Several bail applications filed by accused charged with offences under IPC and POCSO Act against a minor girl were heard collectively. The court refused bail to all petitioners.
Bail applications dismissed; accused remain in custody; request made to Director General of Prosecution to review charges.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE GOPINATH P.
WEDNESDAY, THE 22ND DAY OF DECEMBER 2021 / 1ST POUSHA, 1943
BAIL APPL. NO. 9626 OF 2021
CRIME NO.509/202O OF ELOOR POLICE STATION, ERNAKULAM
AGAINST THE ORDER IN SC 683/2020 OF ADDITIONAL DISTRICT COURT & SESSIONS COURT (VIOLENCE AGAINST WOMEN & CHILDREN)
PETITIONER/SOLE ACCUSED:
ASHU,AGED 23 YEARS S/O. ZAHID MIYAN, SAIJINI NANKAR, RAMPUR CITY, RAMPUR, UTTAR PRADESH 244 901.
BY ADV MATHAI VARKEY MUTHIRENTHY
RESPONDENTS/COMPLAINANT:
1 STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM 682 031.
2 XXX XXX
SRI. NOUSHAD K.A.(P.P.)
THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 22.12.2021, ALONG WITH Bail Appl..9629/2021, 9628/2021 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
B.A.No.9626/2021 & con.cases
2
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE GOPINATH P.
WEDNESDAY, THE 22ND DAY OF DECEMBER 2021 / 1ST POUSHA, 1943
BAIL APPL. NO. 9629 OF 2021
CRIME NO.509/2020 OF ELOOR POLICE STATION, ERNAKULAM DISTRICT AGAINST THE ORDER IN SC 683/2020 OF ADDITIONAL DISTRICT COURT
& SESSIONS COURT (VIOLENCE AGAINST WOMEN & CHILDREN)
PETITIONERS/ACCUSED 1 & 2:
1 FARHAD KHAN,AGED 30 YEARS S/O JAHID,SAIJINI NAGAR, RAMPUR CITY, RAMPUR, UTTAR PRADESH-244901.
2 FAHEEM,AGED 23 YEARS S/O NABI AHAMMED, SAIJINI NAGAR, RAMPUR CITY, RAMPUR DISTRICT, UTTAR PRADESH-244901.
BY ADV MATHAI VARKEY MUTHIRENTHY
RESPONDENTS/COMPLAINANT:
2 XXX XXX
SRI. NOUSHAD K.A.(P.P.)
THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 22.12.2021, ALONG WITH Bail Appl..9626/2021 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
B.A.No.9626/2021 & con.cases
3
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE GOPINATH P.
WEDNESDAY, THE 22ND DAY OF DECEMBER 2021 / 1ST POUSHA, 1943
BAIL APPL. NO. 9628 OF 2021
CRIME NO.509/2020 OF ELOOR POLICE STATION, ERNAKULAM
AGAINST THE ORDER IN SC 683/2020 OF ADDITIONAL DISTRICT COURT
& SESSIONS COURT (VIOLENCE AGAINST WOMEN & CHILDREN) PETITIONER/ACCUSED:
HANEEF., AGED 29 YEARS S/O. NABI AHAMMED, SAIJINI NANGAR, RAMPUR CITY, RAMPUR DISTRICT, UTTAR PRADESH 244 901.
BY ADV MATHAI VARKEY MUTHIRENTHY
RESPONDENTS/COMPLAINANT:
1 STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM 682 031.
2 XXXX XXXX
SRI. NOUSHAD K.A.(P.P.)
THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 22.12.2021, ALONG WITH Bail Appl..9626/2021 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
B.A.No.9626/2021 & con.cases
4
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE GOPINATH P.
WEDNESDAY, THE 22ND DAY OF DECEMBER 2021 / 1ST POUSHA, 1943
BAIL APPL. NO. 9636 OF 2021
CRIME NO.509/2020 OF ELOOR POLICE STATION, ERNAKULAM
AGAINST THE ORDER IN SC 683/2020 OF ADDITIONAL DISTRICT COURT & SESSIONS COURT (VIOLENCE AGAINST WOMEN & CHILDREN)
PETITIONER/ACCUSED No.2:
SHAHID AGED 25 YEARS S/O SHERIEF AHAMMED, HOUSE NO.14, HANUPURA I PS, ASIM NAGAR, RAMPUR, UTTAR PRADESH-244901.
BY ADV MATHAI VARKEY MUTHIRENTHY
RESPONDENTS/COMPLAINANT:
1 STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA.
2 XXX XXX SRI. NOUSHAD K.A.(P.P.)
THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 22.12.2021, ALONG WITH Bail Appl..9626/2021 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
B.A.No.9626/2021 & con.cases
5
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE GOPINATH P.
WEDNESDAY, THE 22ND DAY OF DECEMBER 2021 / 1ST POUSHA, 1943
BAIL APPL. NO. 9634 OF 2021
CRIME NO.509/2020 ELOOR POLICE STATION, ERNAKULAM DISTRICT AGAINST THE ORDER IN SC 683/2020 OF ADDITIONAL DISTRICT COURT
& SESSIONS COURT (VIOLENCE AGAINST WOMEN & CHILDREN) PETITIONER/ACCUSED:
FARHAD KHAN @ BHARATH, AGED 30 YEARS S/O. JAHID, SAIJINI, NANGAR, RAMPUR CITY, RAMPUR, UTTAR PRADESH 244 901.
