The Kerala High Court has ruled that Section 438(4) of the Code of Criminal Procedure (CrPC) does not completely prohibit the granting of anticipatory bail to individuals accused of raping minors, especially when there is no clear evidence of wrongdoing against the accused.

Section 438(4) of the CrPC essentially stipulates that anticipatory bail cannot be granted in “any instance” where the arrest of an individual is related to allegations of child rape, punishable under Sections 376(3), 376-AB, 376-DA, and Section 376-DB of the Indian Penal Code (IPC). However, the court observed that the language used in Section 438(4) suggests that the restriction on granting anticipatory bail applies only when there is credible information against the accused or when a preliminary case has been established that warrants their arrest.

Justice Kauser Edappagath provided additional rationale, stating that many child rape cases are evidently untrue and are filed with the intent to wrongly implicate innocent individuals. The court clarified that if there is an unconditional prohibition on granting pre-arrest bail under Section 438(4), innocent individuals facing false and malicious accusations would have no recourse to protect themselves.

The High Court was reviewing two applications for anticipatory bail, both involving allegations made by estranged wives against their husbands, accusing them of raping their minor daughters. Both accused individuals claimed that these cases were fabricated by their wives to prevent them from gaining custody of their children.

After a thorough examination of the merits of these applications, the Court denied anticipatory bail to one of the accused because a preliminary case seemed to have been established against him. In the second case, the police reported that they were planning to close the case as no evidence was found to support the allegations against the accused. The police also mentioned that they had filed a report to seek authorization to classify the case as a 'mistake of fact,' and that the accused would not be arrested. Given this information, the Court decided to close the plea in the second case.

The court acknowledged that cases of rape or gang rape involving minors are extremely serious, and there is a valid justification for excluding the provision of pre-arrest bail in genuine cases. However, the court also emphasized the importance of the criminal justice system striking a balance between punishing those who are guilty and safeguarding the rights of those who are innocent.