A statutory restriction on granting pre-arrest bail to individuals accused of raping minors is not an absolute prohibition, the Bombay high court said on Wednesday, leaving open a narrow legal avenue for judicial review in cases lacking initial evidence.
In support of his submissions, the lawyer relied upon Supreme Court’s interpretations on similar restrictions imposed by the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, the Terrorist and Disruptive Activities (Prevention) Act, 1987 and the Unlawful Activities (Prevention) Act, 1967, in which the top court ruled that the restrictions didnt completely exclude jurisdiction of the court, if no prima facie case was made out. They pointed out that the section was originally added to the Criminal Procedure Code by way of an amendment in 2018 to give enhanced protection to minors, responding to brutal incidents of rape and gang rape of young girls. They had approached the high court after district courts rejected their anticipatory bail applications in view of the bar imposed by the BNSS provision. The government lawyer and the lawyer appointed by the court for the survivors strenuously opposed the pleas, contending that the section’s wording was clear and required strict construction. The court accepted the arguments advanced on behalf of the accused persons in view of the Supreme Court’s interpretation of similar statutory restrictions.
The high court said whether such a case was made out or not would depend on the facts and circumstances of each case, but the court was not expected to indulge in critical analysis of the material on record, thus leaving a “very small window” for the accused persons to claim anticipatory bail, the bench said. “If, on examining the facts, the ingredients of the alleged offence are found to be satisfied, then the application for anticipatory bail would not be maintainable,” the court said on a separate pre-arrest bail pleas by two labourers accused of raping minors.
