ABDUL RAFEEK @ RAFEEK vs STATE OF KERALA
- Court
- Kerala High Court
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE JOBIN SEBASTIAN
TH
WEDNESDAY, THE 4 DAY OF NOVEMBER 2026 / 13TH KARTHIKA, 1948
CRL.MC NO. 8940 OF 2026
CRIME NO.54/2026 OF PAYYOLI POLICE STATION, KOZHIKODE
AGAINST THE ORDER DATED 24.10.2026 IN CMP 5/2026 IN
SC NO.414 OF 2026 OF FAST TRACK SPECIAL COURT, KOYILANDY
PETITIONER/RESPONDENT/ACCUSED:
ABDUL RAFEEK @ RAFEEK
AGED 51 YEARS
S/O. IBRAHIM HAJI, CHANGAROTH HOUSE,
MEMUNDA P.O., KOZHIKODE DISTRICT, PIN - 673104
BY ADVS.
SRI.SHARAN SHAHIER
SRI.P.VIJAYA BHANU (SR.)
RESPONDENTS/STATE & PETITIONER/VICTIM:
1 STATE OF KERALA
REPRESENTED BY THE PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM, PIN - 682031
2 XXXXXXXXXX
XXXXXXX XXXXXX
Addl.R3
XXXXX
XXXXXXX XXXXXX
(IS IMPLEADED AS PER ORDER DATED 02.11.2026 IN
CRL.M.A.NO. 2/2026 IN CRL.M.C. NO. 8940/2026)
BY ADVS.
SHRI T. ASAF ALI, DIRECTOR GENERAL OF PROSECUTION - R1
SHRI MAAROOF- R2
SMT. K.K.PREETHA- ADDL.R3
THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON
02.11.2026, THE COURT ON 04.11.2026 PASSED THE FOLLOWING:
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“C.R.”
O R D E R
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.
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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.
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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 the prompt appearance of the petitioner
before the trial court immediately on getting summons itself rules out any
possibility of his abscondance in the future. The learned senior counsel
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further submitted that even if the prosecution entertains any apprehension
regarding the chance of abscondance, the petitioner is willing to surrender
his passport, if so directed by the court. Hence, the learned Senior Counsel
contended that the petitioner could not be deprived of his liberty merely
because the investigating agency proposes to undertake certain further
investigative steps after the filing of the final report. On these premises, it
was urged that the order passed by the learned Special Judge cancelling the
bail granted to the petitioner warrants interference.
6. Per contra, the learned Director General of Prosecution submitted
that the allegations in the case are extremely grave, involving the alleged
penetrative sexual assault on a minor child aged only 9 years. The learned
DGP pointed out that the petitioner had remained abroad throughout the
investigation and, consequently, the investigating agency could not subject
him to effective interrogation. According to the learned DGP, several vital
pieces of evidence are yet to be collected, including the mobile phones used
by the accused. It was further pointed out that the victim was allegedly
taken to different places and subjected to repeated sexual assaults and that
the places to which she was taken also had to be identified through a
detailed interrogation of the accused. The learned DGP urged that these
aspects of the investigation could be effectively pursued only by subjecting
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the accused to custodial interrogation after cancelling the bail granted to
him. The learned DGP further contended that directing the accused to
produce his mobile phones by issuing a summons under Section 94 of the
Bharatiya Nagarik Suraksha Sanhita, 2023 (for short, ‘the BNSS’),
corresponding to Section 91 of the Code of Criminal Procedure, 1973 (for
short, ‘the Cr.P.C.’), would amount to testimonial compulsion and would
certainly violate Article 20(3) of the Constitution of India, particularly when
the prosecution has a specific case that the mobile phones contain
incriminating material against the accused. Hence, according to the learned
DGP, the order passed by the learned Special Judge cancelling the bail to
facilitate further investigation is justified and warrants no interference.
7. The learned counsel appearing for the survivor and the additional
third respondent also advanced arguments in support of the submissions
made by the learned DGP.
8. At the outset, it is to be borne in mind that the considerations
governing the grant of bail and those governing its cancellation are not
identical. An order cancelling bail cannot be passed mechanically merely on
the ground that the investigating agency proposes to conduct further
investigation. Ordinarily, cancellation of bail may be justified by compelling
circumstances, such as the accused tampering with evidence, intimidating
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witnesses, misusing the liberty granted to him or otherwise acting in a
manner that would prejudice the fair conduct of the investigation or trial.
