Bar On Anticipatory Bail U/S 438(4) CrPC In Cases Of Rape Of Minors Not Absolute: Kerala High Court

The Kerala High Court on Wednesday reiterated that Section 438(4) of the Code of Criminal Procedure (CrPC) does not create an absolute bar in the grant of anticipatory bail to an accused alleged of raping a minor girl when no prima facie materials exist warranting the arrest of the accused.

Section 438(4) excludes the grant of pre-arrest bail to offences under Sections 376(3), 376-AB, 376-DA or 376-DB of the IPC, which pertain to the offence of rape or gang rape with a minor woman under the age of twelve or sixteen years.

Justice Kauser Edappagath, while noting that the grievous nature of the afore offences certainly warranted and justified the exclusion of pre-arrest bail, however, added that where such cases were patently false or motivated allegations, such exclusion would not come into play.

"If the exclusion of the provision for pre-arrest bail embodied in Section 438(4) of Cr.P.C. is treated as absolute, there will be no protection available to innocent persons against whom false and motivated accusations are made. Protecting the innocent is equally important, like convicting the guilty. The criminal justice system needs to strike a balance between punishing the guilty and protecting the innocent. Thus, the exclusion clause cannot, by any reasonable interpretation, be treated as applicable when no case is made out or allegations are patently false or motivated. Limiting the exclusion to genuine cases is essential to protect the fundamental right of life and liberty guaranteed under Article 21 of the Constitution of India," the Court observed. 

The petitioners in the two bail applications before the Court were alleged to have committed penetrative sexual assault on their own minor daughters. The crimes were registered on the basis of the complaint of the mother of the victims. The petitioners however denied the allegations against them and argued that a false case had been foisted upon them at the behest of their wives, in order to deny them the custody of their minor child. 

The Court at the outset embarked upon a discussion of the maintainability of the two bail applications before it under Section 438 Cr.P.C. upon the argument made by the Senior Public Prosecutor that the applications were not maintainable in view of the bar under Section 438(4). 

Perusing Section 438(4) Cr.P.C., the Court noted that the provision did not impose an absolute fetter to the grant of pre-arrest bail regarding the offences mentioned therein. The Court took note that the only restriction was that the provision regarding pre-arrest bail shall not apply to any case “involving the arrest” of any person accused of having committed an offence under Sections 376(3), 376-AB, 376-DA or 376-DB of IPC. 

The Court was of the view that the phrase 'involving arrest' was significant and ought to be read in conjunction with Sections 60A ('Arrests to be made strictly in accordance to the Code') and 41 ('When police may arrest without warrant') of Cr.P.C. and Section 26 ('Courts by which offences are triable') of IPC.

Thus, perusing Sections 41(1) (ba) of Cr.P.C., which deals with the arrest of a person, and Section 60A Cr.P.C. which states that no arrest shall be made except in accordance with the provisions of the Code or any other law for the time being in force providing for arrest, the Court concluded that an arrest could be effected only if there is ‘credible information’ and the police officer had ‘reason to believe’ that the offence had been committed and that such arrest was necessary.

On a conjoint reading of the two provisions, along with Section 26 IPC which defines 'reason to believe' the Court thus proceeded to observe that, 

"...the bar under Section 438(4) of Cr.P.C. would attract only in a case where the information received by the police regarding the commission of the offence by the accused is credible and based on that credible information, there are reasons to believe that the accused has committed the offence. In other words, in cases where no prima facie materials exist warranting the arrest of the accused, the bar under sub-section (4) of Section 438 would not attract, and the court has the power to direct a pre-arrest bail. There cannot be any mandate under the law to arrest an innocent". 

The Court also took note of certain statutes such as the Scheduled Castes and Schedule Tribes (Prevention of Atrocities) Act, 1989, the Unlawful Atrocities Prevention Act, 1967, and the Terrorist and Disruptive Activities (Prevention) Act, 1987 (TADA), which excluded the grant of pre-arrest bail under Section 438 Cr.P.C. on being accused of certain offences therein. 

The Court ascertained that the wording of the provisions therein was identical to that of Section 438(4) Cr.P.C. It also took note of a plethora of decisions by the Apex Court, as well as the High Court which laid down that the bar created by those provisions for the operation of Section 438 would not apply when no prima facie case is made out for applicability of the penal provisions of those statutes. 

Thus, while duly observing on the one that hand that rape is an offence against the person of a woman, as well as a crime against the entire society, which could have lasting effects on a victim’s development and sense of safety to varying degrees throughout life, the Court held that on the other hand, where such cases are patently false, an innocent person could not be termed an accused. 

"I hold that the exclusion of pre-arrest bail provision by Section 438(4) of Cr.P.C. in respect of the offences mentioned therein is not to be read as absolute, where it was discernible to the court that the allegations are patently false or motivated and no prima facie materials exist warranting the arrest of the accused. The exclusion clause applies only when a prima facie case of commission of offences is made out. This may have to be determined by the Court concerned in the facts and circumstances of each case," the Court declared. 

Thus, on evaluating the factual circumstances of each of the case before it, it dismissed the first application for pre-arrest bai, and closed the second by recording the submission of the Senior Public Prosecutor that the second petitioner would not be arrested on account of lack of evidence to justify the allegation against him. 

Counsel for the Petitioner in Bail Appl. No. 144/ 2023: Senior Advocate B. Raman Pillai, and Advocates K.K. Dheerendrakrishnan, N.P. Asha, R. Harishankar, and S. Rajeev

Counsel for the Respondents in Bail Appl. No. 144/ 2023: Senior Public Prosecutor C.S. Hrithwik, Senior Advocate P. Vijaya Bhanu, and Advocates Nikita J. Mendez, P.M. Rafiq, M. Revikrishnan, Ajeesh K. Sasi, Sruthy N. Bhat, Rahul Sunil, and Sruthy K.K. 

Counsel for the Petitioner in Bail Appl. No. 2157/ 2023: Advocates Shibin K.F. and Seby Joseph

Counsel for the Respondents in Bail Appl. No. 2157/ 2023: Senior Public Prosecutor C.S. Hrithwik, and Advocates C.P. Udayabhanu, R.K. Asha, Abhilash A.J., Navaneeth N. Nath, P.U. Pratheesh Kumar, Boban Palat, Abhishek M. Kunnathu, and Rassal Janardhanan A. 

Citation: 2023 LiveLaw (Ker) 499 

Case Title: XXX v. State of Kerala & Ors. and connected matter.. 

Case Number: BAIL APPL. NO. 144 OF 2023 & BAIL APPL. NO. 2157 OF 2023

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