In CRIM. APPEAL NO.1834/2022-SC- Even if accused was not required for custodial interrogation, High Court ought not to have granted discretionary relief of anticipatory bail: Top Court sets aside order granting bail to POCSO accused
Justices Surya Kant & J.B.Pardiwala [21-10-2022]

Read Order: SUMITHA PRADEEP Vs. ARUN KUMAR C.K & ANR

LE Correspondent

New Delhi, October 25, 2022: While setting aside the order granting bail to a POCSO Act accused, the Supreme Court has opined that the court hearing an anticipatory bail application should consider the prima facie case put up against the accused, the nature of the offence along with the severity of the punishment. 

“Custodial interrogation can be one of the grounds to decline custodial interrogation. However, even if custodial interrogation is not required or necessitated, by itself, cannot be a ground to grant anticipatory bail”, the Division Bench of Justice Surya Kant and Justice J.B.Pardiwala held.

In this case, the appellant was aggrieved by the Orderpassed by the High Court of Kerala, whereby Respondent-accused had been granted protection of anticipatory bail in a case registered under Sections 354A(1)(i),(ii) & (iv), 354 A­(2) and 354­A(3) of the Indian Penal Code r/w Sections 7, 8, 9 and 11 of the Protection of Children from Sexual Offences Act, 2012 (POCSO Act). 

The occurrence took place in the year 2021 when the accused was alleged to have sexually assaulted his 12 years old niece. The allegations were that he asked the victim to sit on his lap and thereafter he hugged her and kissed her on the cheeks and tried to kiss her on her lips. He further attempted to disrobe the victim and made lewd comments. 

The victim was an excellent student giving good performances both in curricular and co­curricular activities but the incident traumatized her to an extent that she slumped down in her course and performance. Thereafter, the subject FIR was immediately registered and  medical examination was conducted. Apprehending his arrest, the accused approached the Sessions Court but was declined anticipatory bail.However, the High Court granted him conditional anticipatory bail. The mother of the victim child being aggrieved had approached the Top Court.

The Bench took note of the fact that the Special Judge relied upon the decision of the Kerala High Court in the case of Joy v. State Of Kerala,(2019) 1 KLT 935, wherein the Kerala High Court had taken the view that the courts shall take into consideration the presumption under Section 29 of the POCSO Act while dealing with an application for bail filed by a person who is accused of the offence under the Act.

As per the Bench, in a case containing such serious allegations, the High Court ought not to have exercised its jurisdiction in granting protection against arrest, as the Investigating Officer deserves free­hand to take the investigation to its logical conclusion. 

The Bench noted that the fact that the victim – girl was traumatized to such a high degree that her academic pursuits had been adversely impacted alone, coupled with the legislative intent especially reflected through Section 29 of the POCSO Act,were sufficient to dissuade a Court from exercising its discretionary jurisdiction in granting pre­arrest bail. 

“Be that as it may, even assuming it a case where Respondent No.1 is not required for custodial interrogation, we are satisfied that the High Court ought not to have granted discretionary relief of anticipatory bail”, the Bench said.

Thus, noting that even if custodial interrogation is not required or necessitated, by itself, cannot be a ground to grant anticipatory bail, the Bench allowed the appeal and set aside the impugned Judgment passed by the High Court granting anticipatory bail to the accused.