Pre-Arrest Bail Plea Though Barred For Offence U/S 376(3) IPC May Be Considered If Material Does Not Prima Facie Attract Offence: Kerala High Court

The Kerala High Court recently dismissed the anticipatory bail application filed by a father accused of sexually abusing his minor daughter.

A single bench of Justice Ziyad Rahman observed that as per Section 438 (4) of the Criminal Procedure Code, there is a specific bar against entertaining an application for anticipatory bail where offences Section 376(3) or section 376AB or section 376DA or section 376DB of the Indian Penal Code are alleged. However, the Court may entertain an application for anticipatory bail if the materials placed before the Court does not attract the specific offences under Section 376 IPC:

“As per Sub Section 4 of Section 438 of Cr.P.C., the prohibition in entertaining an application in this regard would come into play when there is an accusation against the accused for having been involved in the offences referred to therein. Therefore, what is relevant is the accusation made against the petitioner. In this case, the allegations constituting the offence under Section 376(3) of IPC can be found in the form of various statements made by the victim before the learned Magistrate. The aforesaid accusations would make out a prima facie case. Thus bar contemplated under Sub Section 4 of Section 438 would come into play.”

The Court was considering the anticipatory bail application by a father accused of sexually abusing his minor daughter. He was facing prosecution for offences under Sections 376(2)(f), 376(3) of IPC and also under Section 3(b) read with Section 4(2), Section 9(1)(n) read with Section 10 of POCSO Act, 2012.

The allegation was that the father trespassed into the house, kissed the minor’s lips with sexual intention. In another instance, it was also alleged that, the accused touched the private parts of the minor.

Adv. M R Sarin appearing for the Petitioner father argued the allegations against him are false and that it was a result of certain matrimonial disputes pending between him and the mother who was the complainant in this case. It was also contended that in Xxxx v. State of Kerala [2023 (2) KHC 339], the Court had observed that courts need to have a cautious approach in dealing with sexual assault allegations committed on children by their fathers when serious matrimonial disputes are pending between spouses.

Public Prosecutor Seetha S appearing for the State argued that an application for anticipatory bail would not be maintainable as per subsection 4 of Section 438 of the Cr.P.C, if the offence alleged is under Section 376(3) of the IPC.

The Court agreed to the contention of the public prosecutor and observed that there is a specific bar in entertaining an application for anticipatory bail under Section 438 if the offences under Section 376 IPC are involved.

“Of course, in appropriate cases, it may be possible for this Court to entertain an application under Section 438 Cr.P.C., if the materials produced before the Court would not attract the offences mentioned therein,” the Court observed. Hence the Court considered the application on merits as well.

The Court concluded that the material on record made out a prima facie case against the accused and hence his application for anticipatory bail was dismissed.

“I considered the contention of the petitioner on merits as well. When going through the victim's statement in this regard, several instances of sexual assault are seen made. In the statement given by the victim under Section 164 Cr.P.C., also, she reiterated the aforesaid allegations, even though it is not as elaborate as mentioned in the FIS. In addition to the same, going by the report of the expert panel, it is discernible that, before the said expert panel also, a detailed description of the sexual assaults committed by the petitioner on various instances were clearly mentioned,” the Court observed.

The Court noted that the Petitioner was free to seek regular bail after surrendering.

Case Title: XXX V State of Kerala

Citation: 2023 LiveLaw (Ker) 273

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