9. In Dolat Ram and others v. State of Haryana , [(1995) 1 SCC
349], the Hon’ble Supreme Court explained the distinction between rejection
of bail and cancellation of bail and observed that very cogent and
overwhelming circumstances are necessary for cancelling bail already
granted. However, the Court also recognised that the possibility of the
accused absconding or evading the due course of justice is also a relevant
consideration. Likewise, in Puran v. Rambilas , [(2001) 6 SCC 338], the
Hon’ble Supreme Court made it clear that an order granting bail passed by
ignoring material and evidence on record, particularly in heinous crimes and
without assigning proper reasons, could be set aside as perverse.
10. Therefore, it cannot be said that the power to cancel bail is
confined only to cases where the accused has subsequently misused the
liberty granted to him or violated the conditions of bail. In the present case,
the investigating agency sought cancellation of bail on the ground that such
cancellation is highly necessary for conducting a full-fledged and effective
investigation. According to the investigating agency, since the accused had
remained abroad throughout the initial stage of the investigation, an
effective investigation could not be conducted, and certain vital pieces of
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evidence are yet to be collected. The prosecution further highlighted that
the victim-minor-girl was taken to different places and, therefore, the
circumstances in which she was taken, the persons who facilitated the
same, the places where the alleged acts occurred, and other surrounding
circumstances required careful investigation.
11. Although the learned Senior Counsel for the petitioner opposed
this contention by submitting that, even according to the version of the
victim, she was subjected to sexual assault only at two places, and that the
contention regarding the need to investigate other locations to which the
victim was allegedly taken was merely a ruse to cancel the bail, this court is
unable to accept the said contention. Having regard to the victim's tender
age, it would be unsafe at this stage to assume that the available account
necessarily provides an exhaustive description of every place to which she
was allegedly taken. The investigating agency has to undertake the
necessary steps to verify the circumstances and identify the relevant
locations, in accordance with law. At this juncture, it is pertinent to note that
the mother of the victim is also an accused in the present case. The ordeal
and plight of a minor girl who was allegedly sexually exploited by the
petitioner with the help of her mother cannot go unnoticed. Therefore, the
identification of the places, preparation of site plans and mahazars, and
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examination of persons connected with those locations cannot be treated as
merely formal or inconsequential. The investigating agency is entitled to
explore the relevant circumstances and collect further evidence, subject to
the limitations imposed by law.
12. Having regard to the nature of the offences alleged and the fact
that the accused had remained abroad throughout the investigation without
cooperating with the investigating agency, this Court is of the view that
custodial interrogation of the petitioner during the course of further
investigation is highly necessary. The investigating agency cannot be
deprived of a legitimate opportunity to undertake effective interrogation
merely because the accused expressed a willingness to cooperate with the
investigation. This Court is not oblivious to the fact that the investigating
agency can question the accused even while he is on bail. However,
questioning an accused who enjoys the protection of an order of bail and
subjecting him to custodial interrogation are not equivalent. The distinction
lies in the degree of control available to the investigating agency and its
ability to undertake effective interrogation, confrontation and investigation
into matters that may lead to the discovery of relevant facts and materials.
13. In Central Bureau of Investigation v. Anil Sharma , [(1997)
7 SCC 187], the Hon’ble Supreme Court observed that custodial
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interrogation is qualitatively different from questioning a person who is
protected by an order of anticipatory bail. The Court emphasised that
effective interrogation may be necessary to elicit information and discover
materials that might otherwise remain concealed. Though the said decision
arose in the context of anticipatory bail, the underlying distinction between
ordinary questioning and custodial interrogation is relevant while considering
the necessity of custodial interrogation in the facts of the present case.
14. From the impugned order as well as the submissions made by the
learned DGP, it is discernible that one of the main steps to be undertaken in
the further investigation is the recovery of the mobile phones allegedly used
by the accused in the commission of the offence. There is a specific
allegation that the accused had shown pornographic videos to the victim, a
minor girl, taken her to different places, and sexually assaulted her.
Undisputedly, the recovery of the mobile phones is of vital significance in
this case.
