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.

JUDGMENT :

W. DIENGDOH, J.

1. Heard Mr. S.A. Sheikh, learned counsel for the petitioner who has submitted that the petitioner herein apprehending arrest in connection with Tura Women P.S. Case No. 36 (5) 2023 under Section 376DA/120B IPC read with Section 5(g)/6 of the POCSO Act, 2012 has approached this Court with an application under Section 438 Cr.P.C with a prayer for grant of pre-arrest bail on behalf of the petitioner.

2. The learned counsel has submitted that the said Tura Women P.S. Case was registered on the basis of an FIR filed on 27.05.2023 before the In-charge Jangkipara Outpost, West Garo Hills District.

3. The complainant who is the father of a minor girl aged about 15 years has alleged that on 26.05.2023 at about 2:00 pm, his minor daughter, while collecting firewood from a nearby jungle was accosted by the three accused persons named in the said FIR, who has committed the act of rape on the said minor.

4. In course of investigation, the name of the petitioner herein has also figured, inasmuch as, it was alleged that she along with her son had lured the said minor girl to the jungle and had also arranged that the three accused persons be present at the place of occurrence to commit the said offence. Accordingly, the police are on the look out to arrest the petitioner in connection with the said case. Hence, this application.

5. Before proceeding further, the learned counsel, on a query by this Court has submitted that though, there is a clear provision in the Code of Criminal Procedure, 1973, wherein under Sub-Section 4 of Section 438 Cr.P.C, it is clearly provided that prayer for grant of pre-arrest bail by any person accused of having committed an offence, inter alia, under Section 376DA shall not be entertained. This in effect, would mean that this application cannot be considered on the said provision being attracted. However, the learned counsel has referred to a case reported in 2023 SCC OnLine Ker 8345, wherein the Hon’ble High Court of Kerela in Bail Appl. No. 144 of 2023 and Bail Appl. No. 2157 of 2023, vide order dated 20.09.2023 has discussed at length the applicability of this section. Paras 1, 18, 19, 20, 24 and 25 of the judgment which are relevant are quoted herein below:

“1. 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 application.

18. A conjoint reading of Sections 438(4), 60A and 41 of Cr.P.C. and Section 26 of IPC would reveal that the bar under subsection (4) of Section 438 of Cr.P.C. 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. In other words, in cases where no prima facie materials exist warranting the arrest of the accused, the bar under sub-section (4) of Section 438 would not attract, and the court has the power to direct a pre-arrest bail. There cannot be any mandate under the law to arrest an innocent.

19. Certain special statutes have excluded the operation of Section 438 of the Cr.P.C for the accusation of offences punishable under those special statutes, for example, Section 18 of the Scheduled Castes and Schedule Tribes (Prevention of Atrocities) Act, 1989 (for short, SC/ST Act), Section 43D(4) of the Unlawful Atrocities Prevention Act, 1967 (for short, UAP Act) and Section 20(7) of the Terrorist and Disruptive Activities (Prevention) Act, 1987 (TADA). The wording in the above provisions is identical to that of sub-section (4) of Section 438 of Cr.P.C. Interpreting those provisions, the Apex Court, as well as this Court, has held that the bar created by those provisions for the operation of Section 438 would not apply when no prima facie case is made out for applicability