High Court of KeralaSingle Judge2021-01-14Bail applications allowed; petitioner to be rel...

Shahul Hameed @ Shavuppa v. State of Kerala

Case / Petition Number:B.A. Nos. 9113 & 9130 of 2020

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: P. V. Kunhikrishnan
Judgment Date: 2021-01-14
Court Decision / Holding: The bail applications are allowed in both BA Nos. 9113/2020 and 9130/2020. The petitioner Shahul Hameed is released on bail on a bond of Rs. 50,000 with two solvent sureties for similar amounts. Conditions include: appearance before the Investigating Officer as required; cooperation with the investigation; not leaving India without permission; not committing any similar offence; compliance with social distancing guidelines; not entering the victims’ residential premises; monthly appearance on the 1st and 15th until the victim is examined; inability to meet conditions may render bail cancelable by the court. These directions are in line with Covid-19 safeguards and the principle that bail is the rule and jail the exception, while protecting victims and ensuring fair trial.
Final Disposition: Bail applications allowed; petitioner to be released on bail with specified conditions.

Parties to the Case

Appellants / Petitioners

Shahul Hameed @ Shavuppa

Respondents

State of Kerala represented by Public Prosecutor, High Court of Kerala, Ernakulam
The Station House Officer, Perinthalmanna Police Station, Malappuram District

Legal Representation & Advocates

Counsels for Petitioners

• Sri. K. Rakesh

Counsels for Respondents

• Public Prosecutor, High Court of Kerala (for State)

Case Synopsis & Summary

These two connected bail applications, B.A. Nos. 9113/2020 and 9130/2020, arise from Crime Nos. 889/2020 and 888/2020 registered with the Perinthalmanna Police Station in Malappuram, alleging offences under IPC sections 363 and 376 AB and various provisions of the POCSO Act (4(2), 3(a), 6(l), 5(l)(m)(n)). The petitioner Shahul Hameed @ Shavuppa has been in custody since 5 October 2020. The prosecution contends that a final report has not yet been filed, which would trigger statutory bail under Section 167(2) Cr.P.C after 90 days, even though the offences are grave and the victim is a minor. The petitioner’s counsel argued that the delay in filing final reports is not a bar to bail and relied on X v State of Kerala (2020(5)KLT 312) to contend that the victim need not be heard at default bail hearings. The Public Prosecutor conceded some proximity to the victim and suggested restrictive conditions, including not entering the victims’ residences. In view of the COVID-19 pandemic and to protect the prison population, the Court referred to Supreme Court and Kerala High Court directions directing social distancing and other safeguards; yet, after considering the facts, the Court concluded that bail is warranted with stringent conditions. The order emphasizes that bail is the rule and imprisonment is the exception and lays down detailed conditions to be observed by the petitioner, with monitoring by the Investigating Officer and revocation of bail on breach.

Provisions of Law Cited

Section 439 Cr.P.CSection 167 Cr.P.CSection 167(2) Cr.P.CSection 376 AB IPCPOCSO Act - Sections 4(2), 3(a), 6(l), 5(l)(m)(n)

Legal Doctrines & Maxims

Bail is the rule and jail is the exception (Chidambaram P v Directorate of Enforcement)
Victim has no right to be heard while granting default bail to accused under Section 167(2) Cr.P.C. (X v State of Kerala and another)

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioner contended entitlement to statutory bail under Section 167(2) Cr.P.C since no final report was filed within 90 days; he had been in custody since 5.10.2020; argued that delay in investigation cannot defeat default bail; relied on X v State of Kerala (2020(5)KLT 312) to assert that victim’s presence is not required at default bail hearings and requested bail with stringent conditions to ensure fair trial and victims’ safety; connected nature of the two cases supported consolidated consideration.

Contentions of Respondents

Prosecution submitted that the offences against a minor are grave and that while an informant’s presence is optional under 439(1A) Cr.P.C. for 376 AB cases, protective conditions are to be considered; argued that the final reports may not have been filed yet, but the court may grant bail with restrictions given proximity to the victim and ongoing investigation; suggested restrictions like not entering victim’s residence; emphasised federal and state directives on Covid-19 to minimize prison population.

Cited Precedents (4)

Case Name	Citation	Treatment	Explanation
X v State of Kerala and another	2020(5)KLT 312	Positive	The court uses the proposition from X to support that the victim has no right to be heard at default bail hearings under Section 167(2) Cr.P.C.
Re: Contagion of COVID-19 Virus In Prisons case	Suo Motu Writ Petition(C) No.1 of 2020	Positive	Cited for directions to minimize prison populations and protect inmates amid the pandemic.
W.P(C)No.9400 of 2020	2020	Positive	Full Bench directions on Covid-19 related prison management and bail considerations.
Chidambaram. P v Directorate of Enforcement	2019 (16) SCALE 870	Positive	Affirms bail as a rule and jail as an exception, guiding the overall approach to bail in criminal cases.

