1. Bail granted for offences under the Bharatiya Nyaya Sanhita and the POCSO Act was challenged on the grounds of compelling necessity for further investigation and custodial interrogation. (Para 1 , 2 , 3 )
Back
Next 
2026 Supreme(Online)(Ker) 68101
IN THE HIGH COURT OF KERALA AT ERNAKULAM
Jobin Sebastian, J
ABDUL RAFEEK @ RAFEEK – Appellant
Versus
STATE OF KERALA – Respondent
Crl.MC 8940/2026
Important Points
Custodial interrogation is necessary in grave offenses to prevent evidence loss. Compelling an accused to produce incriminating devices via summons under Section 94 BNSS/Section 91 CrPC violates the constitutional protection against self-incrimination under Article 20(3), distinguishing such testimonial compulsion from non-testimonial physical or medical evidence.
Subject
Criminal Law - Bail and Procedure
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
Code of Criminal Procedure, 1973: S.91, S.93, S.94(1), S.485, S.175, S.161, S.342, S.343, S.202
Constitution of India: Art.20(3)
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
Code of Criminal Procedure, 1973: S.91, S.93, S.94(1), S.485, S.175, S.161, S.342, S.343, S.202
Constitution of India: Art.20(3)
Headnote
(A) Bharatiya Nyaya Sanhita, 2023 - Sections 332(a), 49, 64(2)(m), 65(2) and 3(5); Protection of Children from Sexual Offences Act, 2012 - Sections 6(1), 5(l), 5(p), 5(m), 12, 11(iii), 11(vi), 16 and 17; Bharatiya Nagarik Suraksha Sanhita, 2023 - Section 94(1); Constitution of India - Article 20(3) - Cancellation of bail for further investigation - Custodial interrogation vs. questioning on bail - Protection against self-incrimination - Compulsory production of incriminating materials - Custodial interrogation is qualitatively different from questioning an accused person protected by bail, as it allows for effective confrontation and discovery of facts (Paras 12-13) - An order cancelling bail is justified in heinous crimes when the accused has evaded investigation and custodial interrogation is necessary to facilitate potency examination, recovery of evidence, and identification of crime scenes (Paras 10-12).
(B) Bharatiya Nagarik Suraksha Sanhita, 2023 - Section 94(1); Constitution of India - Article 20(3) - Compelling an accused to produce a document or thing that may incriminate them under Section 94(1) of the BNSS (corresponding to Section 91 of the Cr.P.C.) amounts to testimonial compulsion and violates the constitutional protection against self-incrimination (Paras 15, 17, 21, 22) - A distinction exists between testimonial evidence and physical or medical evidence; directions to undergo a potency test or provide fingerprints do not violate Article 20(3) as they are not testimonial in nature (Para 16).
Facts of the case:
The first accused was alleged to have repeatedly committed aggravated penetrative sexual assault on a 9-year-old minor girl, with the mother of the victim arrayed as the second accused for abetment. The first accused was abroad during the investigation and was shown as absconding in the final report. Upon appearing in response to court summons, the accused was granted bail. The investigating agency subsequently sought cancellation of bail, contending that custodial interrogation was essential for potency examination, recovery of mobile phones used in the crime, and identification of various locations where the victim was allegedly taken. The Special Court cancelled the bail, which was challenged before the High Court.
Findings of Court:
The court found that given the gravity of the offense and the fact that the accused had remained abroad throughout the initial investigation, custodial interrogation was necessary. It was determined that the production of mobile phones containing incriminating material cannot be compelled through a summons under Section 94 of the BNSS without violating Article 20(3) of the Constitution.
Issues: Whether the cancellation of bail was justified to facilitate further investigation and whether an accused can be legally compelled to produce incriminating electronic devices through a summons under Section 94(1) of the BNSS.
