Kerala High Court
Noushad vs State Of Kerala on 21 March, 2025
Author: P.V.Kunhikrishnan
Bench: P.V.Kunhikrishnan
BAIL APPL. NO. 1777 OF 2025 1
2025:KER:24151
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN
FRIDAY, THE 21ST DAY OF MARCH 2025 / 30TH PHALGUNA, 1946
BAIL APPL. NO. 1777 OF 2025
CRIME NO.1492/2024 OF Aranmula Police Station,
Pathanamthitta
AGAINST THE ORDER/JUDGMENT DATED 05.02.2025 IN CRMP
NO.267 OF 2025 OF ADDITIONAL DISTRICT COURT (ADHOC),
PATHANAMTHITTA
PETITIONER/S:
NOUSHAD
AGED 58 YEARS
S/O IBRAHIMKUTTY, THOTTATHIL HOUSE, PONNANI,
MALAPPURAM, PIN - 679577
BY ADVS. SR.ADV.SRI.P.VIJAYBAHANU
S.RAJEEV
V.VINAY
M.S.ANEER
SARATH K.P.
ANILKUMAR C.R.
K.S.KIRAN KRISHNAN
RESPONDENT/S:
1 STATE OF KERALA
BAIL APPL. NO. 1777 OF 2025 2
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REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF
KERALA (CRIME NO. 1492/2024 OF ARANMULA POLICE
STATION, PATHANAMTHITTA DISTRICT), PIN - 682031
2 XXXXXXXXXX
XXXXXXXXXX XXXXXXXXXX
SRI.KA.NOUSHAD, SR.PP
SMT.PARVATHI A MENON FOR KeLSA(VRC)
THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON
17.03.2025, THE COURT ON 21.03.2025 DELIVERED THE FOLLOWING:
BAIL APPL. NO. 1777 OF 2025 3
2025:KER:24151
P.V.KUNHIKRISHNAN, J
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B.A. No.1777 of 2025
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Dated this the 21st day of March, 2025
ORDER
The petitioner is an accused in Crime No.1492/2024 of
Aranmula Police Station. Petitioner is a lawyer practising in
this Court. He is alleged to have committed rape on a minor
girl. The offences alleged are under Sections 376(2)(j),
376(2)(n), 376(3), 377, 506 of the Indian Penal Code,
Sections 75 & 77 of the Juvenile Justice (Care and Protection
of Children) Act, 2015 (for short 'JJ Act') and Sections 4(2),
3(a)(b), 6, 5(l)(p)(i), 7, 8, 9(l)(p), 10, 11(v), 12, 16, 17 of
the Protection of Children from Sexual Offences Act, 2012
(for short 'POCSO Act').
2. The victim in this case gave a statement before the
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Konni Police Station on 14.12.2024 at 2.30 pm in the
presence of one Jeeva Thomas. She stated that she is a Plus-
2 grade student and her date of birth is 02.08.2007. She
stated that her father and mother are not on good terms and
they are living separately. The petitioner is known to her. He
is a friend of her aunt. She stated that, in 2022, while she
was studying in the 9th standard, she went to the Park
Residency Hotel at Kozhenchery. At that time, the petitioner
was also there. Two rooms were taken and the petitioner
occupied one room. Her aunt and children along with her
occupied the other room. Her aunt told her and the children
to go to the room of the petitioner. They went to the room
of the petitioner. After some time, her aunt also came to that
room. It is stated that the petitioner took two bottles of
liquor along with two glasses. He asked the victim whether
she would take liquor. She said that she would not take it.
The petitioner compelled her to consume alcohol.
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Accordingly, she took one glass of drink. Then the petitioner
stated that the victim lacked willpower and that is why she
was not taking more drinks. Then the victim again consumed
another half glass. Thereafter she became drowsy. But she
can understand the conversations between the petitioner and
her aunt. Subsequently, her aunt left the room. The
petitioner locked the room and had forceful sexual
intercourse with the victim girl. When she experienced pain,
the petitioner said that she need not take it seriously. It is
also stated that her aunt knocked on the door two or three
times and the petitioner opened the door and closed it again.
The next morning, when she got up, the petitioner was
sleeping on her side in the bed. She went to the toilet and
there was bleeding to her. Even on the bed sheet, there was
blood. It is also stated by her that the petitioner bit her
nipple and there were marks on her breasts. Thereafter, she
went to the room of her aunt. She did not disclose the things
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to her aunt. On that day at noon, they vacated the room and
went to the house. After one week, the victim's aunt asked
her about the details. She also informed the victim that, in
the iPad of the petitioner, her photos and videos were there.
At that time, she disclosed everything to her aunt and her
'Ammachi'. It is stated by her that, thereafter also, the
petitioner sexually abused the victim several times. This
happened with the knowledge of her aunt. Several other
instances are also mentioned in the First Information
Statement. Therefore, it is alleged that the petitioner
committed the above-said offences.
