When FIS Reveals Subsequent Consensual Relationship, Custodial Interrogation Not Necessary: Kerala High Court Grants Pre-Arrest Bail in Rape & Intimate Video Circulation Case

In a significant order balancing the gravity of allegations with the necessity of custodial interrogation, the Kerala High Court granted pre-arrest bail to an accused facing charges of rape, sexual assault, criminal intimidation and circulation of intimate images. Justice Dr. Kauser Edappagath held that custodial interrogation was not warranted at this stage, particularly in view of the materials on record and the conduct of the parties.

The application was filed under Section 482 of the Bharatiya Nagarik Suraksha Sanhita, 2023, seeking anticipatory bail for offences under Sections 64, 74 and 87 of the Bharatiya Nyaya Sanhita, 2023 and Section 66E of the Information Technology Act, 2000. The Court allowed the plea subject to stringent conditions safeguarding the prosecution’s interests.

Background of the Case

The applicant was the sole accused in the crime registered by Ayiroor Police Station, Thiruvananthapuram. The prosecution case alleged that the defacto complainant, who was a close friend of the applicant’s wife, joined the applicant’s health club in October 2023. The applicant allegedly informed relatives that he intended to marry the complainant, worsening his marital relationship.

It was alleged that on 20.03.2024, the applicant took the complainant from her college to a house near Kadakkal Government Hospital and committed sexual intercourse forcibly. A woman missing case had been registered by the complainant’s relatives, and she was subsequently produced before the Magistrate, after which the missing case was closed on 21.03.2024.

The prosecution further alleged that on multiple occasions the applicant contacted the complainant via BOTIM and asked her to pose naked, recorded those videos, and later, in September 2025, sent such videos to her fiancé, Amal, after allegedly damaging her scooter and apprehending her. Screenshots of WhatsApp and BOTIM messages were placed on record as annexures.

Legal Issues and Submissions Before the Court

The core issue before the Court was whether custodial interrogation was necessary in a case involving serious allegations under the BNS and the Information Technology Act, including rape and electronic transmission of private images.

The learned counsel for the applicant argued that the allegations were false and that there were no materials justifying custodial detention. It was highlighted that the victim had earlier stated before the Magistrate in the missing case that she had accompanied the applicant voluntarily. It was also contended that the applicant had no criminal antecedents and had already produced the mobile phone allegedly used for recording and sharing the videos before the Investigating Officer as directed by the Court.

The learned Senior Public Prosecutor opposed the plea, contending that the allegations disclosed intentional criminal acts and that granting anticipatory bail could hamper the investigation.

Court’s Observations on Consent, Prior Statement and Digital Evidence

After perusing the FIS and case diary, the Court noted that the applicant was the husband of the victim’s close friend and that their relationship intensified after she joined his gym. The Court recorded that “a reading of the FIS would show they went together and had sexual intercourse more than twice.” It also noted that the victim was aware that the applicant was a married man.

Significantly, the Court observed that although the victim alleged that the first sexual intercourse was forceful, Annexure-2 revealed that after the incident, in connection with the missing complaint, she had stated before the Magistrate that she had gone with the applicant voluntarily. The Court further noted that even thereafter, the parties continued their physical relationship.

On the allegation of recording and sharing nude videos, the Court recorded that the applicant had produced the mobile phone before the Investigating Officer as instructed. In this factual backdrop, the Court concluded:

“In these circumstances, I am of the view that further custodial interrogation of the applicant is not necessary.”

The absence of criminal antecedents was also taken into consideration while granting relief.

Custodial Interrogation and Anticipatory Bail – A Calibrated Approach

The judgment underscores the principle that even in serious offences, the necessity of custodial interrogation must be independently assessed. The Court found that the investigation could proceed without custodial detention, particularly when the primary electronic device had already been handed over and cooperation was assured.

The order reflects a careful balancing of the gravity of allegations involving Sections 64, 74 and 87 of the BNS and Section 66E of the IT Act with the constitutional protection against unnecessary arrest.

Stringent Conditions to Safeguard Investigation

While granting pre-arrest bail, the Court imposed detailed conditions to ensure the integrity of the investigation. The applicant was directed to execute a bond of Rs.1,00,000 with two solvent sureties. He was mandated to fully cooperate with the investigation, including submitting to deemed police custody for discovery if required.

He was further directed to appear before the Investigating Officer every Saturday between 10:00 a.m. and 11:00 a.m. until further orders and as and when required. The Court restrained him from contacting prosecution witnesses or tampering with evidence, prohibited him from committing similar offences, and restricted him from leaving the State of Kerala without the trial court’s permission. Liberty was granted to seek modification or cancellation of bail before the jurisdictional court in case of violation.

The Kerala High Court’s ruling reiterates that anticipatory bail jurisprudence hinges not merely on the nature of allegations but on the necessity of custodial interrogation and the materials on record. By emphasizing the prior voluntary statement before the Magistrate, the subsequent relationship, production of the mobile phone, and absence of antecedents, the Court found that continued liberty with strict safeguards would adequately protect the prosecution’s interest.

The decision is a notable addition to evolving jurisprudence under the Bharatiya Nyaya Sanhita, 2023 and Bharatiya Nagarik Suraksha Sanhita, 2023, particularly in cases involving allegations of sexual offences coupled with digital transmission of intimate content.

Date of Decision: 25/02/2026