The Kerala High Court recently rejected the anticipatory bail plea of a father who was accused of sexually abusing his minor daughter.
Justice Ziyad Rahman, presiding over a single bench, pointed out that according to Section 438 (4) of the Criminal Procedure Code, there is a specific prohibition on entertaining an application for anticipatory bail when the accused is alleged to have committed offenses under Section 376(3), Section 376AB, Section 376DA, or Section 376DB of the Indian Penal Code. However, the Court may consider an application for anticipatory bail if the evidence presented does not support the specific offenses 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 plea of a father accused of sexually abusing his minor daughter. He was facing charges under Sections 376(2)(f), 376(3) of the IPC, as well as Section 3(b) read with Section 4(2), Section 9(1)(n) read with Section 10 of the POCSO Act, 2012.
The allegation against the father was that he trespassed into the house and kissed the minor’s lips with a sexual intent. It was also claimed that the accused touched the minor’s private parts on another occasion.
Advocate M R Sarin, representing the petitioner father, argued that the allegations were false and stemmed from ongoing marital disputes between him and the mother, who was the complainant in the case. It was further contended that in the case of Xxxx v. State of Kerala [2023 (2) KHC 339], the Court had cautioned against dealing with allegations of sexual assault committed by fathers against their children when serious matrimonial disputes were pending.
Public Prosecutor Seetha S, appearing for the State, argued that an application for anticipatory bail would not be valid under subsection 4 of Section 438 of the Cr.P.C. if the offense alleged falls under Section 376(3) of the IPC.
The Court agreed with the public prosecutor’s argument and acknowledged that there is a specific prohibition on entertaining an anticipatory bail application under Section 438 if the offenses 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 noted. Consequently, the Court examined the application on its merits as well.
After reviewing the material on record, the Court determined that a prima facie case had been established against the accused, leading to the dismissal of his anticipatory bail application.
“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 stated that the petitioner was free to seek regular bail by surrendering himself.
