High Court of Punjab and Haryana

The Punjab and Haryana High Court has held that the prohibition on granting anticipatory bail under Section 482 of the Bharatiya Nagarik Suraksha Sanhita (BNSS) in certain cases of rape of minors is not absolute.

Section 482 BNSS prohibits the grant of bail to a person accused under Section 65 and Section 70(2) of the Bharatiya Nyaya Sanhita, 2023 (BNS). Section 65 BNS relates to rape of females below 12 years of age. Section 70(2) BNS criminalises gang rape of minors.

Judge Sumeet Goel said, “an application for grant of interim release/pre-arrest bail; under Section 438 of Cr.PC for offences under Sections 376(3)/376AB/376DA/376DB of IPC and under Section 482 of BNSS, 2023 for offences under Section 65(2)/70(2) of BNS, 2023; is admissible.”

However, the court further stated: “Such an application can be granted only if the judicial examination of the facts of the case so shows; insofar as it concerns allegations relating to offences under Sections 376(3)/376AB/376DA/376DB of the IPC or Sections 65(2)/70(2) of the BNS, 2023; “There is no prima facie case” or “The case is prima facie false” or “The case is well founded” or if “the non-granting of such application would result in a miscarriage of justice or an abuse of the process of law.””

It is neither reasonable nor pragmatic to establish exhaustive or final parameters as to what would serve as a touchstone for determining these aspects in a particular case, since each case has its own particular factual situation, the judge added.

These observations were made in response to the application for interim release under Section 482 of the BNSS, 2023 in FIR No. 203 dated 13th July, 2024 under Sections 64(2)(M), 65(1), 74, 75(2), 76, 78, 351(3) of the BNSS, 2023 and Section 6 of the POCSO Act.

According to the FIR, a 15-year-old girl from Class 9 was raped multiple times by a man who threatened the alleged victim not to disclose the incident.

The counsel for the plaintiff (accused) argued that the plaintiff was falsely implicated in the FIR. He had actually saved the victim from the other boys who were teasing her on the way.

The prosecutor argued that the application could not be maintained because “the provision for granting interim bail in a case involving offences as alleged in the FIR in question is barred by the statutory provision contained in Section 482(4) of the BNSS, 2023.”

He stated that the applicant was accused of sexual abuse of a child and that questioning the applicant in custody was necessary for an effective investigation of the case.

After hearing the submissions, the Court examined the following questions: “whether an application for interim release under Section 438 of Cr.PC, 1973 for offences under Section 376(3)/Section 376-AB/Section 376-DA/Section 376-DB of IPC, 1860 and under Section 482 of BNSS, 2023 for offences under Section 65(2)/Section 70(2) of BNSS, 2023 is admissible.”

Justice Goel emphasised that the provisions of Sections 376(3), 376AB, 376DA and 376DB of the IPC and Section 438(4) of the Cr.PC, 1973 have been brought into the statute book by the Criminal Laws Amendment Act, 2018 and are similar to the provisions of Sections 65(2)/70(2) of the BNSS, 2023 and Section 482 of the BNSS, 2023.

“What emerges from these legal provisions is the legislator's intention that children are the future of humanity. Even though they are born in individual families, society, nation and public have a collective responsibility to provide a safe, joyful and healthy environment for the overall development of children, in which they can grow and thrive. Sexual abuse of a child is a highly reprehensible crime against a child, a family, indeed against humanity as a whole.said the judge.

In our culture, it is a “grave moral reprehensibleness” to look at a girl with “lascivious curiosity”

Justice Goel explained, “In our culture, where a girl is treated with reverence, to look at her with lascivious curiosity is an act of grave moral turpitude. Sexual harassment, on the other hand, is the most depraved, depraved and repulsive act and must be condemned and punished accordingly.”

“When a young girl is physically abused, she is actually an innocent child who probably does not even fully understand what is being done to her. It is unimaginable the pain and suffering she must endure as a result of this horrific experience,” the judge added.

The exclusion of bail undermines human freedom

The Court also stated: “The exclusion of access to bail (including provisional release) as a remedy undoubtedly constitutes an interference with human liberty.”

“The personal liberty that is taken away by denial of bail is too precious for our legal system to value. We recognize that the ultimate power to revoke that liberty represents a great trust that can be exercised not casually but judicially, with great consideration given to the cost to the individual and the community,” the report said.

Word of warning

The court held that provisional release under Section 482 of the BNSS, 2023 for offences under Section 65(2)/70(2) of the BNS, 2023 can be maintained, but added: “Provided the applicant can show that there is no prima facie case.”

“This court must immediately sound a word of caution here. If the court deems it appropriate to grant such an application for interim bail, the court must find cogent reasons for doing so showing that the facts of the case have been considered with due and evident judicial diligence,” the court added.

In the present case, the court said, “It would be unwise and incomprehensible to believe at this stage the mere allegation of the plaintiff that he has falsely incriminated the incident by introducing a caste angle into the story. This is a suggestion that the police or the victim's parents have falsely incriminated the plaintiff in order to save the alleged real perpetrators from a higher caste.”

In addition, there is no solid basis to support the plaintiff's claim that he was falsely charged due to a financial dispute, it said.

Justice Goel noted that the plaintiff is accused of assaulting a girl of about 15 years of age and therefore held that “interrogation of the plaintiff in custody is necessary for effective investigation and to establish the truth.”

Consequently, the appeal was rejected.

Mr. Ankur Malik, counsel for the applicant.

Ms. Mahima Yashpal, DAG, Haryana.

Quote: 2024 LiveLaw (PH) 230

Title: XXX v. XXX [CRM-M-36185-2024]