15. Now, the crucial question that arises for consideration is whether
the accused can be directed to produce the said mobile phones by issuing a
summons or written order under Section 94 of the BNSS, which corresponds
to Section 91 of the Cr.P.C. Section 94(1 ) of the BNSS empowers a Court or
the officer in charge of a police station to require the production of any
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document or other thing considered necessary or desirable for the purpose
of an investigation, inquiry, trial or other proceedings. However, the power
to issue such a summons or notice for facilitating the production of a
document or thing is subject to the protection guaranteed under Article
20(3) of the Constitution of India, which declares that no person accused of
any offence shall be compelled to be a witness against himself.
16. In State of Bombay v. Kathi Kalu Oghad , [AIR 1961 SC
1808], the Hon'ble Supreme Court has clearly distinguished testimonial
evidence from physical or medical evidence and held that obtaining physical
or medical evidence, which does not involve compelling a person to furnish
testimonial evidence, would not attract the constitutional prohibition against
testimonial compulsion. Therefore, a direction to undergo a potency test,
provide a voice sample or furnish fingerprints, being measures intended to
obtain physical or medical evidence rather than testimonial evidence, would
not amount to testimonial compulsion and, by itself, would not violate the
protection guaranteed under Article 20(3) of the Constitution of India.
17. In State of Gujarat v. Shyamlal Mohanlal Choksi , [AIR 1965
SC 1251], the Hon’ble Supreme Court examined whether an accused person
could be directed to produce documents under Section 94(1) of the Cr.P.C.
The majority held that Section 94(1), on its true construction, did not apply
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to an accused person. The expression employed in the provision could not
be interpreted as authorising the compulsory production of documents by
the accused himself. The Court considered the statutory scheme, the
consequences of non-compliance with a production order and the
constitutional protection against self-incrimination, and concluded that the
legislature did not intend to include an accused within the scope of the
provision for compelling production. In paragraphs 17, 18 and 19 of the said
judgment, it was observed that;
“ 17. It was for the first time by the Constitution under Art.20(3), that a
limited protection has been conferred upon a person charged with the
commission of an offence against self-incrimination by affording him
protection against testimonial compulsion. The fact that in certain
provisions like Ss. 161, 175, 342 and 343 of the Code of Criminal
Procedure limited protection it the matter of answering questions which
might tend to incriminate or expose him to a criminal charge or to
penalty or forfeiture has been granted, may indicate that in the
interpretation of other provisions of the Code, an assumption that the
protection against self-incrimination was implicit has no place.
18. Failure to comply with an order under S.94 of the Code of Criminal
Procedure may undoubtedly expose a person to penal action under S.485
of the Code, and he may be prosecuted under S.175 of the Indian Penal
Code. In my judgment, refusal to produce a document or thing on the
ground that the protection guaranteed by Art.20(3) would since the
enactment of the Constitution be infringed thereby would be a reasonable
excuse for non-production within the meaning of S.485 of the Code of
Criminal Procedure and an order which is in violation of Art.20(3)
requiring the person to produce a document would not be regarded as
lawful within the meaning of S.195 of the Indian Penal Code. But, apart
from the protection conferred by Art.20(3), there is no reservation which
has to be implied in the application of S.94(1).
19. ………..Whether in a given case the guarantee of protection against
testimonial compulsion under Art.20(3) is infringed by an order of a
Court acting in exercise of power conferred by S.94(1) must depend upon
the nature of the document ordered to be produced. If by summoning a
person who is accused before the Court to produce documents or things
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he is compelled to be a witness against himself, the summons and all
proceedings taken thereon by order of the Court will be void. This
protection must undoubtedly be made effective but within the sphere
delimited by the judgment of this Court in Kathi Kalu Oghad's case. It
needs, however, to be affirmed that the protection against what is called
testimonial compulsion under Art.20(3) is against proceedings in Court;
it does not apply to orders which may be made by a police officer in the
course of investigation. The Court cannot, therefore, be called upon to
consider whether the action of a police officer calling upon a person
charged with the commission of an offence to produce a document or
thing in his possession infringes the guarantee under Art.20(3) of the
Constitution.”
18. Likewise, in V. S. Kuttan Pillai v. Ramakrishnan and
Another , [(1980) 1 SCC 264], the Hon’ble Supreme Court considered the
scope of Section 91(1) of the Cr.P.C. in the light of Shyamlal Mohanlal Choksi
(cited supra). The Court reiterated that a summons requiring production of a
document or thing under Section 91(1) cannot be issued against a person
accused of an offence. The Court also considered the distinction between
compelling an accused to produce documents and obtaining documents
through a search conducted in accordance with the statutory provisions.
