiruvananthapuram** ## **PETITIONER/ACCUSED NO.3.:** **VARGHESE THOMAS AGED 64 YEARS S/O.M.V. THOMAS, T.C.NO.10/1603, MATHIRAPAALLIL, MANNATHALA, THIRUVANANTHAPURAM, PIN-695015.** **BY ADVS. SRI.RINU. S. ASWAN SRI.G.SREEKUMAR (CHELUR)** ## **RESPONDENTS/RESPONDENTS:** **1 THE STATE OF KERALA REPRESENTED BY THE CIRCLE INSPECTOR OF POLICE, VANCHIYOOR POLICE STATION, THROUGH THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, KOCHI-31.** **2 ADDL. R2 BABU DANIEL , AGE AND OTHER DETAILS NOT KNOWN S/O KG DANIEL VELAVOOR CHARUVILA VEEDU AMBALAKKARA DESOM, VALAKKOM VILLAGE KOTTARAKKARA THALUK,KOLLAM-682316 (IS IMPLEADED AS ADDL. R2 AS PER ORDER DATED 21/1/20 IN CRL. MA 1/20 IN BA 9110/19)** ## **R2 BY ADV. SRI.ALEXANDER GEORGE** **BY ADV.** **SRI.RENJITH.T.R., PP** **THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 24.07.2020, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** B.A.No.9110 of 2019 2 ## **P.V.KUNHIKRISHNAN, J** -------------------------------- ## B.A.No.9110 of 2019 ------------------------------- Dated this the 24[th] day of July, 2020 ## **O R D E R** This Bail Application filed under Section 438 of Criminal Procedure Code was heard through Video Conference. 2. Petitioner is the 3[rd] accused in CB Cr. 185/CB/TVM/17. Above case is registered against the petitioner and two others alleging offences punishable under Section 406, 420 read with 34 of IPC. 3. The prosecution case is that, the defacto complainant is residing in USA. There are some property disputes between the defacto complainant and his brothers. The petitioner herein was the Power of Attorney Holder of the defacto complainant. Civil cases are pending before the Kollam and Kottarakkara Civil Courts. According to the defacto complainant, the 1[st] accused had received an amount B.A.No.9110 of 2019 3 of Rs.1,79,64,000/- (Rupees One Crore Seventy Nine Lakhs and Sixty Four only) towards court fee and other charges for conducting those cases through the Power of Attorney Holder, who is the petitioner herein. But the case of the defacto complainant is that, the petitioner and the other accused cheated the defacto complainant and misappropriated the amount. 4. Heard the learned counsel for the petitioner and the learned Public Prosecutor. 5. The counsel for the petitioner submitted that, the petitioner is the Power of Attorney Holder of the defacto complainant. He acted only in accordance with law. According to the learned counsel, the 1[st] accused is a lawyer. The amount received by him is handed over to the lawyer. The 1[st] and 2[nd] accused were already released on bail under Section 438 Cr.P.C., as per Annexure VI order. The petitioner is ready to abide any conditions, if this Court grant him bail. 6. The defacato complainant appeared through a B.A.No.9110 of 2019 4 lawyer. The defacato complainant seriously opposed the bail application. The learned counsel for the defacto complainant submitted that, huge amount is misappropriated by the petitioner and other accused. In such situation, this Court may not pass order under Section 438 of Cr.P.C. 7. The learned Public Prosecutor also opposed the bail application. He submitted that, the presence of the petitioner is necessary for completing the investigation. 8. After hearing both sides, I think this bail application can be allowed in the light of the fact that, the 1[st] and 2[nd] accused are already released on bail as per order dated 08.04.2016 in Crl.M.C.No.635/2016 by the Sessions Judge, Thiruvananthpuram. It is a case of monetary disputes. Civil cases are pending before the Civil Court between the defacto complainant and his brothers. The amount paid towards the court fee and other expense are misappropriated by the Power of Attorney Holder and the lawyer is the allegation. The lawyer is already released on bail as per Annexure VI. There are disputed questions of facts in this B.A.No.9110 of 2019 5 case. This Court while considering this bail application under Section 438 Cr.P.C. cannot decided the same. It is a matter to be investigated by the Investigating Officer in detail. This bail application is pending before this Court from 10.12.2019 onwards. The learned counsel for the petitioner submitted that, there is an oral direction to the Investigating Officer not to arrest the petitioner. That may be the reason why the investigation itself delayed. Considering the entire facts and circumstances of this case, this bail application can be allowed on stringent conditions. I am allowing this bail application, considering the fact that the other accused is already released on bail under Section 438 Cr.P.C. 9. Moreover, considering the need to follow social distancing norms inside prisons so as to avert the spread of the novel Corona Virus Pandemic, the Hon'ble Supreme Court in **Re: Contagion of COVID-19 Virus In Prisons case (Suo Motu Writ Petition(C) No.1 of 2020)** and a Full Bench of this Court in **W.P(C)No.9400 of 2020** issued various salutary directions for minimizing the number of B.A.No.9110 of 2019 6 inmates inside prisons. 10. 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. 11. Considering the dictum laid down in the above decision and considering the facts and circumstances of this case, this Bail Application is allowed with the following directions: (i) The petitioner shall appear before the Investigating Officer within ten days from today and shall undergo interrogation. (ii) After interrogation, if the B.A.No.9110 of 2019 7 Investigating Officer propose to arrest the petitioner, he shall be released on bail 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 officer concerned. (iii) The petitioner shall appear before the Investigating Officer on all Mondays and Fridays at 10.00 a.m. till final report is filed. The petitioner shall cooperate with the investigation and shall not threaten or attempt to influence the witnesses or tamper with the evidence. (iv) The petitioner shall produce his passport before the Investigating Officer. (iv) The petitioner shall strictly abide by the various guidelines issued by the B.A.No.9110 of 2019 8 State Government and Central Government with respect to keeping of social distancing in the wake of Covid 19 pandemic. (v) 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. Sd/- ## **P.V.KUNHIKRISHNAN, JUDGE** VPK