1. Petitioner, the primary accused in a sexual assault case under the BNS and POCSO Act, challenges the cancellation of his bail granted after he appeared upon summons. (Para 1 , 2 , 3 )
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2026 Supreme(Online)(Ker) 68061
IN THE HIGH COURT OF KERALA AT ERNAKULAM
Jobin Sebastian, J
Abdul Rafeek @ Rafeek – Appellant
Versus
State of Kerala – Respondent
CRL.MC NO. 8940 OF 2026
Important Points
Custodial interrogation is qualitatively distinct from questioning on bail and is necessary for effective investigation in grave crimes. Furthermore, compelling an accused to produce incriminating electronic devices under Section 94 BNSS violates the privilege against self-incrimination guaranteed by Article 20(3) of the Constitution.
Subject
Criminal Law - Bail
Act Referred
Bharatiya Nyaya Sanhita, 2023: S.332(a), S.49, S.64(2)(m), S.65(2), S.3(5)
Protection of Children from Sexual Offences Act, 2012: S.6(1), S.5(l), S.12, S.11(iii), S.16, S.17
Bharatiya Nagarik Suraksha Sanhita, 2023: S.94(1)
Constitution of India: Art.20(3)
Code of Criminal Procedure, 1973: S.91, S.93, S.94
Protection of Children from Sexual Offences Act, 2012: S.6(1), S.5(l), S.12, S.11(iii), S.16, S.17
Bharatiya Nagarik Suraksha Sanhita, 2023: S.94(1)
Constitution of India: Art.20(3)
Code of Criminal Procedure, 1973: S.91, S.93, S.94
Headnote
(A) Bharatiya Nyaya Sanhita, 2023 - Sections 332(a), 49, 64(2)(m) and 65(2) read with Section 3(5); Protection of Children from Sexual Offences Act, 2012 - Section 6(1) read with Sections 5(l), 5(p), 5(m), Section 12 read with Sections 11(iii) and 11(vi), and Section 16 read with Section 17; Bharatiya Nagarik Suraksha Sanhita, 2023 - Section 94(1); Constitution of India - Article 20(3) - Cancellation of bail - Custodial interrogation - Recovery of mobile phones.
(B) Cancellation of bail - Distinction between grant and cancellation of bail; while cogent and overwhelming circumstances are generally required for cancellation, an order granting bail that ignores material evidence in heinous crimes can be set aside as perverse. (Paras 8-9).
(C) Custodial Interrogation - Qualitatively different from ordinary questioning; necessary to elicit information and discover materials that might otherwise remain concealed, particularly when the accused remained unavailable during the primary investigation. (Paras 12-13).
(D) Testimonial Compulsion - Physical or medical evidence, such as a potency test, does not violate Article 20(3) of the Constitution. However, compelling an accused to produce incriminating documents or devices, specifically mobile phones, through a summons under Section 94 of BNSS (formerly Section 91 of Cr.P.C.), amounts to testimonial compulsion and is prohibited by the constitutional protection against self-incrimination. (Paras 15-23).
Facts of the case:
The petitioner, the first accused, was alleged to have committed repeated aggravated penetrative sexual assault on a 9-year-old girl, facilitated by the victim's mother (second accused). Having remained abroad during the investigation, the petitioner was granted bail upon appearing in response to court summons. The prosecution subsequently sought cancellation of bail to facilitate further investigation, including potency examination, recovery of mobile phones, and identification of locations where the offences occurred.
Findings of Court:
The court found that custodial interrogation was highly warranted given the gravity of the offence and the need for effective investigation. It held that the investigating agency cannot be compelled to rely on production summons for incriminating devices as it would violate Article 20(3) of the Constitution.
Issues: Whether the cancellation of bail was justified for custodial interrogation and whether Section 94 of BNSS could be used to compel the production of the accused's mobile phone.
