1. The application is filed under Section 482 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (‘BNSS’, for short), for an order of pre-arrest bail.

2. The petitioner is the third accused in Crime No.827 of 2024 of the Changaramkulam Police Station, Malappuram, which is registered against three accused persons for allegedly committing the offences punishable under Sections 450, 376- D, 376(2) (n) and 506 of the Indian Penal Code and Sec.67 of the Information Technology Act.

3. The prosecution allegation, in brief, is that: the accused 1 and 2, who were the trustees of a Foundation where the victim was employed as a Dance Teacher, had committed sexual assault on her by touching on her body during 2018 to 2020. The third accused had recorded nude videos of the victim while she was changing her clothes for her dance programme. Thereafter, the accused 1 and 2 threatened the victim to give her consent to have sexual intercourse with them. Consequently, on 27.1.2021, at around 14:00 hours, the accused committed sexual assault on the victim by touching on her genitals; she then fled away from the place. At that time, the accused 1 and 2 showed her nude videos and threatened that they would uplaod the videos on social media. Thus, the accused have committed the above offences.

4. Heard; Sri.V.A Johnson Varikkappallil, the learned counsel for the petitioner and Smt.Seetha S, the learned Public Prosecutor.

5. The learned counsel for the petitioner submitted that the petitioner is totally innocent of the accusations levelled against her. A reading of the First Information Report as well as the First Information Statement would clearly establish that the specific overt act of committing the offence under Sec.376 of the IPC is attributed against the accused 1 and 2. The allegation against the petitioner is that she took nude videos of the victim while she was changing her clothes. By no stretch of imagination can the offence under Sec.67 of the Information Technology Act be attributed against the petitioner. The present crime is a frivolous litigation filed to arm-twist the petitioner. In fact, the petitioner had arranged a loan from the ICICI Bank for the parents and brother of the victim, where she is employed. The petitioner stood as a guarantor for the loan taken by the parents and brother of the victim, and they had executed Annexure-2 promissory note in favour of the petitioner. Subsequently, the petitioner issued Annexure-3 demand notice to the parents and brother of the victim to repay the money. They also issued Annexure-4 reply notice, assuring to pay the loan amount to the petitioner. Subsequently, the petitioner filed CS No.244/2023 before the High Court of Madras and the same is pending consideration. Now, as a counterblast to the above proceedings, the victim has filed the present complaint against the petitioner. Even though the alleged incident occurred between 2018 and 2020, the FIR has been registered only in the year 2024, which by itself proves the falsity of the crime. The petitioner is a lady. The petitioner’s custodial interrogation is not necessary and no recovery is to be effected. Hence, the application may be allowed.

6. The learned Public Prosecutor seriously opposed the application. She submitted that the investigation in the case is in progress. She also stated that if the petitioner is granted an order of pre-arrest bail, there is every likelihood of her influencing the witnesses and tampering with the evidence. There is specific overt act alleged against the petitioner in the FI statement. Hence, the application may be dismissed.

7. On an evaluation of the materials on record, it can be seen that the victim’s parents and brother had executed Annexure-2 promissory note in favour of the petitioner as early as on 8.6.2018 promising to pay her Rs.70/- Lakh. Subsequently, the petitioner issued Annexure-3 demand notice demanding for the amount, which the victim’s parents agreed to pay in 60 days as per Annexure-4 reply. It is on record that the petitioner has instituted a suit before the High Court of Madras. It is subsequent to all these transactions that the victim has given Annexure-1 FI statement on 7.6.2024, alleging that the accused 1 and 2 committed rape on her and the petitioner recorded her nude videos while she was changing her clothes for a dance programme. The above factual background shows that the parties were known to each other for quite some time at least from 2018 onwards, that is the date on which Annexure-2 promissory note was executed. There is no specific reason given by the victim for the inordinate delay in filing the complaint. However, that is a matter to be investigated and ultimately decided at the time of trial.

