Shahir Basheer vs State Of Kerala

Dr. Kauser Edappagath, J

This  application is filed under Section  482 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (for short, BNSS), seeking pre- arrest bail.

The applicant is the sole accused in Crime No.73/2026 of Chokli Police Station, Kannur District. The offences alleged are punishable under Sections 64(1), 64(2)(m), 69, 143(1)(f) and 143(2)  of  the  Bharatiya  Nyaya  Sanhita,  2023;  Section  66E  of  the Information  Technology  Act,  2000  and  Section  376  of  the  Indian Penal Code, 1860.

The prosecution case, in short, is that the applicant fell in love with the de facto complainant while they were studying in a college. In March 2017, the applicant made her believe that he would  marry  her  and  under  the  pretext  of  discussing  it  with  his parents, he brought her to his house at Olavilam, got her intoxicated and committed rape on her. He had recorded the sexual acts on his mobile phone and then, on several occasions till 21.07.2025,  at  different  places,  had  repeated  sexual  intercourse with her by threatening that the above photos and videos recorded on the phone would be published. Thereby, the applicant committed the above offences.

I have heard Sri.Priyesh Kumar M.P., the learned counsel for the applicant and Sri.K.A.Noushad, the learned Senior Public Prosecutor. Perused the case diary.

The learned counsel for the applicant submitted that the  applicant  is  innocent  and  has  been  falsely  implicated  in  the present case. The counsel further submitted that no materials are on record to connect the applicant with the alleged crime; hence, he is entitled to bail. The learned Senior Public Prosecutor, on the other hand, submitted that the alleged incident occurred as part of the applicant's intentional criminal acts, and if he is released on bail at this stage, it will affect the course of the investigation.

The law regarding the grant or refusal of pre-arrest bail is  well  settled.  Pre-arrest  bail  cannot  be  granted  as  a matter  of course. The power under Section 482 of BNSS could be exercised only when a special case is made out, that too, recording reasons thereof. Perusal of the case diary reveals that the accusation made against the applicant is very serious in nature, and it  prima facieshows a premeditated criminal act on his part.

It is reported that the applicant is abroad. The question whether the presence  of the accused in India is necessary at the time of filing the application for pre-arrest bail was considered by the Division Bench of this Court in Anu Mathew v. State of Kerala [2023 (3) KHC 151]. It was held that the mere fact that an accused was in a foreign country when filing an application for pre-arrest bail under Section 438 of Cr.P.C. does not make the application not maintainable. It was further held that when an accused who is abroad files an application for pre-arrest bail, the court may examine the factual submissions of both sides to determine  if  the  accused  has  a genuine  fear  of  arrest  in  a non- bailable offence and decide whether discretion should be exercised  in  his  favour  or  not.  However,  it  is  the  primary  duty  of an  accused  applying  for  pre-arrest  bail  from  abroad  in  a court  in India to disclose that he is abroad. He must also undertake to come to India when directed by the Court. The failure to disclose in the bail application that the accused was abroad at the time of filing the application alone would disqualify him from obtaining the extraordinary relief of pre-arrest bail. In other words, if an accused conceals that he was abroad when filing the application, that alone is enough  for the  Court to decline to exercise its discretion under Section 438 of Cr. P.C./Section 482 of BNSS in his favour.

The  bail  application  did  not  mention  that  the  applicant  was abroad at the time of filing. This concealment alone justifies dismissing the bail application. Therefore, the application is dismissed.