Bombay High Court says ban on pre-arrest bail in minor rape cases is not absolute

Court Ruling

The Bombay High Court stated on Wednesday that the statutory restriction on granting pre-arrest bail to individuals accused of raping minors is not an absolute prohibition. Justice MM Nerlikar noted that Section 482(4) of the Bharatiya Nagrik Suraksha Sanhita does not completely bar anticipatory bail for those accused of raping girls under 16 years of age or gang-raping a minor.

Legal Standard

The prohibition applies only when a prima facie case is established for offences under Section 65 or Section 70(2) of the Bharatiya Nyaya Sanhita. Whether such a case exists depends on individual facts, though the court noted it should not deeply analyse the evidence, leaving a very small window for accused persons to seek pre-arrest bail. District courts had earlier rejected the bail pleas of two labourers due to the BNSS bar.

Arguments and Context

Advocate DJ Sharma argued that the bar cannot be absolute, citing Supreme Court interpretations of similar laws like the SC/ST Act, TADA, and UAPA where restrictions did not exclude court jurisdiction if no initial case was made. Government and survivor lawyers opposed this, noting the rule stems from a 2018 criminal procedure amendment meant to protect minors. Justice Nerlikar cautioned courts against expanding this scope on merits, which would defeat the law's intent.

Context

Anticipatory bail allows a person to seek release from custody before an arrest is made in connection with a cognizable offence. Courts examine initial case details to decide if police custody is genuinely necessary or if a legal safeguard is required against potential misuse.