“Myths, stereotyping and even generalisation, which are all different forms of bias, must be avoided… But care must be taken to avoid consensual relationships being converted into instances of rape,” the Kerala High Court said.

Picture of Vijay Babu with the Kerala High Court in the background
news Court Wednesday, June 22, 2022 - 19:15

The Kerala High Court granted conditional pre-arrest bail to rape-accused actor-producer Vijay Babu, directing him to appear for interrogation before the Kerala police and cooperate with the investigation. The Kerala High Court bench of Justice Bechu Kurian Thomas dismissed the prosecution’s submission against Vijay’s bail application that he cannot seek pre-arrest relief while he is in Dubai. The court cited previous court judgments to observe that an application for pre-arrest bail can be filed even by a person residing outside the country. The court also said that the law on anticipatory bail (Section 438 of the CrPC) does not contain a restrictive mandate that a person residing outside the country cannot file an application for pre-arrest bail.

The court also observed that prima facie, WhatsApp messages submitted to the court show an ‘intense relationship’ between Vijay Babu and the survivor. The court said that while stereotypical generalisations and doubts over whether the survivor an ‘ideal victim’, when was the complaint filed, and such other biases against survivors often noticed in a rape cases should be avoided, consensual relationships “should not be converted into instances of rape.”

Moving on to the prosecution’s submission that there is enough evidence against Vijay Babu to deny his bail application, Justice Bechu Kurian Thomas said, “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.” 

The Kerala High Court said that it will not be delving into the material and evidence submitted to the court about the case itself, but will consider arguments made before the court and the basic submissions. The court observed in its order that “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,” and that there are WhatsApp text exchanges between the two that “prima facie convey an intense relationship between them.” The court also noted that the WhatsApp messages  at least from March 31 to April 17 “do not refer to any instances of sexual assault.”

The High Court said that the court should stop scrutinising the way women behave from a masculine point of view, and should avoid stereotyping and generalising survivors of rape or sexual assault. However, it also observed that though these should be discarded, courts must be careful not to convert ‘consensual relationships into instances of rape.

“The stereotyped notions of chastity, resistance to rape, having visible physical injuries, behaving in a certain way, reporting the offence immediately, etc, are all rape myths. Notwithstanding the above, care must be taken to avoid consensual relationships being converted into instances of rape,” the Kerala High Court said in its order. 

The court also noted that Vijay Babu has been questioned for about 38 hours by the police and has submitted both his phones for investigation. The court also noted that Vijay’s passport has already been impounded, so he cannot flee the country.

The judge noted that though the prosecution counsel argued that the High Court should take cognisance of the material submitted to the court, this should be reserved for the stage of the trial in the case, and not an anticipatory bail plea. 

The court has granted the police limited custody to interrogate Vijay Babu. The court ordered Vijay to surrender before the investigating officer on June 27 at 9 am for questioning. The High Court said that the petitioner can be interrogated for the next seven days from June 27 to July 3, from 9 am to 6 pm and during this time, it will be considered that Vijay is under custody, in order to facilitate the investigation.

The court also forbade Vijay from trying to contact or interact with the survivor or any witnesses in the case. “Petitioner shall not indulge in any form of attack through social media or other modes against the victim or her family,” the court added. 

Vijay Babu has also been barred from leaving Kerala without the court’s permission, and from committing any offence while on bail. 

Vijay Babu has been accused of raping a young actor in Malayalam films, who filed a  police complaint on April 22 that he subjected her to ‘sexual assault and emotional abuse for weeks.’ After her allegation, Vijay Babu had been absconding, and released a Facebook video dismissing her claims and even naming her. Later, he filed a pre-arrest bail application from Dubai, alleging that he was being targeted for giving a movie role to another actor, instead of the complainant. The Kerala High Court had granted him interim anticipatory bail to allow him to come back to India and join the probe. 

Also read: Vijay Babu's court testimony contradicts his own claims in rape case

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