8. The Hon'ble Supreme Court in Bhadres Bipinbhai Sheth vs State of Gujarat and another [2015 KHC 4579] has succinctly culled out the principles to grany orders of pre-arrest bail in cases involving family disputes It is apposite to extract the relevant portions of the judgment, which reads thus:

"23. The principles which can be culled out, for the purposes of the instant case, can be stated as under: (i) The complaint filed against the accused needs to be thoroughly examined, including the aspect whether the complainant has filed a false or frivolous complaint on earlier occasion. The Court should also examine the fact whether there is any family dispute between the accused and the complainant and the complainant must be clearly told that if the complaint is found to be false or frivolous, then strict action will be taken against him in accordance with law. If the connivance between the complainant and the Investigating Officer is established then action be taken against the investigating officer in accordance with law. (ii) The gravity of charge and the exact role of the accused must be properly comprehended. Before arrest, the arresting officer must record the valid reasons which have led to the arrest of the accused in the case diary. In exceptional cases, the reasons could be recorded immediately after the arrest, so that while dealing with the bail application, the remarks and observations of the arresting officer can also be properly evaluated by the Court. (iii) It is imperative for the Courts to carefully and with meticulous precision evaluate the facts of the case. The discretion to grant bail must be exercised on the basis of the available material and the facts of the particular case. In cases where the Court is of the considered view that the accused has joined the investigation and he is fully cooperating with the investigating agency and is not likely to abscond, in that event, custodial interrogation should be avoided. A great ignominy, humiliation and disgrace is attached to arrest. Arrest leads to many serious consequences not only for the accused but for the entire family and at times for the entire community. Most people do not make any distinction between arrest at a pre conviction stage or post - conviction stage. (iv) There is no justification for reading into S.438 CrPC the limitations mentioned in S.437 CrPC. The plentitude of S.438 must be given its full play. There is no requirement that the accused must make out a "special case" for the exercise of the power to grant anticipatory bail. This virtually, reduces the salutary power conferred by S.438 CrPC to a dead letter. A person seeking anticipatory bail is still a free man entitled to the presumption of innocence. He is willing to submit to restraints and conditions on his freedom, by the acceptance of conditions which the Court may deem fit to impose, in consideration of the assurance that if arrested, he shall be enlarged on bail."

9. On an anxious consideration of the facts, the rival submissions made across the Bar and the materials placed on record, particularly on comprehending the fact that there is a civil litigation pending between the parties, Annexure-1 FI statement has been given nearly after six years after Annexure3 demand notice and nearly four years after the last date of the alleged incident, that the petitioner is a lady and the main allegation of committing the offence under Sec.376-D and 376(2) (n) of the IPC is attributed against the accused 1 and 2, I am satisfied that the petitioner has made out valid grounds to invoke the discretionary jurisdiction of this Court under Sec.482 of the BNSS. Hence, I am inclined to allow the application, but subject to the condition that the petitioner cooperates with the Investigating Officer.

10. In the result, the application is allowed subject to the following conditions:

i) The petitioner is directed to surrender before the Investigating Officer within 10 days from today.

ii) In the event of the petitioner's arrest, the Investigating Officer shall release the petitioner on bail on her executing a bond for Rs.50,000/- (Rupees fifty thousand only) with two solvent sureties for the like amount each;

iii) The petitioner shall appear before the Investigating Officer for interrogation, as and when directed by the Investigating Officer.

iv) The petitioner shall not directly or indirectly make any inducement, threat or procure to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the court or to any Police Officer or tamper with the evidence in any manner, whatsoever;

v) The petitioner shall surrender her passport before the jurisdictional court concerned within a period of one week from the date of her release on bail. If she has no passport, she shall file an affidavit to the effect before said court within the said period;

vi) The petitioner shall not get involved in any other offence while on bail;

vii) In case of violation of any of the conditions mentioned above, the jurisdictional court shall be empowered to consider the application for cancellation of bail, if any filed, and pass orders on the same, in accordance with law.

viii) Applications for deletion/modification of the ball conditions shall also be filed before the court below.

ix) Needless to mention, it would be well within the powers of the Investigating Officer to investigate the matter and, if necessary, to effect recoveries on the information, if any, given by the petitioner even while the petitioner is on bail as laid down by the Hon'ble Supreme Court in Sushila Aggarwal v. State (NCT of Delhi) And another [2020 (1) KHC 663).

x) The observations made in this order are only for the purpose of considering the application and the same shall not be construed as an expression on the merits of the case to be decided by competent Courts.