BY ADV MATHAI VARKEY MUTHIRENTHY
RESPONDENTS/COMPLAINANT:
1 STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM 682 031.
2 XXXX XXX
SRI. NOUSHAD K.A.(P.P.)
THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 22.12.2021, ALONG WITH Bail Appl..9626/2021 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
B.A.No.9626/2021 & con.cases
6
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE GOPINATH P.
WEDNESDAY, THE 22ND DAY OF DECEMBER 2021 / 1ST POUSHA, 1943
BAIL APPL. NO. 9631 OF 2021
CRIME NO.509/2020 OF ELOOR POLICE STATION, ERNAKULAM
AGAINST THE ORDER IN SC 683/2020 OF ADDITIONAL DISTRICT COURT & SESSIONS COURT (VIOLENCE AGAINST WOMEN & CHILDREN) PETITIONERS/ACCUSED 1 & 2:
1 FARHAD KHAN @ BHARATH AGED 30 YEARS S/O JAHID, SAIJINI NAGAR, RAMPUR CITY, RAMPUR, UTTAR PRADESH-244901.
2 FAHEEM AGED 23 YEARS S/O NABI AHAMMED, SAIJINI NAGAR, RAMPUR CITY, RAMPUR DISTRICT, UTTAR PRADESH-244901.
BY ADV MATHAI VARKEY MUTHIRENTHY
RESPONDENTS/COMPLAINANT:
1 STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA-682031.
2 XXX XXX SRI. NOUSHAD K.A.(P.P.)
THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 22.12.2021, ALONG WITH Bail Appl..9626/2021 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
B.A.No.9626/2021 & con.cases
7
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE GOPINATH P.
WEDNESDAY, THE 22ND DAY OF DECEMBER 2021 / 1ST POUSHA, 1943
BAIL APPL. NO. 9635 OF 2021
CRIME NO.509/2020 OF ELOOR POLICE STATION, ERNAKULAM
AGAINST THE ORDERT IN SC 683/2020 OF ADDITIONAL DISTRICT COURT & SESSIONS COURT (VIOLENCE AGAINST WOMEN & CHILDREN) PETITIONER/ACCUSED 1 & 2:
1 ASHU., AGED 23 YEARS S/O. ZAHID MIYAN, SAIJINI NANKAR, RAMPUR CITY RAMPUR, UTTAR PRADESH 244 901.
2 FAEEM., AGED 23 YEARS S/O. NABI AHAMMED, SAIJINI NANGAR, RAMPUR CITY, RAMPUR DISTRICT, UTTAR PRADESH 244 901.
BY ADV MATHAI VARKEY MUTHIRENTHY
RESPONDENTS/COMPLAINANT:
1 STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM 682 031.
2 XXXX XXXX SRI. NOUSHAD K.A.(P.P.)
THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 22.12.2021, ALONG WITH Bail Appl..9626/2021 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
B.A.No.9626/2021 & con.cases
8
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE GOPINATH P.
WEDNESDAY, THE 22ND DAY OF DECEMBER 2021 / 1ST POUSHA, 1943
BAIL APPL. NO. 9665 OF 2021
PETITIONER/SOLE ACCUSED:
FAEEM, AGED 23 YEARS S/O. NABI AHAMMED, SAJINI NANGAR, RAMPUR CITY, RAMPUR DISTRICT, UTTAR PRADESH-244 901.
BY ADV MATHAI VARKEY MUTHIRENTHY
RESPONDENTS/COMPLAINANT:
1 STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR,HIGH COURT OF KERALA, 682 031.
2 XXX XXX
SRI. NOUSHAD K.A.(P.P.)
THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 22.12.2021, ALONG WITH Bail Appl..9626/2021 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
B.A.No.9626/2021 & con.cases
9
ORDER
[Bail Appl. Nos.9626/2021, 9629/2021, 9628/2021, 9636/2021, 9634/2021, 9631/2021, 9635/2021, 9665/2021]
The petitioners in these cases are the accused in Crime No.509/2020 of Eloor Police Station, Ernakulam District. The petitioner (Ashu) in B.A.No.9626/2021 is alleged to have committed offences under Sections 376 (3), 376(2)(n) of the Indian Penal Code and Section 4(2) r/w. Section 3, Section 6 r/w. Section (l), (j)(ii) of the Protection of Children from Sexual Offences Act, 2012. The petitioner (Haneef) in B.A.No.9628/2021 is alleged to have committed offences under Sections 376 (2) (n), 376(3) of the Indian Penal Code and Section 4(2) r/w. Section 3, 6 r/w. 5(l) of the Protection of Children from Sexual Offences Act, 2012. The petitioners (Farhad Khan @ Bharath & Faeem) in B.A.No.9629/2021 are alleged to have committed offences under Sections 366, 376 DA of the Indian Penal Code and Section 4(2) r/w. Section 3, Section 5(g), (j)(ii) r/w. Section 6 of the Protection of Children from Sexual Offences Act, 2012. The petitioners (Farhad Khan, & Faeem) in B.A.No.9631/2021 are alleged to have committed offences under Sections 366, 366A & 376DA of the Indian Penal Code and Section 4(2) r/w. Section 3, 5(g), (j) (ii) r/w. 6 of the Protection of Children from Sexual Offences Act, 2012. The petitioner (Farhad Khan @ Bharath) in B.A.No.9634/2021 is alleged to have committed offences under Sections 376
B.A.No.9626/2021 & con.cases
10
(2)(n) & 376(3) of the Indian Penal Code and Section 4(2) r/w. Section 3, 6 r/w. 5(l) of the Protection of Children from Sexual Offences Act, 2012. The petitioners (Ashu & Faeem) in B.A.No.9635/2021 are alleged to have committed offences under Sections 366 & 376 DA of the Indian Penal Code & Section 4(2) r/w. Section 3, 6 r/w. Section 5(g), (j)(ii) of the Protection of Children from Sexual Offences Act, 2012. The petitioner (Shahid) in B.A.No.9636/2021 is alleged to have committed offences under Sections 366, 366A & 376DA of the Indian Penal Code and Section 4(2) r/w. Section 3, 5 (g), (j) (ii) r/w. 6 of the Protection of Children from Sexual Offences Act, 2012. The petitioner (Faeem) in B.A.No.9665/2021 is alleged to have committed offences under Sections 376(3) & 376(2) (n) of the Indian Penal Code & Section 4(2) r/w. Section 3, Section 6 r/w. (l) & (j)(ii) of the Protection of Children from Sexual Offences Act, 2012.
B.A.No.9626/2021 & con.cases
11
would submit that the petitioners were arrested on different dates and they have all completed substantial periods in custody. It is submitted that, since final reports have been filed against all the accused in these cases, further detention of the petitioners is not necessary for the purpose of any investigation. It is submitted that, going by the judgment of this Court in Union of India v. K.A. Najeeb; 2021 KHC 6045, even in respect of special Statutes where there is a bar on the ground of bail, the constitutional Courts have the jurisdiction to grant bail. In particular, reference is made to paragraph 16 of that judgment, which reads as follows:-
“16.This Court has clarified in numerous judgments that the liberty guaranteed by Part III of the Constitution would cover within its protective ambit not only due procedure and fairness but also access to justice and a speedy trial. In Supreme Court Legal Aid Committee Representing undertrial Prisoners v. Union of India (1994 KHC 1078: (1994) 6 SCC 731: 1995 SCC (Cri) 39). P.15., it was held that undertrials cannot indefinitely be detained pending trial. Ideally, no person ought to suffer adverse consequences of his acts unless the same is established before a neutral arbiter. However, owing to the practicalities of real life where to secure an effective trial and to ameliorate the risk to society in case a potential criminal is left at large pending trial, Courts are tasked with deciding whether an individual ought to be released pending trial or not. Once it is obvious that a timely trial would not be possible and the accused has suffered incarceration for a significant period of time, Courts would ordinarily be obligated to enlarge them on bail.
It is submitted that sufficient conditions may be put in place to ensure that the accused are available to face the trial and to ensure that they do not influence or intimidate any witness in the case. It is also submitted that even though the petitioners are all permanent residents of the State of Uttar
12
B.A.No.9626/2021 & con.cases
Pradesh, they are all willing to provide local sureties for the purpose of enlargement from bail. It is also submitted that the 2nd accused was already granted bail by this Court.
B.A.No.9626/2021 & con.cases
13
accused are alleged to have committed serious offences as in this case.
B.A.No.9626/2021 & con.cases
14
against all the accused are essentially similar in nature, the offences which have been alleged against some do not incorporate all the offences which have been alleged against some others. This added to the facts pointed out by the learned counsel appearing as support person for the victim girl suggest to me that I should request the learned Director General of Prosecution to bestow his personal attention to the charges already filed in these cases to ensure that there is no defect of any nature in the charges filed against the accused in these cases. I, therefore, request to Sri. T.A. Shaji, Senior Advocate and Director General of Prosecution to bestow his personal attention to the charges filed against the accused in these cases to ensure that there is no defect of any nature.
Registry shall communicate a copy of this order to the learned Director General of Prosecution.
Sd/-
GOPINATH P. JUDGE
acd
3 issues framed by the court
Whether bail should be granted to accused charged with offences under the Indian Penal Code and Protection of Children from Sexual Offences Act, 2012.
Whether the rights under Part III of the Constitution justify enlarging accused on bail despite statutory bars and heinous nature of offences.
Whether the delay in trial and filing of final reports warrant granting bail to the accused.
Colour shows how this judgement treated each authority
Union of India v. K.A. NajeebReferred¶142
Union of India v. K.A. Najeeb; 2021 KHC 6045
5 provisions across 3 enactments
ASHU
FARHAD KHAN
FAHEEM
HANEEF
SHAHID
STATE OF KERALA
GOPINATH P.
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
GOPINATH P.
Parties & counsel
