Point of Law: Section 438 of Cr.P.C. provides for issuing directions for granting bail to a person apprehending arrest.

ORDER :

Does sub-section (4) of Section 438 of the Code of Criminal Procedure create an absolute bar in granting pre-arrest bail to an accused involved in the offence of rape of a minor girl? – This is the important question that arises for consideration in these bail applications.

2. The applicants in both cases who allegedly committed the offence, among other things, punishable under Section 376AB of the Indian Penal Code (for short, IPC) invoked the jurisdiction of this Court under Section 438 of the Code of Criminal Procedure (for short, Cr.P.C) seeking pre-arrest bail.

3. The facts in both cases are almost identical. The applicants are alleged to have committed penetrative sexual assault on their own minor daughters. The crimes were registered pursuant to the complaint of the mother of the victims. The applicants totally deny the allegations. They contend that a false case has been foisted against them at the behest of their wives to deny the custody of the minor victim, which they are fighting at the Family Court.

4. I have heard the learned counsel for the applicant in BA No.144/2023 -Sri.B. Raman Pillai and Sri.S.Rajeev, the learned counsel for the applicant in BA No.2157/2023 – Sri. Shibin K.F., the learned Senior Counsel for the defacto complainant in BA No.144/2023 -Sri. P.Vijayabhanu and the learned Senior Public Prosecutor -Sri. C.S.Hrithwik

5. The learned counsel for the applicants Sri.B. Raman Pillai, Sri.S.Rajeev and Sri.Shibin K.F submitted that the applicants are innocent of the offences alleged against them and they have been falsely implicated in the case. The counsel further submitted that no materials are on record to connect the applicants with the alleged crime; hence, they are entitled to get pre-arrest bail. The learned Senior Public Prosecutor Sri. C.S.Hrithwik as well as the learned Senior Counsel for the defacto complainant Sri. Vijayabhanu, on the other hand, submitted that the case diary in BA No.144/2023 reveals that the accusation made against the applicant therein is very serious in nature, it prima facie shows a premeditated criminal act on his part and his custodial interrogation is necessary for the investigation.

6. The learned Senior Public Prosecutor Sri.C.S.Hrithwik further submitted that sub-section (4) of Section 438 of Cr.P.C, explicitly excludes the application of the provision relating to pre-arrest bail in relation to any case involving the arrest of any person on accusation of having committed an offence under subsection (3) of Section 376 or Section 376-AB or Section 376-DA or Section 376-DB of IPC and inasmuch as the offences alleged in both cases include Section 376-AB of IPC as well, the applications for pre-arrest bail is not maintainable. In reply to the said argument, the learned counsel for the applicant in BA No.144/2023 Sri.S.Rajeev submitted that the exclusion of pre-arrest bail provisions by sub-section (4) of Section 438 of Cr.P.C would not constitute an absolute bar for the grant of bail if a prima facie case of commission of the offences mentioned therein is not made out or if the allegations are patently false or malafide. Reliance was placed on the three-Judge Bench decision of the Apex Court in Prathvi Raj Chauhan v. Union of India and Others [(2020) 4 SCC 727]. Referring to Sections 60A and 41 of Cr.P.C. and Section 26 of IPC, the learned counsel for the applicant in BA No.2157/2023 Sri.Shibin K.F submitted that the bar under sub-section (4) of Section 438 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.

7. Before dealing with the merits of the cases, I will advert to the plea of maintainability raised by the learned Senior Public Prosecutor based on Section 438(4) of Cr.P.C.

8. Section 438 of the Cr.P.C. provides for issuing directions for granting bail to a person a