Kerala High Court
Muhammed Nihal vs State Of Kerala on 6 January, 2025
Author: P.V.Kunhikrishnan
Bench: P.V.Kunhikrishnan
BAIL APPL. NO. 10877 OF 2024 1
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN
MONDAY, THE 6TH DAY OF JANUARY 2025 / 16TH POUSHA, 1946
BAIL APPL. NO. 10877 OF 2024
CRIME NO.984/2024 OF Wandoor Police Station, Malappuram
PETITIONER/S:
MUHAMMED NIHAL
AGED 17 YEARS
SON OF ABDUL NAJEEB, THELAKKAD HOUSE ERIYAD THIRUVALI
POST PUNNAPPALA, MALAPPURAM DISTRICT.BEING MINOR
REPRESENTED BY HIS FATHER ABDUL NAJEEB T.K, AGED 58
YEARS, SON OF BEERENKUTTY, THELAKKAD HOUSE ERIYAD
THIRUVALI POST PUNNAPPALA, MALAPPURAM DISTRICT, PIN -
680666
BY ADVS.
C.C.ANOOP
AFLAH C.P.
RESPONDENT/S:
1 STATE OF KERALA
REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF
KERALA, PIN - 682031
2 XXXXXXXXXX
XXXXXXXXXX XXXXXXXXXX
OTHER PRESENT:
ADV.SRI.NOUSHAD K.A-SR PP
THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON
06.01.2025, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
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P.V.KUNHIKRISHNAN, J
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B.A. No. 10877 of 2024
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Dated this the 6th day of January, 2025
ORDER
This Bail Application is filed under Section 483 of Bharatiya Nagarik Suraksha Sanhita.
2. The petitioner is an accused in crime No. 984/2024 of Wandoor Police Station. The above case is registered against the petitioner alleging offence punishable under Secs. 332(b), 64(1), 64(2)(m) of Bharatiya Nyaya Sanhita, 2023 (for short 'BNS') and Secs.4(1) r/w 3(a), 6(1) r/w 5(j)(ii) (1), 12 r/w 11(iv) of Protection of Children from Sexual Offences (POCSO) Act, 2012.
3. The prosecution case is that, a day in the month of April, 2024, the child in conflict with law (CCL herein) with an intention to sexually assault the survivor, acquainted with BAIL APPL. NO. 10877 OF 2024 3 2025:KER:300 her, by sending messages through telegram by pretending love and trespassed into the house of the survivor at Vaniyambalam Poochapoyil and committed aggravated penetrative sexual assault upon her. It is also alleged that, thereafter, he committed repeated rape upon the survivor on different dates and on 02.08.2024 at 12 am and made her pregnant. Hence, it is alleged that the petitioner committed the offences.
4. Heard the learned counsel for the petitioner and the Public Prosecutor.
5. The counsel for the petitioner submitted that the petitioner is admittedly a CCL. He is now in the Government Observation Home for boys. The bail application filed by the petitioner is rejected by the Juvenile Justice Board, Malappuram stating that the offence is heinous. The counsel for the petitioner submitted that, in the light of proviso to Sec. 12 (1) of the Juvenile Justice (Care and Protection of Children) Act, 2015 (for short 'JJ Act'), the petitioner is entitled bail. The learned counsel submitted that, observation of the Juvenile Justice Board that since it is a heinous crime, the petitioner is not BAIL APPL. NO. 10877 OF 2024 4 2025:KER:300 entitled bail, is not correct.
6. The Public Prosecutor opposed the bail application. The Public Prosecutor submitted that the petitioner, even though a minor, committed rape and impregnated the victim. This Court considered the contentions of the petitioner and the Public Prosecutor.
7. Sec. 12 (1) of the JJ Act says that when any person, who is apparently a child and is alleged to have committed a bailable or non-bailable offence, is apprehended or detained by the police or appears or brought before a Board, such person shall, notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974) or in any other law for the time being in force, be released on bail with or without surety or placed under the supervision of a Probation Officer or under the care of a fit person. The proviso to Sec. 12 (1) says that such person shall not be so released if there appears reasonable grounds for believing that the release is likely to bring that person into association with any known criminal or expose the said person to moral, physical or BAIL APPL. NO. 10877 OF 2024 5 2025:KER:300 psychological danger or the persons release would defeat the ends of justice, and the Board shall record the reasons for denying the bail and circumstances that led to such a decision. The reason for rejecting the bail application is that the offence alleged is heinous. That will not come within the purview of proviso to Sec. 12 (1) of the JJ Act. Moreover, the Apex Court in the order dated 14.08.2024 in SLP (Crl.) No. 9566/2024 observed that from the phraseology used in sub-section 1 of Sec. 12, a juvenile in conflict with law has to be necessarily released on bail with or without surety or placed under the supervision of a probation officer or under the care of any fit person, unless proviso is applicable. This Court in Afsal Ibrahim v. State of Kerala [2013 (4) KHC 30] considered the question of granting bail to a juvenile. In the light of the above dictum, I am of the considered opinion that the petitioner can be released on bail, after imposing conditions. One of the sureties shall be the parent of the petitioner. Therefore, this bail application can be allowed, after imposing stringent conditions.
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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 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 BAIL APPL. NO. 10877 OF 2024 7 2025:KER:300 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 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 BAIL APPL. NO. 10877 OF 2024 8 2025:KER:300 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 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. One of the sureties shall be the father or mother of the petitioner.
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 BAIL APPL. NO. 10877 OF 2024 9 2025:KER:300 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 suspected, of the commission of which he is suspected.
5. 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 SKS