3. Heard the learned Senior Counsel Adv. Sri. P.
Vijayabhanu assisted by Adv. S. Rajeev for the petitioner and
the learned Public Prosecutor.
4. The Senior counsel submitted that, it is a false
case foisted against the petitioner. The Senior counsel also
submitted that the victim in this case filed a complaint
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against another boy earlier and that was compromised. She
and her family are making money by filing false complaints.
This case is also filed to tarnish the image of the petitioner.
It is submitted that the petitioner is a lawyer practising in
this Court for several years. If this Court rejects the bail
application, that will affect his future and the reputation of
the petitioner. Even if the petitioner is finally acquitted after
trial by a competent court, the damage caused to the
petitioner at this stage cannot be compensated.
5. The Senior Counsel also made available a copy of
the judgment acquitting another accused, also in which the
victim is the same girl. In that case, the victim turned hostile
and the accused was acquitted. The Senior Counsel also took
me through the statements of the victim and submitted that
her statement is unbelievable. The Senior Counsel submitted
that this is a fit case in which this Court has to grant
anticipatory bail.
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6. The Public Prosecutor seriously opposed the bail
application. The Public Prosecutor made available the case
diary. The Public Prosecutor submitted that this is a clear
case of rape, in which a lawyer is the 1 st accused. He
submitted that the case which is mentioned by the Senior
Counsel, in which the accused was acquitted is also
connected to this case. According to the Public Prosecutor,
the petitioner was actively involved in that settlement also
and he collected money from the accused in that case for
settlement as if he was the mediator. The Public Prosecutor
submitted that the Investigation Officer took the statement
of the victim about the earlier case and she gave a detailed
narration of the facts. The Public Prosecutor made available
those statements also.
7. The Senior Counsel, Adv. P. Vijayabhanu also
produced a pen drive which contained the statement of the
victim, which this Court has not perused. The Public
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Prosecutor submitted that this statement is also given by the
victim at the instance of the petitioner herein and others.
There is a threat to the life of the victim and if this Court
grants bail to the petitioner, the petitioner will influence the
victim, is the submission. The Public Prosecutor also relied on
Section 482(4) of Bharatiya Nagarik Suraksha Sanhita, 2023
(for short 'BNSS') and submitted that an anticipatory bail
application cannot be entertained in this case, because, the
offence alleged against the petitioner includes the offence
under Section 376(3) of the Indian Penal Code (for short
'IPC').
8. Adv. Parvathi A. Menon, Project Coordinator,
Victim Right Centre (KeLSA) also appeared in this case. She
submitted a report after interacting with the victim. Smt.
Norhas Antony, Psychologist, Family Counselling Center,
HCLSE, Kerala, also submitted a report after counselling the
victim.
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9. This Court considered the contention of the
petitioner and the Public Prosecutor. This Court also perused
the report submitted by the Project Coordinator, VRC, KeLSA
and also the counselling report submitted by Smt. Norhas
Antony, Psychologist.
10. A preliminary point is raised by the Public
Prosecutor that this bail application is not maintainable in the
light of Section 482(4) of BNSS. Section 482(4) of BNSS is
extracted hereunder:-
"Section 482. Direction for grant of bail to person
apprehending arrest.
(1) xxx
(2) xxx
(3) xxx
(4) Nothing in this section shall apply to
any case involving the arrest of any
person on accusation of having
committed an offence under Section
65 and sub-section (2) of Section 70 of
the Bharatiya Nyaya Sanhita, 2023."
11. This Court considered the impact of Section 438(4)
Cr.PC, which corresponds to Section 482(4) of BNSS in XXX
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v. State of Kerala [2023 (6) KHC 158]. It will be better to
extract the relevant portion of the above judgment:-
23. In the wake of the above findings, the
question posed at the beginning of this order is
answered negatively. I hold that the exclusion
of pre-arrest bail provision by S.438(4) of CrPC
in respect of the offences mentioned therein is
not to be read as absolute, where it was
discernible to the court that the allegations are
patently false or motivated and no prima facie
materials exist warranting the arrest of the
accused. The exclusion clause applies only
when a prima facie case of commission of
offences is made out. This may have to be
determined by the Court concerned with the
facts and circumstances of each case.
12. Again this Court considered the same point in K.R
Jayachandran v. State of Kerala [2025 KHC OnLine
1527]. It will be better to extract the relevant portion of the
above judgment:-
9. The learned Public Prosecutor, as well as the
learned counsel for the grandmother of the victim
child pointed out the bar contained in Section
438(4) Cr.P.C. against entertaining pre-arrest
bail application in respect of offences under
Section 376 AB IPC. Per contra, it is submitted by
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the learned counsel for the petitioner that there is
no absolute bar in invoking the powers under
Section 438 Cr.P.C in a case where it would prima
facie appear that the accusations against the
applicant are ex-facie unsustainable. The decision
rendered by a Single Judge of this Court in xxx v.
