12 Circumstances That Persuaded Kerala High Court To Grant Pre-Arrest Bail To Vijay Babu In Rape Case
The Kerala High Court on Wednesday granted pre-arrest bail subject to conditions to Malayalam actor-producer Vijay Babu's plea in the case where an actress accused him of sexually exploiting herJustice Bechu Kurian Thomas allowed the anticipatory bail plea upon noting the following 12 circumstances gathered from the arguments made by the parties and the materials produced. (1) The survivor...
The Kerala High Court on Wednesday granted pre-arrest bail subject to conditions to Malayalam actor-producer Vijay Babu's plea in the case where an actress accused him of sexually exploiting her
Justice Bechu Kurian Thomas allowed the anticipatory bail plea upon noting the following 12 circumstances gathered from the arguments made by the parties and the materials produced.
(1) The survivor was aware that the petitioner was a married man and that he is continuing in the marriage for the sake of his child.
(2) Petitioner being involved in a subsisting marriage, there was no possibility of a legal marriage with the survivor at present.
(3) During the period from 16-03-2022 till 14-04-2022, the survivor was not under any form of confinement.
(4) The petitioner and the survivor have been communicating with each other through WhatsApp and Instagram consistently and in plenty.
(5) The available messages (from 31-03-2022 to 17-04-2022) between the petitioner and the survivor prima facie convey an intense relationship between them.
(6) While the petitioner deleted the messages from 16-03-2022 till 30-03-2022 from his phones, the survivor also deleted all messages between them, for the entire period in question.
(7) Mobile communications between the petitioner and survivor atleast from 31-03-2022 till 17-04-2022 do not refer to any instances of sexual assault.
(8) Petitioner has already been questioned for 38 hours and he has handed over to the investigating officer, his two mobile phones, allegedly used by him during the period.
(9) The mobile phones of the petitioner as well as the survivor have been sent for examination to the forensic science laboratory and it is informed that even the deleted WhatsApp and Instagram messages/chats can be retrieved.
(10) Petitioner did not include the survivor in a proposed new movie and another actress has been chosen as a heroine, which came to the knowledge of the survivor after 15-04-2022 and she shouted at the petitioner on 17-04-2022.
(11) Petitioner's wife had filed a case against him in 2018 alleging inter-alia, domestic violence and promiscuous behaviour, however, the complaint was withdrawn within a few weeks.
(12) Petitioner's passport has already been impounded and hence he cannot flee from the country.
Notably, the Court also stated that it refrained from engaging in a detailed examination of the materials collected by the investigation since this was a plea for anticipatory bail.
"The nuances of 'consent' under the Indian Penal Code or of 'rape' are not to be deliberated upon at this stage, lest it prejudices either side, at the time of trial. In this phase of legal proceedings, this Court is only to consider the competing claims of liberty of an individual guaranteed under Article 21 of the Constitution of India as against the power of investigation of the police against a person accused of a serious crime."
Justice Thomas also confirmed the maintainability of the application for pre-arrest bail filed while the applicant is residing outside the country. since the issue arises quite often.
"Section 438 Cr.P.C does not contain a restrictive mandate that a person residing outside the country cannot file an application for anticipatory bail. It is possible that a person can apprehend arrest even outside the country for an offence that occurred in India. With the advancement in investigative technology and communication, the various agencies of investigation could even be deployed to arrest a person outside the country. An apprehension of arrest can arise even while the applicant is residing outside the country."
Therefore it was ruled that when a bonafide apprehension exists, the CrPC confers power on such a person to seek protection from arrest. Further, in the absence of any restrictive clauses in Section 438, restricting the right of a person residing outside the country from filing an application for pre-arrest bail, the court cannot read into the provision such a restriction that the legislature did not incorporate.
"While considering an application for bail, Court must take care not to enter into a meticulous examination of the materials collected or comment on the same. Courts must also avoid scrutinizing feminine conduct from a masculine point of view. Myths, stereotyping and even generalisation, which are all different forms of bias, must be avoided," the Judge added.
"Notwithstanding the above, care must be taken to avoid consensual relationships being converted into instances of rape", the Court further said.
Case Title: Vijay Babu v. State of Kerala & Anr.
Citation: 2022 LiveLaw (Ker) 292