Criminal justice system has to strike balance between punishing the guilty and protecting innocent: Kerala HC

Kochi, Sept 21 (IANS) The Kerala High Court observed that the criminal justice system has to strike a balance between punishing the guilty and protecting the innocent, as it considered two anticipatory bail applications filed by two men, accused by their estranged wives of raping their minor daughters.

Both the accused contended that there were false case by their wives to deny the husbands custody of their children.

After going through the pleas, the court dismissed the anticipatory bail plea by one of the accused on finding that a prima facie case had been made out against him.

In the second case, the police informed that the case was slated to be closed as no evidence was found against the accused to support the allegations and hence he will not be arrested.

However, the court before coming to the above ruling in these cases held that Section 438 (4) of the Code of Criminal Procedure (CrPC) does not create an "absolute" bar on granting pre-arrest or anticipatory bail to persons accused of raping minors, particularly when no prima facie case found against the accused.

Section 438 (4) CrPC effectively says anticipatory bail cannot be granted in "any case involving the arrest of any person" accused of child rape, which is punishable under Sections 376 (3), 376-AB, 376-DA and Section 376-DB of the Indian Penal Code (IPC).

The court, then, pointed out that many child rape cases are "patently false" and are lodged only to frame innocent persons.

"If the exclusion of the provision for prearrest bail embodied in Section 438(4) of CrPC is treated as absolute, there will be no protection available to innocent persons against whom false and motivated accusations are made. Protecting the innocent is equally important, like convicting the guilty,” the court noted.

It agreed that rape or gang rape of minors is grievous and that excluding the provision of pre-arrest bail in genuine cases is absolutely justified. However, the court further observed that the criminal justice system needs to strike a balance between punishing the guilty and protecting the innocent.

"Thus, the exclusion clause cannot, by any reasonable interpretation, be treated as applicable when no case is made out or allegations are patently false or motivated. Limiting the exclusion to genuine cases is essential to protect the fundamental right of life and liberty guaranteed under Article 21 of the Constitution of India," it added.