Kerala HC Upholds Bail Cancellation For Custodial Probe In Alleged Assault On 9-Year-Old, Says Section 94 BNSS Can't Compel Accused To Produce Incriminating Phones

The petitioner, the first accused in a case alleging repeated aggravated sexual assault of a nine-year-old child, was abroad during the investigation.

After the final report was filed showing him as absconding, he appeared in response to summons and was granted bail.

The investigating agency later sought further investigation and cancellation of bail, citing the need for custodial interrogation, including to recover mobile phones and investigate the locations and circumstances of the alleged offences. The Special Court cancelled bail; the petitioner challenged that order.

He argued that further investigation alone did not justify cancellation and offered to cooperate and produce a phone.

The prosecution maintained that custodial interrogation was necessary and that compelling production of incriminating phones under Section 94 BNSS would violate Article 20(3).

Bail cancellation and bail refusal are governed by distinct considerations. Under Dolat Ram v. State of Haryana, very cogent and overwhelming circumstances are ordinarily required to cancel bail, including a risk of absconding; under Puran v. Rambilas, a bail order that ignores material evidence or is perverse may be set aside.

Custodial interrogation may be qualitatively different from questioning a person protected by bail, as recognised in CBI v. Anil Sharma.

Article 20(3) protects an accused from compelled testimonial self-incrimination. Applying State of Bombay v. Kathi Kalu Oghad, physical or medical evidence is distinct from testimonial evidence.

Under State of Gujarat v. Shyamlal Mohanlal Choksi and V.S. Kuttan Pillai v. Ramakrishnan, Section 91 Cr.P.C.—and, correspondingly, Section 94 BNSS—cannot be used to compel an accused to produce documents or things; lawful search and seizure under separate statutory powers remain distinct.

The Court also followed the relevant Kerala High Court authorities on that distinction.

The Court accepted that further investigation alone does not mechanically justify bail cancellation, but found that the petitioner had remained abroad throughout the initial investigation, leaving material aspects unexplored.

Given the allegations, the victim’s age, the need to identify locations and examine connected persons, and the prosecution’s claim that multiple phones had been used, the Court considered custodial interrogation necessary for effective further investigation.

The petitioner’s offer to produce one phone did not resolve the investigative concerns.

The Court held that the phones could not be compelled from him by a Section 94 BNSS production order if their production would be incriminating; that limitation did not, however, make custodial interrogation or lawful investigative steps unnecessary.

The Criminal Miscellaneous Case was dismissed.