The State Government on Wednesday filed a special leave petition before the Supreme Court against the Kerala High Court order granting anticipatory bail to actor-producer Vijay Babu in a rape case filed by an actor.
In its petition, the government submitted that while granting the anticipatory bail, the High Court had considered irrelevant facts and rejected relevant materials and circumstances.
The petition said the conduct of the accused in fleeing justice was a relevant factor while considering anticipatory bail applications. However, the High Court had granted the actor anticipatory bail in total disregard to his conduct. In fact, he had immediately after the registration of the FIR fled the country to the UAE to avoid prosecution.
The petition also pointed out that an anticipatory bail application filed under Section 438 Cr PC by a person remaining in a foreign country was not maintainable. He was not available within the jurisdiction of the court at the time of filing the bail application. However, the High Court erroneously held that Section 438 did not contain a restrictive mandate that a person residing outside the country could not file an application for anticipatory bail.
The High Court also proceeded on the erroneous assumption that an incident of rape could happen only when the victim was under confinement. The court erred in emphasising the consistent communication between the accused and the survivor as a circumstance for granting bail. In fact, court ought to have appreciated that the consistent communication did not mean that the alleged sexual act was with the consent of the survivor, the petition said.
The High Court had failed to appreciate that even during the intense relationship, forceful sexual intercourse was treated as rape and in the instant case, the specific case of the survivor was that the accused raped her repeatedly over a period of time without her consent. The court was not justified in relying on the fact that mobile communications between the accused and the survivor did not refer to any instances of sexual assault. Besides, the facts of the case warrant custodial interrogation of the accused, the government submitted.
