The Kerala High Court in its order dated June 22 granted pre-arrest bail to Malayalam actor-producer Vijay Babu in an alleged rape case. The bail was granted subject to certain conditions.
Case:
According to the complainant, actor-producer Vijay Babu ‘gained her trust by being friendly and advising her’ when she was a newcomer in the industry. She alleged that later he sexually exploited her under the guise of being a ‘saviour’ to her when it came to personal and professional issues.
On April 22, an FIR was thereby registered against Vijay Babu with the Ernakulam police.
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Babu’s Side
Petitioner Vijay Babu, on the other hand, denied the allegation of rape as wholly false and pleaded that the accusation was only a machination of the victim who was upset on getting information that another actress was decided to be cast as a heroine, by the Director of that movie, in a new movie project proposed to be produced by the petitioner.
The woman even expressed her ire at the new heroine in front of many people, on April 18. It was also pleaded that evidence of the nature of relationship between the petitioner and the respondent is available in plenty, on the mobile phones through WhatsApp messages and Instagram chats and other documents. It was alleged that, by quirky conduct, a consensual relationship was projected as rape.
Babu’s Facebook Live
Trying to put out his side of the matter, the actor hosted a Facebook Live and denied all allegations against him. However, during this live streaming, he revealed the survivor’s name which led to further backlash.
Subsequently, another case was registered under IPC Section 228A (disclosure of the identity of the victim in certain offences) against the actor for revealing her identity on a public platform.
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Babu Moves For Bail
Arguing strongly against how a woman can name and shame anyone, Vijay Babu in his bail application alleged that the complainant woman was merely trying to blackmail him by filing this false case. He added that while the woman may be free to raise allegations against anyone, but the statutory authorities are duty-bound to ascertain the truthfulness of the allegation before tarnishing or defaming an individual based on a complaint which could not be substantiated.
Apprehending arrest in a non-bailable offence, Vijay Babu approached the Kerala High Court seeking pre-arrest bail under section 438 of the Code of Criminal Procedure, 1973, (for short the Cr.P.C).
Alleged Victim Opposes Bail
Learned counsel appearing on behalf of the alleged victim argued that petitioner had misused and abused the trust reposed on him by her and that even during her menstrual periods, ignoring her repeated objections, forced himself upon her.
As a novice artist, her objections were easily subdued and she could not prevent the repeated intrusions into her bodily autonomy and was subjected to repeated sexual assaults. The learned counsel also submitted that the victim had approached the police within eight days of the last assault, which itself shows the veracity of her allegations and hence, this was not a fit case for the grant of pre-arrest bail.
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Kerala High Court
Justice Bechu Kurian Thomas considered the merits of this bail application and observed that it is essential to advert to the preliminary objection raised by the respondents on the maintainability of this bail application. Justice Thomas remarked,
When the application was filed, petitioner was not in the country. It was alleged that petitioner fled from India after coming to know of the registration of the crime.
Noticing the intention of the petitioner to subject himself to the jurisdiction of this Court, an interim order was issued ‘not to arrest the petitioner’. On that basis, petitioner returned and is presently in Kerala.
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The anticipatory bail plea was allowed noting the following 12 circumstances gathered from the arguments made by the parties and the materials produced:
- The survivor was aware that the petitioner was a married man and that he is continuing in the marriage for the sake of his child
- Petitioner being involved in a subsisting marriage, there was no possibility of a legal marriage with the survivor at present
- During the period from 16-03-2022 till 14-04-2022, the survivor was not under any form of confinement
- The petitioner and the survivor have been communicating with each other through WhatsApp and Instagram consistently and in plenty
- The available messages (from 31-03-2022 to 17-04-2022) between the petitioner and the survivor prima facie convey an intense relationship between them
- While the petitioner deleted the messages from 16-03-2022 till 30-03-2022 from his phones, the survivor also deleted all messages between them, for the entire period in question
- Mobile communications between the petitioner and survivor at least from 31-03-2022 till 17-04-2022 do not refer to any instances of sexual assault
- Petitioner has already been questioned for 38 hours and he has handed over to the investigating officer, his two mobile phones, allegedly used by him during the period
- The mobile phones of the petitioner as well as the survivor have been sent for examination to the forensic science laboratory and it is informed that even the deleted WhatsApp and Instagram messages/chats can be retrieved
- Petitioner did not include the survivor in a proposed new movie and another actress has been chosen as a heroine, which came to the knowledge of the survivor after 15-04-2022 and she shouted at the petitioner on 17-04-2022
- Petitioner’s wife had filed a case against him in 2018 alleging inter-alia, domestic violence and promiscuous behaviour, however, the complaint was withdrawn within a few weeks
- Petitioner’s passport has already been impounded and hence he cannot flee from the country
The High Court added,
The nuances of ‘consent’ under the Indian Penal Code or of ‘rape’ are not to be deliberated upon at this stage, lest it prejudices either side, at the time of trial. In this phase of legal proceedings, this Court is only to consider the competing claims of liberty of an individual guaranteed under Article 21 of the Constitution of India as against the power of investigation of the police against a person accused of a serious crime.
For granting this pre-arrest bail, it was ruled that when a bonafide apprehension exists, the CrPC confers power on such a person to seek protection from arrest. Further, in the absence of any restrictive clauses in Section 438, restricting the right of a person residing outside the country from filing an application for pre-arrest bail, the court cannot read into the provision such a restriction that the legislature did not incorporate. The Judge added,
While considering an application for bail, Court must take care not to enter into a meticulous examination of the materials collected or comment on the same. Courts must also avoid scrutinising feminine conduct from a masculine point of view. Myths, stereotyping and even generalisation, which are all different forms of bias, must be avoided.
The Kerala High Court affirmed,
Notwithstanding the above, care must be taken to avoid consensual relationships being converted into instances of rape.
Amidst others, the High Court laid down the below conditions before granting pre-arrest bail:
- The petitioner shall surrender before the Investigating Officer on 27-06-2022 at 09.00 AM for interrogation
- The petitioner can be interrogated for the next seven days i.e; from 27-06-2022 till 03-07-2022 (inclusive) from 09.00 AM till 06.00 PM every day, if required. The petitioner shall be deemed to be under custody during the aforesaid period for facilitating the requirements of investigation
- If the Investigating Officer intends to arrest the petitioner, then he shall be released on bail on the petitioner executing a bond for Rs.5,00,000/- (Rupees Five Lakhs only) with two solvent sureties each for the like sum before the Investigating Officer
Malayalam Producer-Actor #VijayBabu Arrested In Alleged Rape Case; To Be Released On Bail
— Voice For Men India (@voiceformenind) June 27, 2022
▪️Read Full Order What Kerala HC Said While Granting Pre-Arrest Bail Last Week#VoiceForMen #SpeakUpMen #MenToo https://t.co/BwI7KzsVUr
WATCH:
Vijay Babu Pre-Arrest Bail Granted By Kerala HC | Discussion With Activist Mithun Vijay Kumar
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