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IN THE HIGH COURT OF KERALA AT ERNAKULAM
KAUSER EDAPPAGATH, J.
XXXX XXXX - Petitioner
Versus
State Of Kerala, Represented By Public Prosecutor, High Court Of Kerala and Ors. – Respondents
Bail Appl. No. 144 of 2023, Bail Appl. No. 2157 Of 2023
Decided On : 20-09-2023
Based on the provided legal document, the following key points can be summarized:
The Court examined whether subsection (4) of Section 438 of the Criminal Procedure Code (Cr.P.C.) creates an absolute bar to granting pre-arrest bail in cases involving serious offences such as rape of a minor. The Court clarified that this subsection is not an absolute prohibition, but rather a restriction that applies when credible evidence suggests involvement in the offence [paras 1-23].
The Court emphasized that the exclusion clause under Section 438(4) applies only when there is a prima facie case with credible evidence. If no prima facie case exists, or if the allegations are patently false or motivated, the bar does not apply, and courts retain the power to grant pre-arrest bail [paras 22-23] (!) (!) .
The Court highlighted that the law presumes innocence until proven guilty and that the right to personal liberty is protected under the Constitution. Therefore, pre-arrest bail should be granted liberally, especially when there are no sufficient grounds for arrest or when the allegations are false or motivated [paras 20-21] (!) (!) .
In the specific cases discussed, the Court found that the allegations of sexual assault against the applicants were supported by substantial evidence, including medical and psychological evaluations, making a prima facie case for the offences. Consequently, the Court held that the exclusion of pre-arrest bail under Section 438(4) was applicable, and thus, the bail applications were rightly dismissed or closed [paras 25-29] (!) (!) .
The Court also noted that the procedural safeguards for arrest require credible information and a reasonable belief that the accused committed the offence. Arrests must be based on credible evidence and must serve a valid purpose, with the law emphasizing that innocent persons should not be arbitrarily detained [paras 9-17].
The Court reaffirmed that certain special statutes explicitly exclude the operation of Section 438(4), but even in such cases, if no prima facie case is established, courts may still consider bail [paras 17-19].
Overall, the Court reinforced that the law aims to balance the need to punish serious offences with protecting the rights of innocent persons, and that each case must be considered on its individual merits, especially regarding the existence of prima facie evidence [paras 22-23] (!) (!) .
In conclusion, the Court clarified that the exclusion of pre-arrest bail under Section 438(4) is not absolute and depends on the presence of credible evidence and prima facie case. When such evidence is lacking or allegations are false or motivated, courts have the discretion to grant bail, safeguarding individual rights while ensuring justice.
| Table of Content |
|---|
| 1. question of law regarding pre-arrest bail exclusion (Para 1 , 2) |
| 2. identical allegations made in both cases (Para 3) |
| 3. acknowledgement of counsel during proceedings (Para 4 , 7) |
| 4. arguments about innocence and necessity of arrest (Para 5 , 6) |
| 5. interpretation of section 438 (4) of cr.p.c. (Para 8 , 9) |
| 6. defining 'reason to believe' and its implications (Para 10 , 11) |
| 7. guidelines on arrest powers of police (Para 12 , 13) |
| 8. critique of arbitrary police arrest powers (Para 14 , 15) |
| 9. conditions for applying the exclusion bar under section 438 (Para 16 , 17) |
| 10. interpretation of special statutes excluding pre-arrest bail (Para 18 , 19) |
| 11. constitutional basis for pre-arrest bail rights (Para 20 , 21) |
| 12. balance between protecting innocents and prosecuting the guilty (Para 22) |
| 13. conclusion on the non-absoluteness of exclusion clause (Para 23) |
| 14. merit-based consideration of each bail application (Para 24) |
| 15. serious allegations faced by the applicant (Para 25) |
| 16. evaluation of psychological evidence in allegations (Para 26) |
| 17. summation of evidence leading to application closure (Para 28) |
| 18. final ruling on bail applications (Para 29) |
ORDER :
KAUSER EDAPPAGATH, J.
Does sub-section (4) of Section 4 38 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 376- AB 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 4 38 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 sub- section (3) of Section 3 76 or Section 3 76-AB or Section 3 76-DA or Section 3 76-DB of IPC and inasmuch as the offences alleged in both cases include Section 3 76-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 a
Exclusion of pre-arrest bail in Section 438(4) is not absolute; courts can grant bail if no prima facie case of assault is established.
The exclusion of anticipatory bail under Section 438(4) is not absolute; it applies only when a prima facie case exists and does not prevent bail in cases of patently false allegations.
Section 438 of Cr.P.C. provides for issuing directions for granting bail to a person apprehending arrest.
The exclusion of pre-arrest bail under Section 438(4) Cr.P.C. is not absolute; it does not apply when no prima facie case is made against the accused.
Exclusion of anticipatory bail under Section 438 of the Criminal Procedure Code is absolute for offences under the Unlawful Activities (Prevention) Act, necessitating prima facie evidence for conside....
A juvenile can file for anticipatory bail under Section 438 of the Cr.P.C. before actual apprehension, as the absence of 'arrest' in the Juvenile Justice Act does not negate this right.
Liberty of a juvenile is the supreme factor, and he or she cannot be deprived of the liberty merely because there is no remedy seeking protection against his or her pre-arrest available under the Act
Accused who has axe to grind against the applicant is likely to name him as an accused to falsely impleade him in the offence has not been denied in any manner either before the Sessions Court or bef....
The main legal point established in the judgment is the interpretation of section 3(2)(v) of the SCST Act and the application of section 18 and 18-A of the SCST Act in determining the maintainability....
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