It is definitely of utmost significance to note that in a major development, the Single Judge Bench of the Kerala High Court comprising of Hon’ble Mr Justice PV Kunhikrishnan in a most learned, laudable, landmark, logical and latest judgment titled Balachandra Menon vs State of Kerala & Ors in Bail Appl. No. 9058 of 2024 in Crime No. 1009/2024 of Cantonment Police Station, Thiruvananthapuram and cited in Neutral Citation No.: 2024:KER:93563 that came up for admission on 11/12/2024 and was pronounced on the very same day while granting bail in a bail application that had been filed by a well-known Malayalam director, actor and script writer Balachandra Menon in a 2007 sexual assault case that had been filed in September 2024 in the wake of the Justice Hema Committee Report’s release that claimed to address the sexual harassment incidents in the Malayalam film industry held that it is an admitted fact that the victim filed the complaint 17 years after the alleged incident and that the accused is a well-known cine artist. It must be noted that the Kerala High Court was considering the actor’s bail application that had been filed under Section 482 of Bharatiya Nagarik Suraksha Sanhita. It merits mentioning that the Kerala High Court explicitly stated that it is true that the investigation is going on but everyone must remember that pride and dignity are not only of women but of men as well.
By the way, the Kerala High Court also earnestly held that it is a fit case for the grant of bail in the interest of justice. Very rightly so! We must also note that the actor was given interim protection from arrest by the court on October 30 and it was extended from time to time till the time when his plea for anticipatory bail was allowed.
At the very outset, this brief, brilliant, bold and balanced judgment authored by the Single Judge Bench of Kerala High Court at Ernakulam comprising of Hon’ble Mr Justice PV Kunhikrishnan sets the ball in motion by first and foremost putting forth in para 1 that:
This Bail Application is filed under Section 482 of Bharatiya Nagarik Suraksha Sanhita.
As we see, the Bench then discloses in para 2 of this remarkable judgment succinctly stating that:
Petitioner is the accused in Crime No.1009/2024 of Cantonment Police Station, Thiruvannathapuram. The above case is registered against the petitioner alleging offences punishable under Sections 354, 509 and 506 of the Indian Penal Code. Subsequently, Section 164 of the Criminal Procedure Code statement was also recorded from the victim in which allegation of rape is also alleged.
To put things in perspective, the Bench envisages in para 3 of this pragmatic judgment that:
The case is registered based on a complaint filed by the victim before the 2nd respondent Cantonment Police Station with the allegation that the petitioner, during the time of shooting of his movie titled, Dhe Ingottu Nokkiye in the year 2007 had committed sexual assault on the victim by hugging her and pressing her breast, and by inviting her and her unnamed friend to the Hotel Room of the petitioner and it is alleged that the petitioner outraged the modesty of the 3rd respondent by committing such sexual acts and putting body fluids on the body of the victim and her unnamed friend. On the basis of this allegation, Crime No.1009/2024 of Cantonment Police Station, Thiruvananthapuram as evident by Annexure-A2 was registered.
Do note, the Bench notes in para 4 of this robust judgment that:
Heard Senior Counsel Shri. M. Ramesh Chander assisted by Shri. Govind G. Nair for the petitioner and the Public Prosecutor.
On the one hand, the Bench then mentions briefly in para 5 of this progressive judgment that:
Senior Counsel who appeared for the petitioner submitted that the present complaint is filed by the victim after about 17 years of the alleged incident. The Senior Counsel submitted that the petitioner is a Film Actor, Director and Script Writer and is known in South India as a Film Director and Actor. He obtained several awards including National Awards. This case is filed only with an intention to malign the image of the petitioner. It is also submitted that the petitioner also filed a complaint against the victim and another when there was a threatening phone call, which resulted in Annexure-A1 FIR.
Further, the Bench then while adding more to it states in para 6 of this pertinent judgment that:
The Senior Counsel submitted that, the statement of the victim in her Section 164 Cr.P.C statement is that, there was sexual assault from the petitioner in a room situated in the sixth floor of B.T.H Hotel, Ernakulam. The Senior Counsel submitted that, anybody visited at B.T.H Hotel will know that there is no six floors in that Hotel.
On the other hand, the Bench then points out in para 7 of this commendable judgment that:
Public Prosecutor opposed the bail application. The Public Prosecutor submitted that serious allegations are there against the petitioner and the Investigating Officer is investigating the matter. At this stage, the petitioner may not be released on bail.
Most significantly and so also most remarkably, what encapsulates the real cornerstone of this notable judgment is then laid bare in para 8 postulating that:
I think there is force in the arguments of the petitioner. It is an admitted fact that the alleged incident happened in the year 2007. It is an admitted fact that the victim filed the complaint after 17 years of the alleged incident. It is an admitted fact that the petitioner is a known cine artist. He is known as a Film Actor, Director and Script Writer.
He directed about 40 films and he obtained two National Awards. He also honoured by the Nation by giving Padma Shri also. Based on the statement of a lady, that also after 17 years, the present case is registered. It is true that the investigation is going on. But, everybody must remember that the pride and dignity is not only to woman, but to men also. I leave it there. This is a fit case in which this Court has to grant bail to the petitioner in the interest of justice.
While citing relevant rulings, the Bench observed in para 9 of this concise judgment that:
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.
Furthermore, the Bench while citing yet another recent and relevant case law mentions in para 10 that:
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 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.
Finally, the Bench then concludes by holding in para 11 propounding that:
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. 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:
- The petitioner shall appear before the Investigating Officer within two weeks from today and shall undergo interrogation.
- 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.
- 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.
In a nutshell, this leading case delivered by the Single Judge Bench comprising of Hon’ble Mr Justice PV Kunhikrishnan of Kerala High Court has made it indubitably clear that it is not just women along but men too have ‘pride and dignity’. We see that the Court very rightly granted anticipatory bail to actor-cum-director Balachandra Menon. The Court took into account that the complaint was filed after 17 years of the alleged incident. It was also taken into account that he is a known cine artist and directed about 40 films and obtained two National Awards. To top it all, he was also honoured with Padma Shri. For sake of clarity, it must be added that the Court is yet to rule on the merits of this high profile leading case.
Sanjeev Sirohi, Advocate,
s/o Col (Retd) BPS Sirohi, A 82, Defence Enclave,
Sardhana Road, Kankerkhera, Meerut - 250001, Uttar Pradesh
