Kerala High Court
Mathew Thomas vs State Of Kerala on 26 March, 2025
Author: P.V.Kunhikrishnan
Bench: P.V.Kunhikrishnan
2025:KER:26002
BAIL APPL. NO. 3886 OF 2025
1
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN
WEDNESDAY, THE 26TH DAY OF MARCH 2025 / 5TH CHAITHRA, 1947
BAIL APPL. NO. 3886 OF 2025
CRIME NO.981/2024 OF Nadakkavu Police Station, Kozhikode
PETITIONER/ACCUSED:
MATHEW THOMAS
AGED 54 YEARS
ROY BHAVAN, MALOOR COLLEGE P.O PALLAZHY
VADAKKEKKARA PATHANAPURAM, KOLLAM, PIN - 689695
BY ADVS. JOSEPH KIRAN D. THEKKEKARA
S.HARIHARAN
DAVIS PIUS
ARUN ANTONY (K/1053/2011)
SHINTO SABASTIAN
JEO GEORGE
RESHMA R.NAIR
RESPONDENT/STATE:
1 STATE OF KERALA
REPRESENTED BY THE PUBLIC PROSECUTOR
HIGH COURT OF KERALA, PIN - 682031
2 SHO
NADAKKAVU POLICE STATION, KOZHIKKODE,
PIN - 673011
PP-G SUDHEER
THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON
26.03.2025, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
2025:KER:26002
BAIL APPL. NO. 3886 OF 2025
2
P.V.KUNHIKRISHNAN, J.
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B.A.No.3886 of 2025
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Dated this the 26th day of March, 2025
ORDER
This Bail Application is filed under Section 482 of Bharatiya Nagarik Suraksha Sanhita.
2. Petitioner is the accused in Crime No.981/2024 of Nadakkavu Police Station. The above case is registered against the petitioner alleging offences punishable under Sections 75(1)(iii), 75(1)(iv) and 78(1)(ii) of the Bharatiya Nyaya Sanhita (for short, BNS).
3. The prosecution case is that the petitioner maintained a Facebook account in the name of one Nikky Thomas. The prosecution alleges that the petitioner sent sexually flavoured messages and the photo of penis to the defacto complainant and hence committed the offences.
4. Heard counsel for the petitioner and the Public Prosecutor.
5. The counsel for the petitioner submitted that 2025:KER:26002 BAIL APPL. NO. 3886 OF 2025 3 the allegation against the petitioner is false. The counsel submitted that one Pramod who was the co-worker of the petitioner used to send messages. The facebook account named Nikky Thomas was also handled by this Pramod. It is also submitted that the petitioner is having two sim cards and the petitioner was constrained to handover one sim card to Pramod for a short span of time. It is further submitted that the petitioner is not aware to operate a smartphone. The counsel submitted that the petitioner is ready to abide any conditions if this Court grant him bail. The Public Prosecutor opposed the bail application.
6. It is true that the allegation against the petitioner is serious. But the petitioner has a case that he is not operating the facebook account. It is a matter to be investigated by the Investigating Officer. I do not want to make any observation about the same. The maximum punishment that can be imposed for the offences alleged 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 2025:KER:26002 BAIL APPL. NO. 3886 OF 2025 4 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.
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 2025:KER:26002 BAIL APPL. NO. 3886 OF 2025 5 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 and documentary evidence.
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 2025:KER:26002 BAIL APPL. NO. 3886 OF 2025 6 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 the existence of the power to arrest and the justification for exercise of it. (Joginder 2025:KER:26002 BAIL APPL. NO. 3886 OF 2025 7 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 conditions.
Therefore, this Bail Application is allowed with the 2025:KER:26002 BAIL APPL. NO. 3886 OF 2025 8 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 person acquainted with the facts of the 2025:KER:26002 BAIL APPL. NO. 3886 OF 2025 9 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. The observations and findings in this order is only for the purpose of deciding this bail 2025:KER:26002 BAIL APPL. NO. 3886 OF 2025 10 application. The principle laid down by this Court in Anzar Azeez v. State of Kerala [2025 SCC OnLine KER 1260] is applicable in this case also.
8. 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