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High Court Lays Down The Conditions For A Case To Fall Under Section 438 (4) Of The Code Of Criminal Procedure

diya dhall ,
  23 September 2023       Share Bookmark

Court :
High Court of Kerala
Brief :

Citation :
Bail Appl. No. 2157 Of 2023

Case title:

K.K. Dheerendrakrishnan & ors.  V. State of Kerela & ors.

Date of Order:

20th September, 2023

Bench:

Hon'ble Justice Dr. Kauser Edappagath

Parties:

Petitioner: K.K. Dheerendrakrishnan & ors.

Respondent: State of Kerela & ors.

SUBJECT

The court ruled that where it was obvious to the court that the allegations are demonstrably false or motivated and no prima facie evidence exists warranting the arrest of the accused, Section 438(4) of the Cr.P.C.'s prohibition on pre-arrest bail is not to be interpreted as absolute.

IMPORTANT PROVISIONS

Section 438 (4) of the Code of Criminal Procedure- Direction for grant of bail to person apprehending arrest

Section 376- AB of the Indian Penal Code- Punishment for rape

OVERVIEW

  • The petitioners are accused of penetratingly assaulting their own minor daughters. In response to the victim's mother's complaint, the offenses were reported.
  • The claims are categorically denied by the petitioners. They claim that a fabricated case has been brought against them at the urging of their spouses to deny the minor victim's custody, a matter they are currently contesting in family court.

ISSUES RAISED

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?

ARGUMENTS ADVANCED BY THE APPELLANT

  • The learned counsel for the applicants argued that the applicants had been wrongfully accused of the crimes that were allegedly committed against them and that they were innocent of those offenses.
  • The attorney further argued that because there is no evidence linking the applicants to the alleged crime, they should be granted pre-arrest bail.

ARGUMENTS ADVANCED BY THE RESPONDENT

  • A custodial interrogation of the applicant is required for the inquiry, according to the learned Senior Public Prosecutor for the complainant, who said that the case shows that the accusation made against the applicant therein is very serious in nature and that it shows him to have plotted a criminal act.
  • Furthermore, it was argued that Section 438 (4) of the Criminal Procedure Code expressly forbids the use of the pre-arrest bail provision in cases in which a person is detained after being accused of violating Sections 376 (3), 376-AB, 376-DA, or 376-DB of the Indian Penal Code.
  • Since Section 376-AB of the IPC is also alleged to have been violated in both cases, the requests for pre-arrest bail are therefore not maintainable.

JUDGEMENT ANALYSIS

  • The court ruled that where it was obvious to the court that the allegations are demonstrably false or motivated and no prima facie evidence exists warranting the arrest of the accused, Section 438(4) of the Cr.P.C.'s prohibition on pre-arrest bail is not to be interpreted as absolute.
  • Only when a prima facie case of an offense is established does the exclusion clause apply. The relevant Court may have to decide this depending on the specifics of each case.
  • The investigating officer provided a report with the assertion that no evidence was found to support the claim made against the applicant during the investigation.
  • The factual report was already submitted to higher authorities for approval to file the case as a factual error, it is further claimed.
  • On direction, the experienced Senior Public Prosecutor asserts that the petitioner won't be detained.

CONCLUSION

Pre-arrest bail, also known as anticipatory bail, is sometimes granted by the court when a person has been detained by the police and the judge determines that there is no justification for that person to be held in custody and that his detention is likely to have caused him irreparable harm to his dignity, honor, or reputation. Anticipatory Bail comes under the Criminal Procedure Code’s Section 438(1). This section was included in the Criminal Procedure Code (CrPC) after the Law Commission of India recommended its incorporation. It is wise to note that a person can only apply for anticipatory bail if the offence is non-bailable in nature.

 

 
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