Section 438(4) CrPC | No Bar Against Filing Pre-Arrest Bail Plea In FIR U/S 376(3) IPC When Alleged Incident Happened Prior To 2018 Amendment: Delhi HC

The Delhi High Court has observed that there is no bar to file anticipatory bail under section 438 (4) of CrPC in an FIR registered under section 376(3) of Indian Penal Code, 1860 when the alleged incident happened prior to introduction of the Criminal Law (Amendment) Act, 2018.

Justice Jasmeet Singh made the observation while denying anticipatory bail to a father accused of raping her minor daughter when she was 15 years of age. While the alleged incident happened in the year 2017, the FIR was filed last year.

Section 376(3) of IPC states that anyone who commits rape on a woman under 16 years of age shall be punished with rigorous imprisonment for not less than 20 years, which may extend to imprisonment for life, and fine. Section 438 (4) CrPC, which pertains to pre-arrest bail, states that nothing in the provision shall apply to any case involving the arrest of any person on accusation of having committed an offence under sub-section (3) of section 376 or section 376AB or section 376DA or section 376DB of IPC.

The petitioner’s counsel submitted that the bar of section 438(4) of Cr.P.C will not be applicable in the matter as the alleged offences are stated to have happened in 2017 and the FIR was filed in 2022. It was also submitted that the FIR is vindictive in nature and was only registered as the petitioner and his wife were having strained matrimonial relationship and divorce proceedings are going on between the parties.

The petitioner also submitted that his daughter had earlier also made a complaint to the police where there was no allegation regarding the offence under section 376(3) of IPC.

On the other hand, the complainant’s counsel opposed the plea on the ground that on the date of the alleged incident, the daughter was 15 years old. It was submitted that the bar of section 438(4) of Cr.P.C is retrospective as it is only substantive law which will be prospective, adding that all procedural laws are retrospective in nature.

Rejecting the plea, the court observed that section 376(3) of IPC is a penal provision and cannot be retrospective in nature.

“Section 376(3) IPC was added in the statute books by way of the criminal law (Amendment) Act, 2018. The offence was committed in the year 2017 and in that year Section 376(3) IPC did not exist in the statute books. An accused cannot be charged for an offence which was subsequently added by way of an amendment,” the court said.

Justice Singh further observed that when section 376(3) was not an offence in 2017, the year when the incident is alleged to have been committed, there cannot be a bar under section 438(4) of Cr.P.C for filing the anticipatory bail.

However, Justice Singh dismissed the plea after observing that the allegations against the petitioner are of “an extremely serious nature” and that the fact of the petitioner exerting pressure, influence and coercion on the complainant cannot be ruled out.

The court said there is also reasonable apprehension of the applicant tampering with the witnesses and extending threats to the prosecutrix.

“In the present case, the allegations are against the father of the prosecutrix alleging him having committed rape against her when she was 15 years old. The prosecutrix could not gather enough courage to report the incident and it is only now that she has done so,” the court said.

Advocates Karan Sachdeva, Sanjay Sharma and Richa Sharma appeared for the petitioner. APP Ajay Vikram Singh appeared for State.

Title: VP v. THE STATE NCT OF DELHI & ANR

Citation: 2023 LiveLaw (Del) 25