State of Kerala [2023 (5) KLT 514] has been
relied on by the learned counsel for the petitioner
in support of the above argument. The dictum
laid down by this Court in the above regard has
no applicability in the present case since there
are prima facie materials pointing to the
involvement of the petitioner in the crime. It is
not possible to accept the argument of the
learned counsel for the petitioner that the victim
child has been tutored to tender false statements
implicating the petitioner in a crime of this
nature. Since the materials gathered by the
prosecution in the instant case, prima facie point
to the involvement of the petitioner in the crime,
and also since the custodial interrogation of the
petitioner is indispensable for an effective and
fruitful investigation, the prayer in this petition
for pre-arrest bail cannot be entertained.
13. A perusal of the above judgment would show that,
if the prosecution case is patently false or motivated and no
prima facie material exists warranting the arrest of the
accused, the Bar under Section 438(4) of Cr.P.C/ 482(4) of
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BNSS can be relaxed in appropriate cases. Therefore, the
question to be decided is whether the prosecution case is
patently false or motivated and no prima facie material exists
warranting the arrest of the accused.
14. Keeping in mind the above principle, this Court
carefully perused the pleadings in the bail applications,
contention of the petitioner and also the prosecution case
along with the case diary produced by the Public Prosecutor.
15. This Court also perused the report submitted by
Adv. Parvathi A. Menon, the Project Coordinator, VRC,
KeLSA. Adv. Parvathi submitted that she reproduced the
statement of the victim in her report and did not add or
subtract anything from her statement. She patiently heard
the victim, recorded the same and prepared the report. In
the report, she stated that the victim has no grievance
against Alvin, who is the accused in the earlier case, which
ended up in his acquittal. This judgement is produced by the
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counsel for the petitioner to show that, the victim falsely
implicated others in rape cases for money. However, she was
forced to give a statement against Alvin to the police is her
submission. The victim affirmed that Alvin had never abused
her. The statement originally given to the police and others
by the victim is at the instance of the petitioner and others,
is the submission. In the report, it is also stated that it was
extremely challenging for an adolescent girl from a
dysfunctional family, with no proper guidance, to resist the
frequent advances of the accused, especially when she was
completely dependent on an aunt, who herself was leading a
hyper-sexual lifestyle. It is also stated that the survivor has
not received any money from either the accused or her
paternal aunt.
16. Adv. Parvathi in her report stated that the victim
was calm, composed and narrated the incidents in a coherent
manner without any compulsion or prompting. In the report,
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it is stated that the statements presented in it are solely the
narrations of the survivor, her father and her friend, all of
whom have played a crucial role in these proceedings. Adv.
Parvathi clearly stated that she has not made any
conclusions or assumptions, but only recounted their
versions and statements. Adv. Parvathi also stated in her
report that these statements may kindly be treated solely as
her objection/version in the bail application with the utmost
privacy and confidentiality they deserve. The report
submitted by the Project Co-ordinator, Victim Rights Centre
(VRC), KeLSA and the counselling report of Mrs Norhas
Antony will be part of this file. The Registry will seal the
same and kept in the file so that if any subsequent bail
application is filed by the petitioner, these reports can be
used. After going through the entire Case Diary, the report
submitted by the Project Co-ordinator and the counselling
report, I am of the considered opinion that a prima facie case
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is made out against the petitioner and it can be stated that it
has progressed beyond the stage of prima facie. I do not
want to discuss the merit of the case further, but suffice it to
say that this is a bail application, which cannot be
entertained because of the bar under section 482(4) BNSS.
But I am also forced to say that, if the facts narrated by the
prosecution and the victim are correct, it is unfortunate
because the petitioner is from a noble profession. After going
through the statement of the victim (if it is correct), a human
being cannot complete reading it without tears in their eyes
because the allegation is that the petitioner abused a minor
girl, without her consent. The allegation is that the petitioner,
who is a lawyer gave alcohol to the victim and thereafter,
committed penetrative sexual intercourse with a minor girl. If
the facts are correct, it is a shame to the profession. Such a
person is not entitled to any discretionary relief from this
Court. I am of the considered opinion that the petitioner is
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not entitled to anticipatory bail. The report of Advocate
Parvathi concludes with these words:
"Survivor is now focused on completing her 12 th grade and
joining the coaching centre for Medicine. With pride in her
eyes, she expressed her ambition to become a Forensic
Surgeon"
The entire society is with her, fingers crossed, to
achieve her dream.
With the above observation, this bail application is
dismissed.
sd/-
P.V.KUNHIKRISHNAN
JUDGE
DM/AMR/SKS
