Kerala nun rape case: No legal impediment in arresting Bishop Franco Mulakkal

Nature and gravity of the accusation are very important factors to decide whether the accused is entitled to get the discretionary relief of pre-arrest bail.

Published: 19th September 2018 02:16 AM  |   Last Updated: 19th September 2018 04:27 AM   |  A+A-

A child at the venue of the nuns’ protest demanding the arrest of Bishop Franco Mulakkal, at High Court Junction in Kochi on Tuesday | A Sanesh

Express News Service

KOCHI: There is no legal impediment in arresting Bishop Franco Mulakkal as the Kerala High Court has not passed an interim order directing the police not to arrest him. At the same time, the police can desist from arresting him till the court takes a final call on the bail plea. Meanwhile, sources with the probe team stated the accused will be arrested if they can collect all the required evidence during the interrogation.

The investigating agency had stated there were contradictions in the statements of witnesses and this could be cross-checked through the questioning of the bishop. Former director general of prosecution T Asaf Ali told Express the court has every power to grant interim anticipatory bail or staying arrest. 

“The absence of such an order at this stage is very significant. After interrogation if the police find it is a fit case for arrest, they can arrest the accused,” he said. A fool-proof investigation is possible only if the powerful accused of this stature is arrested at the earliest opportunity.  

Asaf Ali added in rape cases, custodial interrogation of the accused is very essential for medical examination, including potency test and recovery. Normally anticipatory bail will not be granted in those cases where the custodial interrogation is necessary. 

Nature and gravity of the accusation are very important factors to decide whether the accused is entitled to get the discretionary relief of pre-arrest bail. The necessity of granting anticipatory bail arises mainly because sometimes an influential person may implicate their rivals in false cases for the purpose of disgracing them or for other purposes by getting them detained in jail for some days. In the nun’s case, the accused is a powerful person and not the victim. 

The petitioner must make out a special case for the exercise of the power to grant anticipatory bail which was totally absent in the instant case. The discretion under Section 438 cannot be exercised with regard to offences punishable with death or imprisonment for life unless the court at that very stage is satisfied that such a charge appears to be false or groundless. Mere general allegations of mala fides in the petition are inadequate. There is no reason to disbelieve the version of the victim, said Asaf Ali.


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