Kerala High Court
Suhail Basheer vs State Of Kerala on 2 April, 2025
Author: P.V.Kunhikrishnan
Bench: P.V.Kunhikrishnan
B.A.No.4523 of 2025
1
2025:KER:28028
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN
WEDNESDAY, THE 2ND DAY OF APRIL 2025 / 12TH CHAITHRA, 1947
BAIL APPL. NO. 4523 OF 2025
CRIME NO.1319/2023 OF MUVATTUPUZHA POLICE STATION, ERNAKULAM
AGAINST THE ORDER/JUDGMENT DATED IN BAIL APPL. NO.4046
OF 2024 OF HIGH COURT OF KERALA
PETITIONER(S)/ACCUSED:
SUHAIL BASHEER
AGED 26 YEARS
S/O. BASHEER K. K., KANJOOR PUTHENPURA HOUSE,
RANDARKARA, MUVATTUPUZHA VILLAGE, MUVATTUPUZHA
TALUK, ERNAKULAM, PIN - 686673
BY ADVS.
LEO LUKOSE
SACHIN RAMESH
RESPONDENT(S)/COMPLAINANT:
STATE OF KERALA
REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF
KERALA (THROUGH THE SHO, MUVATTUPUZHA POLICE
STATION), PIN - 682031
BY ADV. SR PP - SRI.HRITHWIK C S
THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON
02.04.2025, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
B.A.No.4523 of 2025
2
2025:KER:28028
P.V.KUNHIKRISHNAN, J
--------------------------------
B.A.No.4523 of 2025
-------------------------------
Dated this the 02nd day of April, 2025
ORDER
This Bail Application is filed under Section 483 of the
Bharatiya Nagarik Suraksha Sanhita.
2. Petitioner is an accused in Crime No.1319/2023
of Moovattupuzha Police Station, Ernakulam. The above case is
registered against the petitioner alleging offences punishable
under Sections 447 & 376(2)(n) of the Indian Penal Code, 1860
and Sections 4(1), 3(a), 6, 5l & 5(j)(ii) of the Protection of
Children from Sexual Offences Act, 2012 (for short 'POCSO Act').
3. The petitioner earlier filed a bail application
before this Court as B.A. No.4046/2024 and the same was
disposed of by this Court as per order dated 09.01.2025 in the
following manner:
"Petitioner is the accused in 1319/23 of
2025:KER:28028
Moovattupuzha Police Station. The above case is registered
against the petitioner alleging offences punishable under
Sections 447 & 376(2)(n) of the IPC and Sections 4(1),
3(a), 6, 5l & 5j (ii) of the POCSO Act.
2. Admittedly the petitioner is not in India
now. It is submitted by the counsel appearing for the
petitioner that the petitioner is now detained by the Abu
Dhabi Crime Investigation Department because of the Red
Corner Notice issued by the Interpol.
3. If that be the case, if the petitioner is
deported and produced before the jurisdictional court, the
petitioner can file appropriate application for bail and if such
an application is filed, the jurisdictional court will consider
the bail application in accordance with law.
With the above observation, this bail application is
disposed of. "
4. Now it is submitted that the petitioner has been
brought back to India from Abu Dhabi jail. But his arrest is not
recorded. The Public Prosecutor submitted that this bail
application is filed under Section 483 of the BNSS and the bail
application is not maintainable because the petitioner is not
arrested. I think there is force in the argument of the Public
Prosecutor. The counsel appearing for the petitioner submitted
2025:KER:28028
that the bail application may be converted as an application filed
under Section 482 of the BNSS.
5. Accordingly, this bail application is converted as
an application filed under Section 482 of the BNSS.
6. The prosecution case is that the petitioner
subjected the defacto complainant to aggravated sexual assault
on a day during the first week of November 2022 after having
maintained relationship for one year through Instagram. It is
alleged that the petitioner impregnated the victim. Hence it is
alleged that the accused committed the above said offences.
7. Heard the learned counsel appearing for the
petitioner and the learned Public Prosecutor.
8. The counsel for the petitioner submitted that
the petitioner was in Abu Dhabi from 11.12.2024 onwards. The
allegation that the petitioner impregnated the victim is factually
impossible. The counsel submitted that the victim also filed an
affidavit before this Court stating that she has no grievance
against the petitioner. Annexure - A5 is the affidavit filed by the
victim.
2025:KER:28028
9. The Public Prosecutor opposed the bail
application.
10. After hearing both sides, I think this bail
application can be allowed on stringent conditions. The
Investigating Officer can do the needful, including taking a blood
sample before releasing the petitioner on bail. The potency test
also can be conducted.
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 has
the opportunity of securing fair trial.
12. 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.
2025:KER:28028
"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."
13. 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.
14. Considering the dictum laid down in the above
decision and considering the facts and circumstances of this case,
2025:KER:28028
this Bail Application is allowed with the following directions:
1. After interrogation and other
procedural formalities, 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.
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
police officer.
2025:KER:28028
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. Needless to mention, it would
be well within the powers of the investigating
officer to investigate the 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].
6. The observations and findings
in this order is only for the purpose of deciding
this bail application. The principle laid down by
2025:KER:28028
this Court in Anzar Azeez v. State of Kerala
[2025 SCC OnLine KER 1260] is applicable in
this case also.
7. 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 any of the above conditions are
violated.
Sd/-
P.V.KUNHIKRISHNAN, JUDGE
DM