A search warrant issued under Section 93 of the Cr.P.C. stands on a different
footing from a summons requiring the accused personally to produce
documents. Consequently, the prohibition against compelled production by
an accused does not invalidate the independent statutory powers of search
and seizure.
19. Similarly, in Gopalakrishnan Nayanar v. Sasidharan
Nambiar, [1996 KHC 21], the Hon’ble Division Bench of this Court
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considered whether a person against whom allegations of an offence had
been made in a complaint could be directed to produce documents under
Section 91 of the Cr.P.C. while an inquiry under Section 202 Cr.P.C. was
pending. The Court held that a person against whom offences are alleged in
a complaint is an accused person notwithstanding the fact that the inquiry
contemplated under Section 202 of the Cr.P.C. has not been completed.
Therefore, an order under Section 91 Cr.PC. cannot be issued against such a
person.
20. In Kurian v. Joseph and Others , [2021 (2) KHC 124], this
Court considered whether the complainant could invoke Section 91(1) Cr.P.C.
to require the accused to produce the original sale deed before the Court.
Following Shyamlal Mohanlal Choksi and the Division Bench decision in
Gopalakrishnan Nayanar (cited supra), the Court held that a direction under
Section 91(1) of the Cr.P.C. could not be issued to an accused for production
of an incriminating document. The Court further observed that, where the
statutory requirements were satisfied, a general search warrant under
Section 93(1)(c) of Cr.PC. could be issued for obtaining the document. The
Court referred in this context to V. S. Kuttan Pillai v. Ramakrishnan (cited
supra) and Jayadeva Panicker v. Velayudhan, [1986 KLT 1303]. The
judgment maintains the distinction between compulsory production by the
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accused and lawful recovery of documents through other statutory
procedures.
21. In Rajesh T.K. v. State of Kerala , [2023 KHC OnLine 9993],
this Court examined the validity of notices issued to accused persons under
Section 91 of the Cr.P.C. Referring to V. S. Kuttan Pillai (cited supra) and the
earlier Hon’ble Supreme Court decisions, this Court reiterated that the
expression person in Section 91(1) does not include a person accused of an
offence for the purpose of compelling production of documents or things.
Compelling an accused to produce documents through such a notice would
be contrary to the statutory interpretation adopted by the Hon’ble Supreme
Court and the constitutional protection against testimonial self-incrimination.
In paragraph 5 of the said judgment, it was observed that;
“5. In these cases, the challenge is against the notice issued under S.91
of the Code to the accused. The Apex Court in V. S. Kuttan Pillai v.
Ramakrishnan and Others (1980) 1 SCC 264, after referring to the law
laid down in Shyamlal Mohanlal v. State of Gujarat (AIR 1965 SC 1251),
M. P. Sharma and Others v. Satish Chandra, District Magistrate, Delhi
and Others (AIR 1954 SC 300), Swarnalingam Chettiar v. Assistant
Inspector of Labour, Karaikudi (AIR 1955 Mad. 716), State of Bombay v.
Kathi Kalu Oghad and Others (AIR 1961 SC 1808) have concluded that
it is indisputable that the expression "person" in S.91(1) does not take
within its sweep a person accused of an offense. In other words, a
summons issued to an accused person to produce a thing or document
considered necessary or desirable for the purpose of an investigation,
inquiry or trial would imply compulsion, and the document or thing so
produced would be compelled testimony and would be violative of the
constitutional immunity against self-incrimination.”
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22. In view of the authoritative pronouncements of the Hon’ble
Supreme Court and this Court, it is evident that Section 94(1) of the BNSS,
which corresponds to Section 91(1) of the Cr.P.C., cannot be invoked to
compel an accused to produce documents or other things which would
incriminate him, for an investigation, inquiry or trial.
23. The principles laid down in Shyamlal and V.S. Kuttan Pillai (cited
supra) have consistently been followed by this Court and, therefore,
continue to govern the interpretation of Section 94 of the BNSS. It is true
that the mere production of a physical object does not invariably amount to
testimonial compulsion. However, when the investigating agency seeks to
compel the accused to produce his mobile phone, particularly when it is
alleged to contain incriminating materials against him, such compulsion
would violate the protection guaranteed under Article 20(3) of the
Constitution of India.
