Antipatory Bail in Indian Penal Code (IPC) : Section 376DB : Gangrape on a woman under sixteen years of age – in Punjab and Haryana High Court at Chandigarh

Understanding Section 376DB of the Indian Penal Code

Section 376DB of the Indian Penal Code (IPC) is a provision that deals with the punishment for the gang rape of a woman under twelve years of age. This particular section was introduced to address the heinous nature of such crimes and to provide a stringent punishment that would act as a deterrent. According to Section 376DB, where a woman under twelve years of age is gang-raped, each person who constitutes the gang shall be deemed to have committed the offense of rape and will be punished with rigorous imprisonment for life. This implies imprisonment till the remainder of an individual’s natural life and with a fine.

In order to protect young children and to combat the rise in sexual offenses against minors, Section 376DB specifies that the fine imposed must be just and reasonable to meet the medical expenses and rehabilitation of the victim. Furthermore, the section clarifies that these punishments shall not be less than twenty years of rigorous imprisonment but might extend to life imprisonment which means imprisonment for the rest of that person’s natural life.

What stands out in Section 376DB is the reflection of a shift in the legislative approach towards crimes involving minors. The provision does not provide any room for leniency, underscoring the country’s commitment to ensuring the harshest penalties for offenders involved in the gang rape of young girls. The goal is not merely to punish but also to send out a strong message that the law will deal with such offenders with an iron hand, and thus, hopefully act as a deterrent to reduce the incidence of these crimes in the future.

An intrinsic aspect of Section 376DB is the non-consideration of the death penalty. Although capital punishment is a part of the Indian penal system, it is not mandated under this particular section for the crime of gang rape of minors. This legislative choice indicates a preference for life imprisonment over the death penalty within the context of this specific crime.

This section also indirectly highlights the importance of the proper care and support that should be provided to the survivors of such trauma. The emphasis on a fine that is sufficient to cover the victim’s medical expenses and rehabilitation is an acknowledgment of the long-term impact of such crimes on the victim’s life and the necessity for comprehensive post-crime care.

It is also critical to note that under Section 376DB, the term ‘gang’ is legally defined, ensuring that there is no ambiguity in the application of this law. This section intersects with existing legal definitions and ensures consistency within the legal framework in dealing with collective criminal actions.

In essence, Section 376DB of the IPC is a testament to the evolving legal landscape in India and the country’s efforts to tackle crimes against women and children with the utmost gravity. By imposing rigorous imprisonment for life and fining the culprits, the law not only seeks to punish but also to assist victims in their journey of recovery, enforcing the state’s role in the protection of the most vulnerable sections of society.

The Concept and Provision of Anticipatory Bail

The legal mechanism of anticipatory bail is essentially a pre-emptive judicial remedy that individuals can seek when they apprehend arrest based on an accusation of having committed a non-bailable offense. Enshrined under Section 438 of the Code of Criminal Procedure, 1973 (CrPC), this provision allows a person to approach a High Court or a Sessions Court seeking bail in anticipation of an arrest on the accusation of having committed a certain crime.

Anticipatory bail is granted as a matter of discretion and is subject to the judiciary’s scrutiny regarding the nature and gravity of the alleged offense. The cardinal principle that underpins anticipatory bail is the belief in the presumption of innocence until proven guilty. It serves as a shield protecting individuals from the potential misuse of the law and wrongful detention.

When granting anticipatory bail, courts generally impose conditions that they deem necessary based on the facts and circumstances of the case. These conditions may include:

  • A requirement for the accused to make themselves available for interrogation by the police officer as and when required;
  • The provision that the person shall not, directly or indirectly, make any inducement, threat, or promise to any person acquainted with the facts of the case to dissuade them from disclosing such facts to the court or to the police officer;
  • A condition that the person shall not leave the country without prior permission from the court;
  • Stipulations that the person shall not tamper with the evidence or influence witnesses.

The rationale behind the imposition of such conditions is to mitigate the risk of flight, tampering of evidence, or coercion of witnesses by the accused while ensuring their availability for the investigation process. It is pertinent to note that the court may rescind the anticipatory bail granted at any point if any of these conditions are violated.

Although this bail can be granted at any time prior to arrest, it is important to remember that anticipatory bail is not a blanket protection against arrest. Rather, it safeguards the individual’s liberty, ensuring that in the event of an arrest, they will be released on bail.

While anticipatory bail can be sought for a range of offenses, it becomes a particularly contentious issue in heinous crimes like gang rape, where the inclination of the judiciary may lean towards a stricter administration of justice. The discretion exercised by the court in these cases often takes into consideration factors such as the severity of the crime, the role of the accused, the evidence against them, and the potential impact on society at large.

