The Kerala High Court held that the exclusion of pre-arrest bail provision by Section 438(4) of Cr.P.C. in respect of the offences mentioned therein is not to be read as absolute, where it was discernible to the court that the allegations are patently false or motivated and no prima facie materials exist warranting the arrest of the accused. The important question in these bail applications was whether sub-section (4) of Section 438 of the Code of Criminal Procedure imposes an absolute bar on granting pre-arrest bail to an accused involved in the offence of rape of a minor girl.

A Bench of Justice Kauser Edappagath held that, “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.”

In both cases, the applicants were accused of committing offenses punishable under Section 376-AB of the Indian Penal Code (IPC) and have sought pre-arrest bail under Section 438 of the Cr.P.C. The allegations in both cases were almost identical, involving penetrative sexual assault on their own minor daughters. These crimes were reported by the victims' mothers, while the applicants vehemently deny the accusations. They argued that their wives have falsely accused them in order to gain an advantage in a custody battle over the minor victims at the Family Court.

Senior Advocate Raman Pillai, Advocate Shibin K.F. appeared for the Petitioners and Senior Advocate C.S. Hrithwik and Advocate P.Vijayabhanu appeared for the Respondents.

The counsel for the applicants argued that the applicants were innocent and falsely implicated in the cases, and therefore, they are entitled to pre-arrest bail. On the other hand, the Senior Public Prosecutor and Senior Counsel for the complainant contended that the accusations were serious, requiring custodial interrogation, and that sub-section (4) of Section 438 of the Cr.P.C. excludes the provision for pre-arrest bail in cases involving specific offenses under the IPC, including Section 376-AB.

The Court first discussed the maintainability of bail applications under Section 438(4) of the Criminal Procedure Code (Cr.P.C.). Section 438 of the Cr.P.C. deals with granting bail to individuals anticipating arrest, and the Court examined the 2018 amendment to Section 438(4), which restricts the application of pre-arrest bail in cases related to certain sexual offenses under the Indian Penal Code (IPC).

The Court emphasized that the provision in Section 438(4) does not impose an absolute ban on granting pre-arrest bail for offenses listed therein. It explained that the restriction applies only when the arrest is justified based on credible information and when there is a reason to believe that the accused has committed the offense. The Court cited relevant sections of the Cr.P.C. and IPC to support this interpretation.

Furthermore, the Court highlighted the importance of "reason to believe" in Section 41 of the Cr.P.C. and clarified that it should be read in conjunction with Section 26 of the IPC. The Court explained that "reason to believe" is a higher standard than mere suspicion or doubt.

The Court also referred to various Supreme Court judgments that emphasized the need for a valid purpose when making an arrest, stating that arrest should be the last option and should be restricted to exceptional cases.

The Court noted that the Law Commission had criticized arbitrary arrests by the police and highlighted the importance of preventing misuse of law.

Regarding the arrest process, the Court explained that an arrest can be made only if there is credible information and a reason to believe that the accused has committed a cognizable offense. The Court added, “Thus, the arrest could be effected only if there was ‘credible information’ and the police officer had ‘reason to believe’ that the offence had been committed and that such arrest was necessary.” It also noted that a person can be detained for a maximum of 24 hours under Section 167 of the Cr.P.C., and the magistrate must be satisfied that the arrest was legal and in accordance with the law.

The Court emphasized the importance of balancing the protection of the innocent with the punishment of the guilty and highlighted the need for a case-by-case assessment of whether pre-arrest bail should be granted in situations involving sexual offenses. The Court remarked, “The criminal justice system needs to strike a balance between punishing the guilty and protecting the innocent. Thus, the exclusion clause cannot, by any reasonable interpretation, be treated as applicable when no case is made out or allegations are patently false or motivated. Limiting the exclusion to genuine cases is essential to protect the fundamental right of life and liberty guaranteed under Article 21 of the Constitution of India.”

The Court thus held, “The exclusion clause applies only when a prima facie case of commission of offences is made out. This may have to be determined by the Court concerned in the facts and circumstances of each case.”

The Court then discussed specific cases before it. In first case it considered a serious accusation of sexual assault against a minor and found that the allegations were supported by statements from the victim, medical records, and expert evaluations. The Court ruled that, in this case, a prima facie case existed, justifying the exclusion of pre-arrest bail under Section 438(4) of the Cr.P.C. It also considered the need for custodial interrogation and denied bail.

In second case the Court noted that the investigating officer had submitted a report stating that there was no evidence to support the allegations. Additionally, the senior public prosecutor confirmed that the applicant would not be arrested. As a result, the Court dismissed one bail application and closed the other.

Cause Title: X v. State of Kerala & Ors., [2023:KER:55877]

Click here to read/download Order