SHAJI @ SHAJAHAN v. The State of Kerala

``` 2025:KER:29750 ``` **==> picture [58 x 57] intentionally omitted <==** ## **`Bail Appl. Nos.4866 & 4870 OF 2025`** ``` 1 ``` ``` IN THE HIGH COURT OF KERALA AT ERNAKULAM ``` ## **`PRESENT`** ``` THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN ``` ``` MONDAY, THE 7[TH] DAY OF APRIL 2025 / 17TH CHAITHRA, 1947 ``` ``` BAIL APPL. NO. 4866 OF 2025 ``` ``` CRIME NO.1271/2024 OF Neyyattinkara Police Station ``` ``` AGAINST THE ORDER/JUDGMENT DATED IN SC NO.2664 OF 2024 OF ADDITIONAL DISTRICT COURT & SESSIONS COURT (ATROCITIES & SEXUAL VIOLENCE AGAINST WOMEN & CHILDREN),THIRUVANANTHAPURAM ``` ## **`PETITIONER/ACCUSED:`** ``` SHAJI @ SHAJAHAN AGED 21 YEARS ``` ``` S/O ABDULRAHIMAN, PACHIKODU, PUTHUVAL PUTHENVEEDU, VAZHIMUKKU, BALARAMAPURAM P O, THIRUVANANTHAPURAM, PIN - 695501 ``` ``` BY ADVS. R.T.PRADEEP M.BINDUDAS NIRANJAN T. PRADEEP ``` ## **`RESPONDENT/STATE:`** ``` THE STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, PIN - 682031 PP-G SUDHEER ``` ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 07.04.2025, ALONG WITH Bail Appl..4870/2025, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` 2025:KER:29750 ``` ``` 2 ``` **==> picture [58 x 57] intentionally omitted <==** ## **`Bail Appl. Nos.4866 & 4870 OF 2025`** ``` IN THE HIGH COURT OF KERALA AT ERNAKULAM ``` ## **`PRESENT`** ``` THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN ``` ``` MONDAY, THE 7[TH] DAY OF APRIL 2025 / 17TH CHAITHRA, 1947 ``` ``` BAIL APPL. NO. 4870 OF 2025 ``` ``` CRIME NO.1273/2024 OF Neyyattinkara Police Station AGAINST THE ORDER/JUDGMENT DATED IN SC NO.2615 OF 2024 OF ADDITIONAL DISTRICT COURT & SESSIONS COURT (ATROCITIES & SEXUAL VIOLENCE AGAINST WOMEN & CHILDREN),THIRUVANANTHAPURAM ``` ``` PETITIONER/ACCUSED: ``` ``` SHAJI @ SHAJAHAN AGED 21 YEARS S/O ABDUL RAHIMAN, PACHIKODU, PUTHUVAL PUTHENVEEDU, VAZHIMUKKU, BALARAMAPURAM P O, THIRUVANANTHAPURAM, PIN - 695501 ``` ``` BY ADVS. R.T.PRADEEP M.BINDUDAS NIRANJAN T. PRADEEP ``` ## **`RESPONDENT/STATE:`** ``` THE STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, PIN - 682031 ``` ``` SR PP-NOUSHAD K A ``` ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 07.04.2025, ALONG WITH Bail Appl..4866/2025, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` **==> picture [58 x 57] intentionally omitted <==** ``` 2025:KER:29750 ``` ## **`Bail Appl. Nos.4866 & 4870 OF 2025`** ``` 3 ``` **P.V.KUNHIKRISHNAN, J. -------------------------------B.A. Nos.4866 & 4870 of 2025 ---------------------------------------------Dated this the 07[th] day of April, 2025** ## **`ORDER`** These Bail Applications under Section 483 of Bharatiya Nagarik Suraksha Sanhita are filed by one and the same person and therefore, I am disposing these bail applications by a common order. 2. BA No.4866/2025 is filed for bail in Crime No.1271/2024 of Neyyattinkara Police Station and BA No.4870/2025 is filed for bail in Crime No.1273/2024 of Neyyattinkara Police Station. The offences alleged in Crime No.1271/2024 are punishable under Sections 4 r/w 3, 6 r/w 5(l) (m) and 8 r/w 7 of the Protection of Children From Sexual Offences Act, 2012 and the offences alleged in Crime No.1273/2024 are punishable under Sections 8 r/w 7 and 10 r/w 9(m) of the Protection of Children From Sexual Offences Act, 2012. ``` 2025:KER:29750 ``` **==> picture [58 x 57] intentionally omitted <==** ## **`Bail Appl. Nos.4866 & 4870 OF 2025`** ``` 4 ``` 3. The prosecution case in Crime No.1271/2024 is that while a minor boy studying in 3[rd] standard on returning from Mosque, the petitioner with sexual intent caressed his stomach and inserted his penis into his anus on multiple occasions and thereby committed the alleged offences. The prosecution case in Crime No.1273/2024 is that the petitioner with sexual intent caught hold of the shoulder of a minor girl aged 9 years and caressed her breast on 13.9.2024. 4. Heard the learned counsel for the petitioner and the learned Public Prosecutor. 5. The counsel for the petitioner submitted that the petitioner is in custody from 12.10.2024 and it is a false case foisted against the petitioner. The petitioner is a youngster aged 21 years and he is having 51% intellectual disability. The certificate is produced as Annexure-III. The Public Prosecutor seriously opposed the bail application. The Public Prosecutor takes me through the prosecution allegation in these cases and submitted that the petitioner committed henious crime. 6. This Court considered the contentions of the ``` 2025:KER:29750 ``` **==> picture [58 x 57] intentionally omitted <==** ## **`Bail Appl. Nos.4866 & 4870 OF 2025`** ``` 5 ``` petitioner and the Public Prosecutor. It is true that the allegation against the petitioner is serious. But the fact remains that the petitioner is in custody from 12.10.2024. Admittedly the final report in these cases are filed. Indefinite incarceration of the petitioner is not necessary. Considering the facts and circumstances, I think bail can be granted after imposing stringent conditions. But I make it clear that one of the sureties shall be the mother of the petitioner. If mother has no property, in addition, she shall file a self bond and she should produce two other sureties. 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 ``` 2025:KER:29750 ``` ``` Bail Appl. Nos.4866 & 4870 OF 2025 ``` ``` 6 ``` **==> picture [58 x 57] intentionally omitted <==** 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 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 modifcation that the bail can be granted if the conditions in the statute are satisfed. 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** ``` 2025:KER:29750 ``` **==> picture [58 x 57] intentionally omitted <==** ## **`Bail Appl. Nos.4866 & 4870 OF 2025`** ``` 7 ``` ## **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. 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, these Bail Applications are allowed with the following directions: 1. Petitioner shall be released on bail on executing a bond for Rs.50,000/- (Rupees ``` 2025:KER:29750 ``` **==> picture [58 x 57] intentionally omitted <==** ## **`Bail Appl. Nos.4866 & 4870 OF 2025`** ``` 8 ``` Fifty Thousand only) with two solvent sureties each for the like sum to the satisfaction of the jurisdictional Court. One of the sureties shall be the mother of the petitioner. If mother has no property, in addition, she shall file a self bond and she should produce two other sureties. 2. The petitioner shall appear before the Investigating Officer for interrogation as and when required. The petitioner shall cooperate 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/her 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 ``` 2025:KER:29750 ``` **==> picture [58 x 57] intentionally omitted <==** ## **`Bail Appl. Nos.4866 & 4870 OF 2025`** ## **`9`** 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. 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** jv