Court can grant pre-arrest bail if no materials connect the applicant with the alleged crime, provided conditions to protect investigation.

O R D E R

This application is filed under Section 482 of the Bharatiya Nagarik Suraksha Sanhita , 2023 (for short, BNSS ), seeking pre-arrest bail.

2. The applicant is the accused in Crime No.1/2026 of Kasaragod Vanitha Police Station, Kasaragod District. The offences alleged are punishable under Sections 376(2)(n) and 506 of the Indian Penal Code , 1860.

3. The prosecution case, in short, is that the applicant had committed penetrative sexual assault on the survivor, a resident of Kidoor in Kidoor Village, during 1995 in the room near ASBS School, Ichilampady, and in 2023 from June to October, in a lodge at Bekal, situated on the upstairs of KVR show room, also threatened to kill her and family and thereby committed the offences.

4. I have heard Sri.S.Rajeev, the learned counsel for the applicant, Smt.Sruthy N. Bhat, the learned counsel for the additional respondent No.3 and Sri.M.C.Ashi, the learned Senior Public Prosecutor. Perused the case diary.

5. The learned counsel for the applicant submitted that the applicant is innocent and has been falsely implicated in the above crime. The counsel further submitted that no materials are on record to connect the applicant with the alleged crime; hence, he is entitled to bail. The learned Senior Public Prosecutor, on the other hand, submitted that the alleged incident occurred as part of the applicant's intentional criminal acts, and if he is released on bail at this stage, it will affect the course of the investigation.

6. The applicant is aged 55 years and the victim is aged 48 years. A reading of the FI Statement shows that the victim and the applicant met each other in the year 1995 and they were in a relationship. According to the victim, the first instance of sexual act took place in the year 1996 while she was 19 years old. Admittedly, it was consensual. According to her, the applicant promised to marry her and she gave consent. Thereafter, the victim married in the year 1997 and two children were born in the said wedlock. The applicant also married and children were born in the said wedlock. The victim divorced her first husband in the year 2007 and she contracted a second marriage in the year 2017. According to the victim, the subsequent instances of sexual relationship between her and the applicant took place in the year 2023. A reading of the FI Statement shows that those were also consensual in nature. It appears that she had sexual relationship with the applicant while she was married and the marriage was subsisting. The sequence of events narrated in the FI Statement would show that right from the year 1995 till 2023 even prior to her marriage and thereafter, the victim was in physical relationship with the applicant and they had consensual sexual intercourse several times. Considering all these aspects, I feel that this is a fit case where pre-arrest bail can be granted to the applicant. 7. The victim had also stated in her FI Statement that the applicant had videographed her nude videos on his mobile phone and he has threatened that he would circulate the same through social media and YouTube. The learned counsel for the victim submitted that the mobile phone used by the applicant for recording the nude videos of the victim has to be recovered and examined, and for the said purpose, the custodial interrogation of the applicant is necessary.

8. In Sushila Aggarwal and Others v. State (NCT of Delhi) and Another, [(2020) 5 SCC 1] , it was held by the Supreme Court that “limited custody” or “deemed custody” would be sufficient in appropriate cases to facilitate the requirements of the investigating authority, including for fulfilling the provisions of Section 27 of the Evidence Act. Therefore, the applicant can be directed to produce h