Ratio Decidendi: Custodial interrogation is essential in grave offenses to unearth relevant facts and identify locations, especially when the accused has previously evaded the law. Since the right against self-incrimination under Article 20(3) prohibits compelling an accused to produce incriminating evidence via summons, custodial interrogation becomes the legitimate and necessary means for the recovery of such evidence.
Result: Crl. M.C. fails and is accordingly dismissed.
(B) Bharatiya Nagarik Suraksha Sanhita, 2023 - Section 94(1); Constitution of India - Article 20(3) - Compelling an accused to produce a document or thing that may incriminate them under Section 94(1) of the BNSS (corresponding to Section 91 of the Cr.P.C.) amounts to testimonial compulsion and violates the constitutional protection against self-incrimination (Paras 15, 17, 21, 22) - A distinction exists between testimonial evidence and physical or medical evidence; directions to undergo a potency test or provide fingerprints do not violate Article 20(3) as they are not testimonial in nature (Para 16).
Facts of the case:
The first accused was alleged to have repeatedly committed aggravated penetrative sexual assault on a 9-year-old minor girl, with the mother of the victim arrayed as the second accused for abetment. The first accused was abroad during the investigation and was shown as absconding in the final report. Upon appearing in response to court summons, the accused was granted bail. The investigating agency subsequently sought cancellation of bail, contending that custodial interrogation was essential for potency examination, recovery of mobile phones used in the crime, and identification of various locations where the victim was allegedly taken. The Special Court cancelled the bail, which was challenged before the High Court.
Findings of Court:
The court found that given the gravity of the offense and the fact that the accused had remained abroad throughout the initial investigation, custodial interrogation was necessary. It was determined that the production of mobile phones containing incriminating material cannot be compelled through a summons under Section 94 of the BNSS without violating Article 20(3) of the Constitution.
Issues: Whether the cancellation of bail was justified to facilitate further investigation and whether an accused can be legally compelled to produce incriminating electronic devices through a summons under Section 94(1) of the BNSS.
Ratio Decidendi: Custodial interrogation is essential in grave offenses to unearth relevant facts and identify locations, especially when the accused has previously evaded the law. Since the right against self-incrimination under Article 20(3) prohibits compelling an accused to produce incriminating evidence via summons, custodial interrogation becomes the legitimate and necessary means for the recovery of such evidence.
Result: Crl. M.C. fails and is accordingly dismissed.
Legal Category Hierarchy
- crime and sentencing
- practice and procedure
Advocates:
For the Appellants/Petitioners: Sharan Shahier, P. Vijaya Bhanu (Sr.)
For the Respondents: T. Asaf Ali, Maaroof, K.K. Preetha
For the Appellants/Petitioners: Sharan Shahier, P. Vijaya Bhanu (Sr.)
For the Respondents: T. Asaf Ali, Maaroof, K.K. Preetha
Table of Contents
2. Petitioner argued bail cancellation is unjustified without breach of conditions; prosecution contended custodial interrogation is essential for evidence recovery and effective investigation into grave offences. (Para 5 , 6 )
3. The court found custodial interrogation necessary due to the accused's non-cooperation while abroad, the gravity of the offences, and the need to retrieve vital incriminating material evidence. (Para 10 , 11 , 12 )
4. Custodial interrogation is qualitatively different from questioning an accused on bail, and its necessity in grave offences warrants bail cancellation to facilitate effective investigation and recovery of evidence. (Para 8 , 12 )
5. Can bail be cancelled solely to facilitate further investigation?
While cancellation is not automatic, it is justified if cogent and overwhelming circumstances exist, such as the need for custodial interrogation to discover vital evidence, particularly when the accused's prior conduct hindered investigation. (Para 8 , 10 , 11 , 12 )
6. Is there a legal distinction between ordinary questioning and custodial interrogation regarding the investigation of an accused?
Yes, custodial interrogation offers a higher degree of control for the investigating agency, enabling effective confrontation and discovery of facts that cannot be achieved through questioning a person protected by bail. (Para 12 )
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
