Kerala High Court
A.Muhamad Ismaail vs State Of Kerala on 29 January, 2025
Author: P.V.Kunhikrishnan
Bench: P.V.Kunhikrishnan
B.A.No.707 of 2025
1
2025:KER:6925
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN
WEDNESDAY, THE 29TH DAY OF JANUARY 2025 / 9TH MAGHA, 1946
BAIL APPL. NO. 707 OF 2025
CRIME NO.1687/2024 OF TOWN NORTH POLICE STATION, PALAKKAD
AGAINST THE ORDER/JUDGMENT DATED 10.01.2025 IN CRMP
NO.7065 OF 2024 OF DISTRICT COURT & SESSIONS COURT,
PALAKKAD
PETITIONER(S)/ACCUSED:
A.MUHAMAD ISMAAIL,
AGED 45 YEARS
S/O. ABBAS, MAITHRI NAGAR, 2ND LINE KALLEPPULLY
POST, PALAKKAD, PIN - 678005
BY ADV L.RAJESH NARAYAN
RESPONDENT(S)/COMPLAINANT:
STATE OF KERALA,
REPRESENTED BY INSPECTOR OF POLICE, TOWN NORTH
POLICE STATION PALAKKAD DISTRICT, THROUGH PUBLIC
PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM,
PIN - 682031
BY ADV.
SRI. NOUSHAD K.A., SENIOR PP
THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON
29.01.2025, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
B.A.No.707 of 2025
2
2025:KER:6925
P.V.KUNHIKRISHNAN, J
--------------------------------
B.A.No.707 of 2025
-------------------------------
Dated this the 29th day of January, 2025
ORDER
This Bail Application is filed under Section 483 of the
Bharatiya Nagarik Suraksha Sanhita.
2. Petitioner is the accused in Crime No.1687 of 2024
of Palghat Town North Police Station registered alleging offences
punishable under Section 126(2) of the Bharatiya Nyaya Sanhita,
2023 (for short 'BNS') and Sections 8, 7, 10, 9l, 9m, 12 & 11(iv)
of the Protection of Children From Sexual Offences (Amendment)
Act, 2019.
3. The prosecution case is that, during the 2 nd half of
2024, on various occasions, while the petitioner was working as
security personnel in SA Home Apartment at Kalleppully, held
the victim boy and rubbed on his private parts with an intention
to exploit him sexually and thereby committed the offences.
4. Heard the learned counsel appearing for the
2025:KER:6925
petitioner and the learned Public Prosecutor.
5. Counsel for the petitioner submitted that the
petitioner is in custody from 20.12.2024. The counsel submitted
that the maximum punishment that can be imposed for the
offences alleged is below seven years. The counsel also
submitted that the petitioner is ready to abide any conditions if
this Court grant him bail.
6. The Public Prosecutor opposed the bail
application.
7. This Court considered the contentions of the
petitioner and the Public Public Prosecutor. It is true that the
allegation against the petitioner is very serious. But the fact
remains that the petitioner is in custody from 20.12.2024.
Moreover, the maximum punishment that can be imposed to the
petitioner for the offences alleged are below seven years. The
Apex Court in Arnesh Kumar v. State of Bihar and Another
[2014 (8) SCC 273] considered a similar point. It will be better
to extract the relevant portion of the above judgment:
"7. xxxxxxxxx
7.1. From a plain reading of the
2025:KER:6925
aforesaid provision, it is evident that all person
accused of an offence punishable with
imprisonment for a term which may be less than
seven years or which may extend to seven years
with or without fine, cannot be arrested by the
police officer only on his satisfaction that such
person had committed the offence punishable as
aforesaid. A police officer before arrest, in such
cases has to be further satisfied that such arrest is
necessary to prevent such person from committing
any further offence; or for proper investigation of
the case, or to prevent the accused from causing
the evidence of the offence to disappear; or
tampering with such evidence in any manner; or
to prevent such person from making any
inducement, threat or promise to a witness so as
to dissuade him from disclosing such facts to the
court or the police officer, or unless such accused
person is arrested, his conclusions, which one may
reach based on facts.
7.2. The law mandates the police officer
to state the facts and record the reasons in writing
which led him to come to a conclusion covered by
any of the provisions aforesaid, while making such
arrest. The law further requires the police officers
to record the reasons in writing for not making the
arrest.
7.3. In pith and core, the police officer
before arrest must put a question to himself, why
2025:KER:6925
arrest? Is it really required? What purpose it will
serve? What object it will achieve? It is only after
these questions are addressed and one or the
other conditions as enumerated above is satisfied,
the power of arrest needs to be exercised. In fine,
before arrest first the police officers should have
reason to believe on the basis of information and
material that the accused has committed the
offence. Apart from this, the police officer has to
be satisfied further that the arrest is necessary for
one or the more purposes, envisaged by sub-
clauses (a) to (e) of clause (1) of Section 41
CrPC."
Keeping in mind, the above dictum 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. But there can be a direction to the petitioner to
appear before the Investigating Officer on all Mondays at 10
A.M., till final report is filed.
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
2025:KER:6925
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. 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
2025:KER:6925
bail in deserving cases, it will be a violation of the
rights guaranteed under Art.21 of our
Constitution." (underline supplied)
10. 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"."
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
2025:KER:6925
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
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
2025:KER:6925
suspected, of the commission of which he is
suspected.
5. Petitioner shall appear before the Investigating
Officer on all Mondays at 10 A.M., till final report
is filed.
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
DM
