Kerala High Court

Vafa Bin Ahammed K. P vs State Of Kerala on 10 January, 2025

Author: P.V.Kunhikrishnan

Bench: P.V.Kunhikrishnan

BAIL APPL. NO. 327 OF 2025                  1




                                                   2025:KER:1849
              IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                      PRESENT

           THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN

  FRIDAY, THE 10TH DAY OF JANUARY 2025 / 20TH POUSHA, 1946

                         BAIL APPL. NO. 327 OF 2025

   CRIME NO.541/2024 OF VELLAYIL POLICE STATION, Kozhikode

PETITIONER/S:
          VAFA BIN AHAMMED K. P
          AGED 28 YEARS
          S/O AHAMMED KUTTI SHEHAMAHAL HOUSE, ATEERI PUTHUR
          P.O, MALAPPURAM, PIN - 673104

              BY ADVS.
              SHARAN SHAHIER
              ABDURAHIMAN VAYALIL PEEDIKAYIL
              NEERAJ REHMAN
              SNEHA JOY
              AQEEL MUHAMMED K.H.
              RHEA SHERRY
              ANGELINA JOY
              SONA BENNY


RESPONDENT/S:
    1     STATE OF KERALA
          REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF
          KERALA, ERNAKULAM, PIN - 682031

      2       THE STATION HOUSE OFFICER
              VELLAYIL POLICE STATION KOZHIKODE DISTRICT, PIN -
              673011


       THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON
10.01.2025,        THE       COURT   ON   THE   SAME   DAY   DELIVERED   THE
FOLLOWING:
 BAIL APPL. NO. 327 OF 2025               2




                                                      2025:KER:1849
                  P.V.KUNHIKRISHNAN, J
                --------------------------------------
                     B.A. No. 327 of 2025
                --------------------------------------
           Dated this the 10th day of January, 2025



                                ORDER

This Bail Application is filed under Section 483 of

Bharatiya Nagarik Suraksha Sanhita.

2. Petitioner is the accused in Crime No.

541/2024 of Vellayil Police Station. The above case is

registered against the petitioner alleging offences

punishable under Sections 69 and 138 of the Bharatiya

Nyaya Sanhita, 2023 (for short 'BNS).

3. The prosecution case is that parents of the

victim and the petitioner had decided upon the marriage of

the petitioner and the victim. Thereafter, the petitioner

contacted the victim on Instagram. The facts being so, on

26.11.2024, at 1.30 am, the petitioner took the victim from

the premises of the house situated in Kozhikode Taluk,

Panicker Road in a car and committed rape on her in room

No. 218 of Vinayaka Hotel, Palayam. Thereafter, he

2025:KER:1849 withdrew from his promise to marry her. Hence, it is

alleged that the accused committed the offences.

4. Heard counsel for the petitioner and the

Public Prosecutor.

5. The counsel for the petitioner submitted

that the admitted prosecution case is that the victim

accompanied the petitioner at about 1.30 am on

26.11.2024 and stayed in a hotel at Kozhikode. Thereafter,

she was dropped at her house at about 5 o' clock. It is also

submitted by the petitioner that it is an admitted fact that

the marriage between the petitioner and the victim was

fixed, at that time. The Public Prosecutor opposed the bail

application. The Public Prosecutor submitted that serious

allegations are there against the petitioner.

6. This Court considered the contentions of

the petitioner and the Public Prosecutor. Admittedly, the

petitioner is in custody from 20.12.2024. As I mentioned

earlier, the admitted prosecution case is that the marriage

between the petitioner and the victim was fixed by the

2025:KER:1849 parents. It is the admitted case that there was regular

contact between the petitioner and the victim. On the

particular day at midnight, the victim left her house

without informing her parents and stayed in a hotel at

Kozhikode and came back on morning at about 5 am. Now,

the allegation is that the petitioner withdrew from the

marriage. Hence, it is alleged that the offence under Sec.

69 of the BNS is committed. Considering the facts and

circumstances of this case and also considering the fact

that the petitioner is in custody from 20.12.2024, 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

2025:KER:1849 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 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

2025:KER:1849 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. 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

2025:KER:1849 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.