Facts of the Case

The petitioner, who is the sole accused in Crime sought pre-arrest bail under Section 482 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS). The accusations against the petitioner include offenses under Sections 376(2)(n), 354A(1)(i), and 354A(1)(ii) of the Bharatiya Nyaya Sanhita, 2023, which relate to rape and sexual harassment.

The prosecution’s case is that the survivor, an actress and a legally separated mother of two children, worked as a receptionist at a resort owned by the accused in 2017. Following a conflict with the accused’s son, she left the job and moved to Dubai. In 2018, the accused contacted her with an offer for a film role and a job at his resort, prompting her return. During her employment, the accused allegedly raped her twice in 2018 and once again in 2019 at his residence in Aluva.

Due to her vulnerable position—being separated from her husband and living with her mother—the survivor did not disclose the incidents. She eventually remarried in 2023 and confided in her new husband, who encouraged her to report the crimes. The FIR was registered on 2nd September 2024, nearly five years after the last alleged incident.

Contentions of the Petitioner

The petitioner’s counsel argued that the petitioner is innocent, and the allegations are false and frivolous, pointing to the five-year delay in filing the FIR as evidence of the complaint’s lack of credibility.

The petitioner relied on the precedent set by the Hon’ble Supreme Court in Siddique v. State of Kerala [2024 KHC OnLine 6641], which held that an inordinate delay in lodging an FIR can be grounds for granting pre-arrest bail. It was contended that the communications between the petitioner and the survivor establish a consensual relationship and negate the offense of rape under Section 376(2)(n). The petitioner expressed willingness to comply with any stringent conditions imposed by the court and assured full cooperation with the investigation.

Contentions of the Respondent (Prosecution)

The Special Public Prosecutor opposed the bail application, asserting that there are sufficient incriminating materials to substantiate the petitioner’s involvement in the crime.

The prosecution argued that granting pre-arrest bail would hamper the investigation, as the petitioner might intimidate the survivor and tamper with evidence. It was also contended that the survivor’s delay in filing the FIR was reasonable, given her vulnerable circumstances, and should not be considered a ground for bail.

Court’s Observations

The court acknowledged the inordinate delay in registering the FIR but noted that the survivor explained it by citing her personal circumstances and lack of support until her remarriage. While the explanation was not entirely convincing, the court emphasized that it is a matter for trial.

The court referred to Siddique v. State of Kerala, where the Hon’ble Supreme Court granted bail considering a significant delay in filing the complaint and other mitigating factors. The court observed that, prima facie, the relationship between the petitioner and the survivor appeared to be consensual, and at this stage, custodial interrogation of the petitioner was deemed unnecessary.

Court’s Order

The court allowed the bail application, subject to conditions. It ordered the petitioner to surrender before the Investigating Officer within ten days. And stated that Investigating Officer retains the authority to continue the investigation and conduct recoveries if necessary, even while the petitioner is out on bail, as per the principles laid down in Sushila Aggarwal v. State (NCT of Delhi) [2020 (1) KHC 663].

The court clarified that the observations made in the bail order are limited to the bail application and should not influence the merits of the case during trial. The court thus granted pre-arrest bail, balancing the petitioner’s rights with the need for an effective investigation.