The court held that mere assertions by the State regarding the need for custodial interrogation are insufficient; a stronger evidentiary basis is required to justify such measures.

ORDER :

BECHU KURIAN THOMAS, J.

This bail application is filed under section 482 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (for short ‘ BNSS ’).

2. Petitioner is the second accused in Crime No.559/2025 of Peramangalam Police Station, Thrissur registered for the offences punishable under sections 351(2), 296(b) and 318(4) r/w Section 3 (5) of Bharatiya Nyay Sanhita, 2023 (for short ‘ BNS ’) and 67(a) of Information Technology Act, 2000 (for short ‘IT Act’).

3. The prosecution alleges that the first accused had, after obtaining certain nude photographs of the de facto complainant during the period from 01.01.2024 to 31.12.2024 committed rape on her at Sharjah and again in a rented house in Kerala and thereafter threatened the defacto complainant to transfer Rs.9,50,000/- to the Bank account of the second accused and also threatened to kill the children of the de facto complainant and thereby committed the offences alleged.

4. I have heard Sri.M.R.Dhanil, the learned counsel for the petitioner as well as Smt.Sreeja V, the learned Public Prosecutor and Sri.Vivek P K, the learned counsel for the de facto complainant.

5. The learned counsel for the petitioner submitted that petitioner has been falsely arrayed as an accused and that she has no involvement in the alleged crime.

6. The learned Public Prosecutor opposed the bail application and submitted that custodial interrogation is necessary.

7. The petitioner’s husband is the first accused. He is alleged to have raped the defacto complainant from January 2024 to December 2024 at various places inside and outside the country.

8. The de facto complainant is alleged to have transferred large amounts of money into the account of the petitioner. The statement of the de facto complainant indicates that the amounts were transferred on the direction of the first accused. Petitioner’s role in the said transfer is not evident. Even according to the de facto complainant, it was at the direction and insistence of the first accused that the amounts were transferred.

9. Though the de facto complainant alleges that the petitioner had threatened her, since the petitioner’s husband is alleged to have raped the de facto complainant for a sufficiently long period of time at various places and had even obtained her nude photographs and videos of the de facto complainant, I am of the view that the allegation of the de facto complainant against the petitioner cannot be prima facie viewed as sufficient enough to require a custodial interrogation.

10. Apart from the above, the de facto complainant is a matured lady of 49 years old, and she has, in her statement, mentioned that she had indulged in the physical relationship with the husband of the petitioner on several occasions, though she alleges those as instances of rape.

11. Taking note of the above circumstances as evident from the statement of the defacto complainant, I am of the view that the petitioner ought to be protected with an order of pre-arrest bail subject to conditions.

12. In Sushila Aggarwal v. State (NCT of Delhi) 2020 (5) SCC 1 , it was held that while considering whether to grant anticipatory bail or not, Courts ought to be generally guided by considerations such as the nature and gravity of the offences, the role attributed to the applicant, and the facts of the case. Grant of anticipatory bail is a matter of discretion and the kind of conditions to be imposed or not to be imposed are all dependent on facts of each case, and subject to the discretion of the court.

13. In Ashok Kumar v. Union Territory of Chandigarh , [2024 SCC OnLine SC 274] , it has be