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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** ## **THURSDAY, THE 14TH DAY OF JANUARY 2021 / 24TH POUSHA, 1942** ## **Bail Appl..No.9130 OF 2020** **CRIME NO.888/2020 OF Perinthalmanna Police Station , Malappuram** ## **PETITIONER:** **SHAHUL HAMEED @ SHAVUPPA AGED 32 YEARS SON OF MOIDEEN, PARUTHIKUTHU HOUSE, PONNIYAMKURISSI, PERINTHALMANNA, MALAPPURAM DISTRICT 679322** **BY ADV. SRI.K.RAKESH** ## **RESPONDENTS:** - **1 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, ERNAKULAM PIN-682031** - **2 THE STATION HOUSE OFFICER PERINTHALMANNA POLICE STATION, MALAPPURAM DISTRICT 679322** ## **SMT.MAYA.M.N. PP** **THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 14.01.2021, ALONG WITH Bail Appl..9113/2020, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** B.A.Nos.9113 & 9130 of 2020 2 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN** **THURSDAY, THE 14TH DAY OF JANUARY 2021 / 24TH POUSHA, 1942** **Bail Appl..No.9113 OF 2020** **CRIME NO.889/2020 OF Perinthalmanna Police Station , Malappuram** ## **PETITIONER:** **SHAHUL HAMEED @ SHAVUPPA AGED 32 YEARS SON OF MOIDEEN, PARUTHIKUTHU HOUSE, PONNIYAMKURISSI, PERINTHALMANNA, MALAPPURAM DISTRICT 679322** **BY ADV. SRI.K.RAKESH** ## **RESPONDENTS:** **1 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA 682031** - **2 THE STATION HOUSE OFFICER PERINTHALMANNA POLICE STATION, MALAPPURAM DISTRICT. 679322** **SMT.MAYA.M.N. PP** **THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 14.01.2021, ALONG WITH Bail Appl..9130/2020, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** B.A.Nos.9113 & 9130 of 2020 3 ## **P.V.KUNHIKRISHNAN, J** ----------------------------------- B.A.Nos.9113 & 9130 of 2020 ----------------------------------Dated this the 14[th] day of January, 2021 ## **O R D E R** These Bail Applications are filed under Section 439 of Criminal Procedure Code was heard through Video Conference. 2. Petitioner in these two bail applications are one and the same. He is involved in Crime No.888 of 2020 and Crime No.889 of 2020 of Perinthalmanna Police Station. The above cases are registered against the petitioner alleging offences punishable under Sections 363, 376 AB IPC. The offences under Section 4(2), 3(a), 6(l) , 5(l),(m),(n) of the POCSO Act are also alleged. The petitioner was arrested in the above cases on the same day. Since these two cases are connected, I am disposing these two bail applications by a common order. 3. The prosecution case is that the petitioner sexually B.A.Nos.9113 & 9130 of 2020 4 abused two minor kids aged 6 years and 7 years. 4. Heard the counsel for the petitioner and the learned Public Prosecutor. 5. The counsel for the petitioner submitted that the petitioner is arrested in these two cases on 5.10.2020. He is in custody from that date onwards. The counsel submitted that the petitioner is entitled statutory bail under Section 167 Cr.P.C because no final report is filed in these two cases by the police as on today. According to the counsel, the petitioner is in custody for more than 90 days. 6. When this bail application came up for consideration yesterday (13.1.2021), this Court directed the Public Prosecutor to get instruction from the Investigating Officer, whether the final report is filed in these two crimes. The Public Prosecutor after getting instructions submitted that the final report is not filed even today. 7. If the final report is not filed within 90 days from the date of arrest, the petitioner is entitled statutory bail under B.A.Nos.9113 & 9130 of 2020 5 Section 167(2) Cr.P.C. It is disturbing to see that in a cases like this, the Investigating Officer is not completing the investigation within the statutory period. But the law mandate that the petitioner is entitled bail. It is true that as per Section 439(1A) Cr.P.C, while considering a bail application in cases in which the offences under Section 376 AB is alleged, the presence of the informant or any person authorised by him is obligatory at the time of hearing of bail application. But admittedly in this case, the petitioner is entitled statutory bail. This Court considered this point in **X v State of Kerala and another (2020(5)KLT 312)** in which it is stated that victim has no right to be heard while granting default bail to accused under Section 167(2) Cr.P.C. Therefore, the petitioner is entitled bail in the facts and circumstances of the case. 8. The Public Prosecutor submitted that the petitioner is a close relative of the victim and there may be a direction to the petitioner not to enter the residential premises of the victim. Such a condition can be imposed while granting bail. B.A.Nos.9113 & 9130 of 2020 6 9. Considering the entire facts and circumstances of the case and considering the detention period of the petitioner, I think this bail application can be allowed on stringent conditions. 10. 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 inmates inside prisons. 11. 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 B.A.Nos.9113 & 9130 of 2020 7 has the opportunity of securing fair trial. 12. 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 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 B.A.Nos.9113 & 9130 of 2020 8 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 petitioner shall strictly abide by the various guidelines issued by the State Government and Central Government with respect to keeping of social distancing in the wake of Covid 19 pandemic. 6. The petitioner shall not enter the residential premises where the victims in these cases are residing. 7. The petitioner shall appear before the Investigating Officer on all 1[st] and 15[th] of every month before the Investigating Officer till the B.A.Nos.9113 & 9130 of 2020 9 victim in this case is examined by the trial Court concerned. 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. **P.V.KUNHIKRISHNAN, JUDGE** cms