Muhammed v. State of Kerala

B.A.No.4375 of 2025 1 2025:KER:29258 **==> picture [57 x 58] intentionally omitted <==** # **IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT** **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN** **FRIDAY, THE 4[TH] DAY OF APRIL 2025 / 14TH CHAITHRA, 1947 BAIL APPL. NO. 4375 OF 2025** **CRIME NO.5/2025 OF PALAKKAD VANITHA POLICE STATION,** ## **PALAKKAD** ## **PETITIONER(S)/ACCUSED:** **MUHAMMED AGED 63 YEARS S/O HAMSA , THOTTINGALTHODI VEETIL, KIZHAKKUMPADAM PO, PERINTHALMANNA TALUK, MALAPPURAM DISTRICT, PIN - 679326** **BY ADVS. T.K.SANDEEP SWETHA R. SREELAKSHMI SHIBU** ## **RESPONDENT(S)/COMPLAINANT & STATE:** **STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, PIN - 682031** **BY ADV. PP – SRI. G SUDHEER** **THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 04.04.2025, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** B.A.No.4375 of 2025 2 2025:KER:29258 **==> picture [57 x 58] intentionally omitted <==** ## **P.V.KUNHIKRISHNAN, J** -------------------------------- ## B.A.No.4375 of 2025 ------------------------------Dated this the 04[th] day of April, 2025 ## **O R D E R** This Bail Application is filed under Section 482 of the Bharatiya Nagarik Suraksha Sanhita. 2. Petitioner is an accused in Crime No.5/2025 of Vanitha Police Station, Palakkad. It is submitted that the case is now transferred to Melattur Police Station and the case is re-registered as Crime No.216/2025. The above case is registered against the petitioner alleging offences punishable under Section 75(1)(i) of the Bharatiya Nyaya Sanhita, 2023 (for short 'BNS') and Sections 8 r/w 7, 9(l), 9(m), 9(n) r/w 10 of the Protection of Children from Sexual Offences Act, 2012 (for short 'POCSO Act'). 3. The prosecution case is as follows: The accused is the paternal grandfather of the victim girl. The father and mother of the victim girl are separated B.A.No.4375 of 2025 3 **==> picture [57 x 58] intentionally omitted <==** 2025:KER:29258 and they are living separately. The victim girl resides with her mother. The victim girl was given custody to the father as per the order of the court. During that period, it is alleged that the petitioner, who is the paternal grandfather, committed sexual assault on her. According to the victim, there was bad touch from the paternal grandfather. 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 the petitioner is ready to abide any conditions if this Court grants him bail. 6. The Public Prosecutor opposed the bail application. 7. This Court considered the contentions of the petitioner and the Public Prosecutor. Admittedly, there is family dispute pending between the father and mother of the victim girl. Custody application regarding the child is also pending before the Family court. It is an admitted fact that B.A.No.4375 of 2025 4 **==> picture [57 x 58] intentionally omitted <==** 2025:KER:29258 the alleged incident happened when the interim custody of the victim was given to the father. I do not want to make any observation about the merit of the case. Considering the facts and circumstances of the case, I think this bail application can be allowed on stringent conditions. 8. 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. 9. 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 B.A.No.4375 of 2025 5 2025:KER:29258 **==> picture [57 x 58] intentionally omitted <==** 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.” 10. In **Manish Sisodia v. Central Bureau of** **Investigation [2023 KHC 6961]** , the Apex Court observed B.A.No.4375 of 2025 6 **==> picture [57 x 58] intentionally omitted <==** 2025:KER:29258 that even if the allegation is one of grave economic offence, it is not a rule that bail should be denied in every case. 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: 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 B.A.No.4375 of 2025 7 2025:KER:29258 **==> picture [57 x 58] intentionally omitted <==** 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. 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 B.A.No.4375 of 2025 8 2025:KER:29258 **==> picture [57 x 58] intentionally omitted <==** 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 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 B.A.No.4375 of 2025 9 **==> picture [57 x 58] intentionally omitted <==** 2025:KER:29258 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, JUDGE** DM