Ratio Decidendi: Custodial interrogation is essential in grave cases to unearth relevant facts and materials. Since compelling the production of an incriminating mobile phone via summons is contrary to the privilege against self-incrimination under Article 20(3) of the Constitution, the need for custodial interrogation to ensure recovery and identification of evidence is legitimate.
Result: Crl. M.C. dismissed.
(B) Cancellation of bail - Distinction between grant and cancellation of bail; while cogent and overwhelming circumstances are generally required for cancellation, an order granting bail that ignores material evidence in heinous crimes can be set aside as perverse. (Paras 8-9).
(C) Custodial Interrogation - Qualitatively different from ordinary questioning; necessary to elicit information and discover materials that might otherwise remain concealed, particularly when the accused remained unavailable during the primary investigation. (Paras 12-13).
(D) Testimonial Compulsion - Physical or medical evidence, such as a potency test, does not violate Article 20(3) of the Constitution. However, compelling an accused to produce incriminating documents or devices, specifically mobile phones, through a summons under Section 94 of BNSS (formerly Section 91 of Cr.P.C.), amounts to testimonial compulsion and is prohibited by the constitutional protection against self-incrimination. (Paras 15-23).
Facts of the case:
The petitioner, the first accused, was alleged to have committed repeated aggravated penetrative sexual assault on a 9-year-old girl, facilitated by the victim's mother (second accused). Having remained abroad during the investigation, the petitioner was granted bail upon appearing in response to court summons. The prosecution subsequently sought cancellation of bail to facilitate further investigation, including potency examination, recovery of mobile phones, and identification of locations where the offences occurred.
Findings of Court:
The court found that custodial interrogation was highly warranted given the gravity of the offence and the need for effective investigation. It held that the investigating agency cannot be compelled to rely on production summons for incriminating devices as it would violate Article 20(3) of the Constitution.
Issues: Whether the cancellation of bail was justified for custodial interrogation and whether Section 94 of BNSS could be used to compel the production of the accused's mobile phone.
Ratio Decidendi: Custodial interrogation is essential in grave cases to unearth relevant facts and materials. Since compelling the production of an incriminating mobile phone via summons is contrary to the privilege against self-incrimination under Article 20(3) of the Constitution, the need for custodial interrogation to ensure recovery and identification of evidence is legitimate.
Result: Crl. M.C. dismissed.
Legal Category Hierarchy
- crime and sentencing
- constitutional law
- practice and procedure
Advocates:
For the Appellants/Petitioners: Sharan Shahier, P. Vijaya Bhanu
For the Respondents: T. Asaf Ali, Maaroof, K. K. Preetha
For the Appellants/Petitioners: Sharan Shahier, P. Vijaya Bhanu
For the Respondents: T. Asaf Ali, Maaroof, K. K. Preetha
Table of Contents
2. The petitioner contends bail cancellation requires proof of misused liberty, while the prosecution argues custodial interrogation is essential for effective investigation given the accused previously resided abroad. (Para 5 , 6 , 7 )
3. The court emphasizes that custodial interrogation is qualitatively different from questioning an accused on bail and is necessary for effective investigation in serious, complex criminal matters. (Para 11 , 12 , 13 , 24 , 25 , 26 )
4. Bail can be cancelled to facilitate essential custodial interrogation in grave offenses, even without evidence of subsequent misuse of liberty, to ensure an effective, full-fledged investigation. (Para 8 , 9 , 10 )
5. The High Court dismissed the petition, confirming the cancellation of bail to permit necessary custodial interrogation during further investigation. (Para 26 )
6. Can bail be cancelled solely to facilitate further investigation when no breach of bail conditions has occurred?
Yes. While cancellation requires cogent circumstances, the court may cancel bail if custodial interrogation is necessary for a full-fledged investigation, especially when the accused's prior absence abroad hindered gathering vital evidence. (Para 8 , 10 , 12 )
7. Can an accused be compelled to produce personal mobile devices under Section 94 of the Bharatiya Nagarik Suraksha Sanhita (BNSS)?
