S.438(4) CrPC | Bar On Grant Of Anticipatory Bail For Certain Rape Offences Not Attracted If Allegations Prima Facie False: Kerala High Court

The Kerala High Court has held that bar on grant of anticipatory bail for certain rape offences, as indicated under Section 438(4) of CrPC, will not be attracted if such offences are prima facie not made out from the material placed on record or the allegations appear to be false.

Section 438(4) bars anticipatory bail to an accused allegedly involved in offences punishable under Sections 376(3) (rape of woman under 16 years of age), 376 AB (rape on woman under twelve years of age), 376 DA (Gang rape on a woman under sixteen years of age) and 376 DB (Gang rape of a woman under 12 years of age).

Single Bench of Justice Ziyad Rahman A.A. observed that merely because any of the offences under Sections 376 (3), 376 AB, 376 DA and 376 DB are incorporated amongst other offences in the FIR, the valuable rights of the accused cannot be denied if a prima facie case is not made out.

"When there are no convincing reasons to find out such a prima facie case as to the said offences, the prohibition contained in the said provision should not be brought into force automatically, without any application of mind, thereby denying the personal liberty of a person, which is a fundamental right under the Constitution of India. When there are reasonable and valid grounds to suspect the veracity of the allegations, the court should not hesitate to pass appropriate orders to protect the personal liberty of the person against whom such accusations are made," the Bench noted. 

The mother alleged that petitioner-father committed sexual assault on his 3.5 years old daughter. He was thereby booked under Sections 376 ('Punishment for sexual assault'), 376 (2) (f) ('Punishment for rape by relative, guardian or teacher of, or a person in a position of trust or authority towards the woman') and Section 376 AB, as well as those under Sections 4(2)(d) (b) ('Punishment for penetrative sexual assault'), 6 ('Punishment for aggravated penetrative sexual assault'), 5(i), 5(n) and 5 (m) ('Aggravated penetrative sexual assault') of Protection of Children from Sexual Offences Act (POCSO Act). 

When the child was first subjected to examination by a Clinical Psychologist, it was reported that the child had been "well-tutored" by the mother and grandparents. The mother thereafter refused to produce the victim before the Medical Board which was constituted to get further clarity in the matter.

The mother then produced a video footage to substantiate her allegations against the petitioner but it was said to have certain discrepancies. She however refused to produce the smartphone containing the said video footage when a notice was issued to her in this regard. 

The petitioner thus contended that the entire case was fabricated, and that a false complaint was submitted to deny him the custody of the child. The Court on noting the non-cooperation and reluctance on part of the mother (de facto complainant) said it was "compelled to accept the contention of the petitioner regarding the false nature of the allegations, for the purpose of deciding the application". 

The Court was of the view that when the materials produced on record were itself insufficient to attract a prima facie case of any of the offences under Sections 376 (3), 376 AB, 376 DA and 376 DB and since the false nature of the allegation is evident, the bar under Section 438(4) CrPC would not come into play, and that it would not be precluded from exercising its power under Section 438 for grant of anticipatory bail. 

The Court relied on Prathvi Raj Chauhan v. Union of India (2020), wherein Supreme Court, in case of a similar prohibition under the Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, held that if a prima facie case is not made out as regards the offences under the Act, nothing would preclude the Court from exercising its powers under section 438 of the CrPC.

Thus, the Court in the present case was of the considered view that the materials placed on record, particularly the refusal on the part of the de facto complainant to cooperate with the investigation, would make out a strong case to suspect the veracity of the allegations.

It thus allowed the application for anticipatory bail, while directing the petitioner to surrender before the Investigating Officer within a week for subjecting himself to interrogation, and added that the petitioner ought to be released on the same day as the surrender upon his executing a bond for Rs 1,00,000/- with two solvent sureties each for the like sum, to the satisfaction of the Investigating Officer.

The petitioner-accused was represented by Advocates Ajith Murali and Mohanan M.K. Senior Public Prosecutor Seetha S. and Advocates Deepu Thankan, Ummul Fida, Lakshmi Sreedhar, Lekshmi P. Nair, and Namitha K.M. appeared on behalf of the respondents. 

Case Title: XXX v. State of Kerala & Anr. 

Citation: 2023 LiveLaw (Ker) 441

Case Number: BAIL APPL. NO. 1490 OF 2023

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