24. Therefore, I am of the view that the investigating agency cannot
compel the accused to produce the mobile phone by resorting to Section 94
of the BNSS. In the circumstances of the present case, custodial
interrogation of the accused assumes significance, particularly to ascertain
how many mobile phones were used by him, when the prosecution has a
specific case that he had been using several mobile phones, and to facilitate
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the recovery of the same. As already stated, the prosecution has a
grievance that the investigating agency was handicapped in conducting an
effective investigation as the accused remained abroad throughout the
investigation. According to the prosecution, several material aspects
concerning the circumstances in which the minor victim was taken to
different places and subjected to sexual assault remain to be investigated.
25. The willingness expressed by the learned Senior Counsel for the
petitioner to produce one mobile phone would not, by itself, establish that
custodial interrogation of the petitioner is unnecessary. In the present case,
the learned DGP submitted that the petitioner had been using several mobile
phones and that the production of one of them would not suffice for the
purpose of the investigation. Moreover, the further investigation in this case
does not appear to be confined to obtaining possession of the mobile
phone. Its object is also to ascertain the circumstances surrounding the
alleged commission of the offences and to collect all relevant evidence in
accordance with law. More importantly, the prosecution has pointed out that
the places to which the minor victim was allegedly taken have to be
identified and investigated.
26. Having regard to all these circumstances, I am of the view that
this is a case in which custodial interrogation of the petitioner is highly
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warranted to facilitate an effective further investigation and to unearth the
relevant facts and circumstances involved in this case. Hence, I find no
illegality or impropriety in the order passed by the learned Special Judge
cancelling the bail granted to the petitioner.
Resultantly, this Crl. M.C. fails and is accordingly dismissed.
Sd/-
JOBIN SEBASTIAN
JUDGE
ANS
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APPENDIX OF CRL.MC NO. 8940 OF 2026
Annexure 1 A TRUE COPY OF THE FINAL REPORT IN CRIME
NO.54/2026 DATED 15.06.2026
Annexure 2 A TRUE COPY OF THE ORDER IN C.M.P. NO. 3
OF 2026, IN SC 414/2026 DATED 29/9/2026
PASSED BEFORE THE FAST TRACK SPECIAL COURT
KOYILANDY
Annexure 3 A TRUE COPY OF C.M.P. NO. 4 OF 2026 IN SC
414/2026 FILED BY THE C I OF POLICE
KOYILANDY DATED 5/10/2026 FILED BEFORE THE
FAST TRACK SPECIAL COURT KOYILANDY
Annexure 4 A TRUE COPY OF C.M.P. NO. 5 OF 2026 IN SC
414/2026 FILED BY THE C I OF POLICE
KOYILANDY DATED 5/10/2026 FILED BEFORE THE
FAST TRACK SPECIAL COURT KOYILANDY
Annexure 5 A TRUE COPY OF THE COUNTER STATEMENT FILED
BY THE PETITIONER IN C.M.P. NO. 4 OF 2026
& C.M.P. NO. 5 OF 2026 IN SC 414/2026
DATED 12/10/2026 FILED BEFORE THE FAST
TRACK SPECIAL COURT KOYILANDY
Annexure 6 A FREE COPY OF THE ORDER DATED 24.10.2026
IN C.M.P. NO. 5 OF 2026 IN SC NO. 414/2026
PASSED BY THE FAST TRACK SPECIAL COURT
KOYILANDY
Annexure 7 A TRUE COPY OF THE ENDORSEMENT ON THE
PASSPORT SHOWING EXIT ON 14.01.2026
Annexure 8 A TRUE COPY OF THE FLIGHT TICKET OF THE
PETITIONER FOR 14.01.2026
Annexure A9 A TRUE COPY OF THE E-MAIL DATED
28.10.2026, ALONG WITH THE ORDER
RESPONDENT ANNEXURES
ANNEXURE R1(A) TRUE COPY OF ORDER IN BA.1911 OF 2026
ANNEXURE R1(B) TRUE COPY OF THE REPORT
ANNEXURE R1(C) TRUE COPY OF WARRANT DATED 09.06.2026
ANNEXURE R1(D) TRUE COPY OF THE LOOKOUT NOTICE
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ANNEXURE R1(E) TRUE COPY OF THE STATEMENT OF VICTIM
ANNEXURE R1(F) TRUE COPY OF STATEMENT OF DOCTOR
YUMNAPAREEKUTTY DATED 26.10.2026
ANNEXURE R1(G) TRUE COPY OF STATEMENT RECORDED UNDER
SECTION 183 OF BNSS