Bar On Anticipatory Bail U/S 482 BNSS In Certain Rape Cases Involving Minors Not Absolute: Punjab & Haryana High Court

The Punjab and Haryana High Court has held that bar on grant of anticipatory bail plea under Section 482 of the Bharatiya Nagarik Suraksha Sanhita (BNSS) in certain cases of rape involving minors is not absolute.

Section 482 BNSS bars grant of bail to a person booked under Section 65 and Section 70(2) of the Bharatiya Nyaya Sanhita, 2023 (BNS). Section 65 BNS relates to rape of women under age of 12 years. Section 70(2) BNS penalises gang rape of minor.

Justice Sumeet Goel said, "a plea for grant of anticipatory bail/pre-arrest bail; under Section 438 of Cr.P.C. for offences under Sections 376(3)/376AB/376DA/376DB of IPC & under Section 482 of BNSS, 2023 for offences under Section 65(2)/70(2) of BNS, 2023; is maintainable."

However the Court further said that, "Such a plea can be granted only when judicial scrutiny of the factual matrix of such case reflects that; insofar as allegations pertaining to offence(s) under Sections 376(3)/376AB/376DA/376DB of IPC or Section 65(2)/70(2) of BNS, 2023 are concerned; “No prima facie case is made out” or “the case is prima facie false” or “the case is motivated” or where “non- granting of such plea would cause miscarriage of justice or abuse of process of law.”

It is neither fathomable nor pragmatic to lay down any exhaustive or conclusive parameters as to what would be the touch-stone to determine these aspects in a given case, as every case has its own peculiar factual matrix, added the judge.

These observations were made in response to the anticipatory bail plea filed under Section 482 of BNSS, 2023 in FIR No.203 dated July 13, 2024 under Sections 64(2)(M), 65(1), 74, 75(2), 76, 78, 351(3) of BNS 2023 and Section 6 of POCSO Act.

According to the FIR, a 15-year-old girl, studying in class IX was raped by a man on several occasions and he threatened the alleged victim not to disclose the incident.

Counsel for the petitioner (accused) argued that, the petitioner has been falsely implicated into the FIR. It was submitted that he in fact saved the victim from the other boys who was teasing her on the way.

State Counsel argued that the plea is not maintainable because "the provision for grant of anticipatory bail in a case involving offences, as invoked in the FIR in question, is barred by statutory provision contained in Section 482(4) of BNSS, 2023."

He submitted that the petitioner is accused of sexually assaulting a child and the custodial interrogation of the petitioner is pertinent for effective investigation of the case.

After hearing the submissions, the Court considered the questions, "whether a petition for anticipatory bail is maintainable under Section 438 of Cr.P.C., 1973 for offences under Sections 376(3)/Section 376-AB/Section 376-DA/Section 376-DB of IPC, 1860 & under Section 482 of BNSS, 2023 for offences under Sections 65(2)/Section 70(2) of BNS, 2023."

Justice Goel highlighted that the provision of Sections 376(3), 376AB, 376DA and 376DB of IPC as also Section 438(4) of Cr.P.C., 1973 were brought in the statute book by way of criminal law (amendment) Bill, 2018 is similar to the provisions of Section 65(2)/Section 70(2) of BNS, 2023 and Section 482 of BNSS, 2023.

"What is conspicuous from these statutory provisions is the intent of the legislature that children are humanity's future; even though born to individual families, yet the Society, Nation and Public have collective responsibility towards creating a safe, joyful and salubrious environment for overall development of children to grow and thrive in. Sexual violation of a child is a most reprehensible crime against a child, Family; in fact against the entire humanity," said the judge.

Looking At Girl Child With 'Prurient Curiosity' Is 'Grave Moral Turpitude' In Our Culture

Justice Goel elucidated that, "In our culture where a girl-child is held in reverence, merely looking at her with prurient curiosity is an act of grave moral turpitude. Whereas sexual violation is the most degenerate, deviant and repugnant act & it must be condemned and punished accordingly."

 "Where a young girl-child is subjected to physical violation; she is actually a mere innocent child, who probably does not even fully understand what she has been subjected to. It is unimaginable what pain and suffering she will live through because of this horrific experience," the judge added.

Excluding Access To Bail Impinges Upon Human Liberty

The Court also said that "Excluding access to bail (including anticipatory bail) as a remedy indubitably impinges upon human liberty."

"Personal liberty, deprived when bail is refused, is too precious a value of our jurisprudential system recognised that the crucial power to negate it is a great trust exercisable, not casually but judicially, with lively concern for the cost to the individual and the community," it said.

Word Of Caution

The Court while opining that the anticipatory bail under Section 482 of BNSS, 2023 for offences under Section 65(2)/70(2) of BNS, 2023 is maintainable added that, "provided such an applicant is able to show that no prima facie case is made out."

"This Court must immediately sound a word of caution herein. In case the Court deems it appropriate to grant such a plea for grant of anticipatory bail, the Court ought to accord cogent reasons therefor showing due and manifest application of judicial mind to the facts of a given case," added the bench.

In the present case, the Court said that, "it would be imprudent and unfathomable to believe, at this stage, the bald assertion by the petitioner regarding his false implication, by giving caste angle to the incident, on the premise that in order to save the alleged actual culprits belonging to a high caste, the police/parents of victim have falsely implicated the petitioner."

Further, no substantial basis emerges to lay any credence to stand of petitioner that he has been falsely implicated on account of a money dispute, it added.

While noting that the petitioner is accused of assaulting a young girl aged about 15 years, Justice Goel held hence "the custodial interrogation of the petitioner is necessary for an effective investigation & to unravel the truth."

Consequently, the plea was rejected.

Mr. Ankur Malik, Advocate for the petitioner.

Ms. Mahima Yashpal, DAG, Haryana.

Citation: 2024 LiveLaw (PH) 230

Title: XXX v. XXX [CRM-M-36185-2024]