The application for anticipatory bail in such serious cases demands a high level of scrutiny, as the court must balance the individual’s right to liberty with the collective interest of public order and the administration of justice. The idea is to prevent misuse of the provision while ensuring that the police do not use their arrest powers arbitrarily to coerce or unnecessarily burden an accused individual.

The concept of anticipatory bail serves as an essential safeguard for personal liberty but operates within the confines of judicial discretion, taking into account the serious nature of the crime and the need to prevent the evasion of justice.

Recent Judgments in Punjab and Haryana High Court Regarding Anticipatory Bail in Gangrape Cases

Turning our focus to the recent judgments in the Punjab and Haryana High Court concerning anticipatory bail in gang rape cases, there have been significant developments that highlight the court’s stance on such serious matters. These judgments underscore the diligent approach the court adheres to when deliberating on the provision of anticipatory bail in cases of grievous offenses like gang rape, especially under the purview of Section 376DB of the IPC.

One notable aspect of the recent rulings is that the judiciary has exhibited a trend towards refusal of anticipatory bail in cases involving the gang rape of minors. This aligns with the stringent nature of the legislation which intends to ensure rigorous punishment for such offenders. The High Court often emphasizes that the grant of anticipatory bail in such scenarios would undermine the serious impact these crimes have on victims and society at large.

In these judgments, the High Court has reiterated several crucial considerations, including:

  • The severity and heinousness of the crime.
  • The need to have all accused available for interrogation by police, which is primordial for a thorough investigation.
  • The prime facie involvement of the accused and the evidence against them, which may point towards the likelihood of their involvement in the crime.
  • The potential influence the accused may have on witnesses if released on bail and the consequent risk to the course of justice.
  • The greater public interest and the confidence of the community at large in the criminal justice system.

The judicious application of anticipatory bail in gang rape cases also sends out a message on the seriousness with which the court regards such offenses. In judgments where anticipatory bail has been denied, the court often emphasizes the societal importance of not just punishing such crimes, but also preventing them by making it clear that there will be no shelter for alleged perpetrators even before a full trial.

Furthermore, the High Court’s rulings generally dwell on the consequences that granting anticipatory bail to accused persons in gang rape cases might have on the survivor as well. The trauma experienced by a rape survivor is profound, and knowing that the accused are not behind bars can induce further distress and affect the survivor’s willingness to cooperate with the legal proceedings.

However, it is important to acknowledge that the court also takes steps to ensure that the provision for anticipatory bail does not become an instrument of oppression or unfair arrest. The court’s approach in these matters exhibits a delicate balance, where the protection of victims and the societal need for a robust response to gang rapes are weighed against the rights of the accused.

The discussion on anticipatory bail in the context of gang rape cases within the Punjab and Haryana High Court jurisprudence is indeed a testament to the complex interplay between individual liberties and collective justice. While the principle of bail being the rule and jail the exception holds, the gravity of the offense in gang rape cases brings a nuanced and often restrictive application of this principle. It is evident that the court is deliberate and cautious, ensuring that decisions in these matters maintain the integrity of the criminal justice system and reflect the severity of the crime.


List of Most Recommended Lawyers:


1. Advocate Aarav Patel
  • Experience: more than 20 years
  • Expertise: Quashing matters
  • Practice Area: Criminal Lawyer

2. Advocate Aditya Verma
  • Experience: more than 25 years
  • Expertise: Quashing matters
  • Practice Area: Criminal Lawyer

3. Advocate Advik Chawla
  • Experience: more than 35 years
  • Expertise: Quashing matters
  • Practice Area: Criminal Lawyer

4. Advocate Kabir Gupta
  • Experience: more than 40 years
  • Expertise: Quashing matters
  • Practice Area: Criminal Lawyer

5. Advocate Aarav Khatri
  • Experience: more than 30 years
  • Expertise: Quashing matters
  • Practice Area: Criminal Lawyer

6. Advocate Vivan Banerjee
  • Experience: more than 50 years
  • Expertise: Quashing matters
  • Practice Area: Criminal Lawyer

7. Advocate Aarav Gupta
  • Experience: more than 30 years
  • Expertise: Quashing matters
  • Practice Area: Criminal Lawyer

8. Advocate Aanya Saxena
  • Experience: more than 25 years
  • Expertise: Quashing matters
  • Practice Area: Criminal Lawyer

9. Advocate Zara Saxena
  • Experience: more than 20 years
  • Expertise: Quashing matters
  • Practice Area: Criminal Lawyer

10. Advocate Aarav Saxena
  • Experience: more than 45 years
  • Expertise: Quashing matters
  • Practice Area: Criminal Lawyer