The Kerala High Court’s grant of pre-arrest bail in a rape case under the Bharatiya Nyaya Sanhita, 2023, marks a significant recalibration of how courts assess credibility in sexual offence allegations where the victim’s prior conduct undermines the prosecution’s narrative. The judgment underscores that gravity of offence alone cannot override the presumption of innocence, particularly when the factual matrix suggests consensual cohabitation.
Background & Facts
The Dispute
The petitioner, Nishad B, is accused of abducting and raping a married woman under Sections 87, 64(1), 64(2)(m), 115(2), and 351(1) of the Bharatiya Nyaya Sanhita, 2023. The prosecution alleges that on 9 December 2025, the petitioner abducted the complainant from a bus stand, detained her in a lodge, and raped her the next day by making a false promise to marry her.
Procedural History
- 9 December 2025: Alleged incident occurred in Thrissur District
- 10 December 2025: Crime No. 960/2025 registered at Wadakkanchery Police Station
- 22 January 2026: Sessions Court rejected anticipatory bail application
- 10 February 2026: Bail application filed under Section 482 of the Bharatiya Nagarik Suraksha Sanhita, 2023 before the High Court
Relief Sought
The petitioner sought pre-arrest bail, arguing that the allegations were fabricated, no corroborative evidence existed, and custodial interrogation was unnecessary given his clean record and willingness to cooperate.
The Legal Issue
The central question was whether pre-arrest bail can be granted under Section 482 of the BNSS when the alleged offence is serious, but the First Information Statement reveals that the victim voluntarily lived with the accused and admitted to consensual sexual relations.
Arguments Presented
For the Petitioner
The petitioner’s counsel contended that the FIR lacked credible corroboration and that the victim’s own statement to police - admitting she voluntarily left home and resided with the petitioner - undermined the claim of non-consensual intercourse. Reliance was placed on Arnesh Kumar v. State of Bihar to argue that arrest is not automatic even in grave offences, and that custodial interrogation is not mandatory where the accused has no criminal antecedents and is cooperative.
For the Respondent
The State, through the Senior Public Prosecutor, argued that the nature of the offence - rape under false promise of marriage - demanded strict scrutiny and that release on bail might jeopardize the investigation. The prosecution emphasized the seriousness of the charges under the Bharatiya Nyaya Sanhita and the need to preserve evidence and prevent witness tampering.
The Court's Analysis
The Court undertook a meticulous review of the First Information Statement and found that the victim’s own account contradicted the prosecution’s narrative. She admitted to voluntarily leaving her home, residing with the petitioner at multiple locations, and engaging in sexual intercourse without coercion. The Court observed that the claim of forced sex was "improbable" in light of these admissions.
"A reading of the FIS would show that the victim voluntarily left home and resided at different places with the applicant and had sexual intercourse. Even though the allegation is that the sexual intercourse was without her consent, the story of forced sex appears to be improbable."
The Court further noted that the petitioner had no prior criminal record, was a married man with children, and had no history of violence. It held that custodial interrogation was unnecessary to secure evidence or prevent tampering, especially where the accused was willing to appear before investigators regularly. The Court distinguished this case from those involving stranger rape or violent abduction, emphasizing that consent and context must inform judicial assessment even in statutory rape cases.
The Court also reaffirmed that Section 482 BNSS empowers the High Court to prevent abuse of process and ensure justice, particularly where the allegations are internally inconsistent or lack evidentiary foundation.
The Verdict
The petitioner won. The Court held that pre-arrest bail is permissible under Section 482 of the BNSS when the prosecution’s case is undermined by the victim’s own admissions and custodial interrogation serves no investigative purpose. The applicant was granted bail subject to seven specific conditions.
What This Means For Similar Cases
Consent and Credibility Are Central to Rape Allegations
- Practitioners must scrutinize the victim’s prior conduct and statements for inconsistencies with the allegation of non-consent
- Courts will not accept blanket assumptions of non-consent where the victim admits to voluntary cohabitation and sexual relations
- Defence counsel should prioritize obtaining and highlighting FIS inconsistencies early in proceedings
Custodial Interrogation Is Not Automatic
- The burden is on the State to justify why custodial interrogation is necessary in cases involving married individuals with no criminal history
- Courts may reject arrest requests where the accused is cooperative and willing to appear for questioning
- Pre-arrest bail applications should explicitly argue that investigation can proceed without detention
Judicial Scrutiny of FIRs Is Mandatory
- Judges must conduct a preliminary credibility assessment of the FIR, not merely accept allegations at face value
- Where the complainant’s own account contradicts the charge sheet, courts have discretion to grant bail even in serious offences
- This judgment reinforces that Section 482 BNSS is a tool to prevent misuse of criminal process, not merely a procedural safeguard
