Anticipatory bail possible in rape cases: Punjab and Haryana HC sets conditions

The Punjab and Haryana High Court has made it clear that anticipatory bail is maintainable and can be granted to an accused in cases alleging rape or gang-rape on women under 16 and 12.

The ruling by Justice Sumeet Goel comes with a rider – the applicant is required to show that the case, as alleged, is not prima facie made out against him, or where the complainant/prosecution’s case is prima facie false, motivated or mala fide.

Justice Goel also made it clear that relief can be given in a situation where non-granting of anticipatory bail would amount to miscarriage of justice or abuse of the process of law.

“There is no gainsaying that no exhaustive guidelines can possibly be laid down to govern such judicial discretion as every case, especially a criminal case, has its own factual conspectus,” the Bench ruled.

Justice Goel, at the same time, sounded a word of caution. The court was required to accord cogent reasons in case it deemed it appropriate to grant anticipatory bail, showing due and manifest application of judicial mind to the facts of the matter.

For reaching the conclusion, Justice Goel referred to matters where the statute barred anticipatory bail. The Bench observed the Supreme Court, dealing with the Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, held anticipatory bail to be maintainable where the applicant was able to show prima facie that case under the Act was not made out or where non-granting of relief would result in miscarriage of justice or abuse of process of law.

The Supreme Court noted competent court could consider granting bail in matters under Muslim Women (Protection of Rights on Divorce) Act, even if the statute barred the same, if prima facie case was not made out.

Justice Goel asserted Sections 376(3), 376AB, 376DA and 376DB of IPC and Section 438(4) of CrPC, dealing with such matters, were brought in the statute book by way of criminal law (amendment) Bill, 2018.  The provisions of Section 65(2)/Section 70(2) of BNS and Section 482 of BNSS had a similar effect.

The legislature’s intent evident from the statutory provisions was the children were humanity’s future. They were born to individual families, yet the society, nation and public had collective responsibility towards creating a safe, joyful and salubrious environment for their overall development. Sexual violation was most reprehensible crime against a child, family and entire humanity.

Justice Goel asserted: “In our culture where a girl-child is held in reverence, merely looking at her with prurient curiosity is an act of grave moral turpitude.  Whereas sexual violation is the most degenerate, deviant and repugnant act & it must be condemned and punished accordingly. Where a young girl-child is subjected to physical violation; she is actually a mere innocent child, who probably does not even fully understand what she has been subjected to.

 'Unimaginable pain'

"It is unimaginable what pain and suffering a girl-child will live through because of this horrific experience.  At a tender age; when her world should have been all things insouciant; a springtime to revel in the delights of childhood, she has been robbed of her innocence.  As has been aptly said- “safety and security don’t just happen. They are result of collective consensus and public investment.  The children are owed, the most vulnerable citizens in our society, a life free of violence and fear.  Therefore, punitive measures must be such which act as forcible, definitive and effective deterrence," said Justice Sumeet Goel.