Muhammed Mirshad v. State of Kerala

B.A.No.5016 of 2025 1 2025:KER:30793 **==> picture [58 x 57] intentionally omitted <==** **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN** **WEDNESDAY, THE 9[TH] DAY OF APRIL 2025 / 19TH CHAITHRA, 1947 BAIL APPL. NO. 5016 OF 2025** **CRIME NO.964/2024 OF ALUVA EAST POLICE STATION, Ernakulam PETITIONER(S)/ACCUSED:** **MUHAMMED MIRSHAD AGED 27 YEARS S/O. MAJEED, SANKARATH VALAPPIL HOUSE, NEAR MAJID-U-NOOR, KIDANGODE, KIDANGODE VILLAGE, THRISSUR, PIN - 680584** **BY ADVS. M.A.AHAMMAD SAHEER E.A.HARIS MUHAMMED YASIL AAGI JOHNY** ## **RESPONDENT(S)/STATE & COMPLAINANT:** **STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, PIN - 682031** **BY ADV. PP-G SUDHEER** **THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 09.04.2025, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** B.A.No.5016 of 2025 2 2025:KER:30793 **==> picture [58 x 57] intentionally omitted <==** ## **P.V.KUNHIKRISHNAN, J** -------------------------------- ## B.A.No.5016 of 2025 ------------------------------- Dated this the 09th day of April, 2025 ## **O R D E R** This Bail Application is filed under Section 483 of the Bharatiya Nagarik Suraksha Sanhita. 2. Petitioner is an accused in Crime No.964 of 2024 of Aluva East Police Station. The above case is registered against the petitioner alleging offences punishable under Sections 366, 384 & 376(1) of the Indian Penal Code and Section 66E of the Information Technology Act. 3. The prosecution case is that, the petitioner herein, with intention to commit rape on de-facto complainant, on 08.05.2024 at 7.45 am, took her on a bike and raped her at the MDV Residence Lodge, Angamaly. It is alleged that the accused recorded the nude videos and photos of the de-facto complainant and threatened that he would publish the same B.A.No.5016 of 2025 3 **==> picture [58 x 57] intentionally omitted <==** 2025:KER:30793 and extorted her 4 sovereigns of gold ornaments. Hence it is alleged that the accused committed the above said offences. 4. Heard the learned counsel appearing for the petitioner and the learned Public Prosecutor. 5. Counsel for the petitioner submitted that, originally the FIR was registered alleging offences punishable under Section 406, 420 and 506 IPC. At that time, the offence of rape was not there. Subsequently, the allegation of rape was raised, when the case was transferred to Perumbavoor Police Station. Now the case is again transferred to Aluva East Police Station. The counsel submitted that the petitioner is ready to abide any conditions if this Court grants him bail. It is also submitted by the counsel that the marriage of the petitioner is scheduled on 21.04.2025. The Public Prosecutor opposed the bail application. 6. This Court considered the contentions of the petitioner and the Public Prosecutor. This Court also perused the First Information Report produced as Annexure-A1. Admittedly, the defacto complainant is a married women. The B.A.No.5016 of 2025 4 **==> picture [58 x 57] intentionally omitted <==** 2025:KER:30793 admitted case is that she was taken in a motor bike and the rape was committed in a lodge. The petitioner is in custody from 23.03.2025. Considering the facts and circumstances of the case, I think the petitioner can be released on bail 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. Moreover, in **Jalaluddin Khan v. Union of** **India [2024 KHC 6431]** , the Hon'ble Supreme Court observed that: “21. Before we part with the Judgment, we must mention here that the Special Court and the High Court did not consider the material in the charge sheet objectively. Perhaps the focus was more on the activities of PFI, and therefore, the B.A.No.5016 of 2025 5 2025:KER:30793 **==> picture [58 x 57] intentionally omitted <==** appellant's case could not be properly appreciated. When a case is made out for a grant of bail, the Courts should not have any hesitation in granting bail. The allegations of the prosecution may be very serious. But, the duty of the Courts is to consider the case for grant of bail in accordance with the law. "Bail is the rule and jail is an exception" is a settled law. Even in a case like the present case where there are stringent conditions for the grant of bail in the relevant statutes, the same rule holds good with only modification that the bail can be granted if the conditions in the statute are satisfied. The rule also means that once a case is made out for the grant of bail, the Court cannot decline to grant bail. If the Courts start denying bail in deserving cases, it will be a violation of the rights guaranteed under Art.21 of our Constitution.” (underline supplied) ## 9. In **Manish Sisodia v. Directorate of Enforcement [2024 KHC 6426]** , also the Hon'ble Supreme Court observed that: “53. The Court further observed that, over a period of time, the trial courts and the High Courts have forgotten a very well - settled principle of law that bail is not to be withheld as a punishment. B.A.No.5016 of 2025 6 2025:KER:30793 **==> picture [58 x 57] intentionally omitted <==** From our experience, we can say that it appears that the trial courts and the High Courts attempt to play safe in matters of grant of bail. The principle that bail is a rule and refusal is an exception is, at times, followed in breach. On account of non - grant of bail even in straight forward open and shut cases, this Court is flooded with huge number of bail petitions thereby adding to the huge pendency. It is high time that the trial courts and the High Courts should recognize the principle that "bail is rule and jail is exception".” 10. 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: 1. Petitioner shall be released on bail on executing a bond for Rs.50,000/- (Rupees Fifty thousand only) with two solvent sureties each for the like sum to the satisfaction of the jurisdictional Court. 2. The petitioner shall appear before the Investigating Officer for interrogation as and B.A.No.5016 of 2025 7 **==> picture [58 x 57] intentionally omitted <==** 2025:KER:30793 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. 3. Petitioner shall not leave India without permission of the jurisdictional Court. 4. 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. 5. The observations and findings in this order is only for the purpose of deciding this bail 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. B.A.No.5016 of 2025 8 **==> picture [58 x 57] intentionally omitted <==** 2025:KER:30793 6. 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 there is any violation of the above conditions. Sd/- **P.V.KUNHIKRISHNAN, JUDGE** DM