No. Compelling an accused to produce incriminating documents or things like mobile phones violates the constitutional protection against self-incrimination guaranteed under Article 20(3) of the Constitution. (Para 15 , 21 , 22 , 23 , 24 )
8. Does a potency test or collection of physical evidence constitute testimonial compulsion under Article 20(3)?
No. Compelling an accused to undergo a potency test or provide physical/medical evidence is not testimonial in nature and does not violate the constitutional prohibition against self-incrimination. (Para 16 )
ORDER
This Crl. M.C. has been filed challenging the order passed by the Fast Track Special Court, Koyilandy, in C.M.P. No. 5 of 2026 in S.C. No. 414 of 2026, whereby the bail granted to the petitioner, who is the first accused in the said case, was cancelled.
2. The petitioner is the first accused in Crime No. 54 of 2026 of Payyoli Police Station, Kozhikode, in which the final report has been filed alleging offences punishable under Sections 332(a), 49, 64(2)(m) and 65(2) read with Section 3(5) of the Bharatiya Nyaya Sanhita, 2023 (for short, ‘the BNS’), and Section 6(1) read with Sections 5(l), 5(p) and 5(m), Section 12 read with Sections 11(iii) and 11(vi), and Section 16 read with Section 17 of the Protection of Children from Sexual Offences Act, 2012 (for short, ‘the POCSO Act’). The case is now pending as S.C. No. 414 of 2026 on the file of the Fast Track Special Court, Koyilandy.
3. The crux of the prosecution's allegation is that the first accused committed aggravated penetrative sexual assault repeatedly upon a 9-year-old minor girl after showing her pornographic videos and offering her gifts. The mother of the victim, who allegedly facilitated and abetted the commission of the offence, has been arrayed as the second accused. When the crime was registered, the petitioner was abroad and, therefore, could not be arrested during the investigation. Consequently, the final report was filed before the jurisdictional court showing the first accused as absconding. Upon submission of the final report, the learned Additional Sessions Judge made over the case to the Fast Track Special Court, Koyilandy, which took cognizance of the offences and issued summons to the petitioner. Pursuant to the summons, the petitioner appeared before the court and was enlarged on bail. The bail was granted mainly taking note of the fact that the petitioner had appeared in response to the summons issued by the court and that the final report had already been filed. Subsequently, the Circle Inspector of Police filed two applications before the Special Court. One was an application seeking further investigation, pointing out that certain material aspects of the case remained unexplored as the petitioner had remained abroad during the investigation. The other application sought cancellation of the bail granted to the petitioner, contending that his custodial interrogation is necessary to facilitate his potency examination, effect recovery of further evidence, and prevent the possibility of his absconding again. Upon considering the application and the materials placed on record, the learned Special Judge cancelled the bail granted to the petitioner. The said order is under challenge in this Crl. M.C.
4. Heard Sri. P. Vijayabhanu, the learned Senior Counsel for the petitioner, Sri. T. Asaf Ali, the learned Director General of Prosecution, Sri. Maaroof, who appeared for the survivor of this offence, and Smt. K. K. Preetha, the learned counsel for the additional third respondent.
5. The main contention advanced by the learned Senior Counsel for the petitioner is that the bail granted to the petitioner could not have been cancelled solely on the ground that further investigation was required in the case. According to the learned Senior Counsel, the cancellation of bail is unjustified, particularly in the absence of any material showing that the petitioner violated any of the conditions imposed while granting bail or otherwise misused the liberty granted to him. The learned Senior Counsel further submitted that the steps proposed to be undertaken as part of the further investigation, including the potency examination of the petitioner, recovery of his mobile phone and collection of other evidence, could be carried out without cancelling the bail, particularly when the petitioner is willing to cooperate with the investigation, undergo the potency examination and surrender the mobile phone used by him during the relevant period. Likewise, it was pointed out that t
