Leave granted.
The appellant is the mother of the victim who is a 12 years
old girl child.
The appellant is aggrieved by the Order dated 25-7-2022 passed
by the High Court of Kerala at Ernakulam, whereby Respondent No.1
has been granted protection of anticipatory bail in Crime No.442 of
2022 dated 27-5-2022 registered at Police Station Meenangadi
District Wayanad under Sections 354A(1)(i),(ii) & (iv), 354 A-(2)
and 354-A(3) of the Indian Penal Code read with Sections 7, 8, 9
and 11 of the Protection of Children from Sexual Offences Act, 2012
(for short, ‘POCSO Act’). The occurrence allegedly took place on
14-12-2021 when Respondent No.1 is alleged to have sexually
SignatureassaultedNot Verified his 12 years old niece. The allegations are that
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 co-curricular activities but
the incident traumatized her to an extent that she slumped down in
her course and performance. She was taken to counselling but did
not open up. The victim was taken for second counselling session
and at that time, she disclosed the unfortunate incident, she had
faced from her maternal uncle, namely, Respondent No.1.
Thereafter, the subject First Information Report was immediately
registered; medical examination was conducted and Statement of the
victim under Section 164 of the Code of Criminal Procedure, 1973
was recorded. Apprehending his arrest, Respondent No.1 approached
the learned Sessions Court but was declined anticipatory bail.
Thereafter, Respondent No.1 approached the High Court and vide
impugned Order dated 25-7-2022, the said Court granted him
conditional anticipatory bail on the following terms:
“12. Accordingly, I allow this application subject to the
following conditions:
(a) Petitioner shall appear before the Investigating Officer
from 9 am to 6 pm on 29.07.2022, 30.07.2022, 01.08.2022
and 02.08.2022 and shall subject himself to
interrogation. .
(b) If after interrogation, the investigating Officer proposes
to arrest the petitioner, then he shall be released on
bail on him executing a bond for Rs.5O,OOO/
(Rupees fifty thousand only) with two solvent sureties
each for the like sum before the Investigating Officer.
(c) Petitioner shall appear before the Investigating Officer
as and when required and shall also co-operate with the
investigation.
(d) Petitioner shall not intimidate or attempt to influence
the witnesses; nor shall he tamper with the evidence or
The mother of the victim child being aggrieved has approached
this Court.
We have heard learned counsel for the parties and gone through
the record.
The Special Judge, Sessions Division, Kalpetta, Wayanad, while
declining to grant anticipatory bail as prayed for by the
respondent No 1 herein (original accused) vide order dated 4th of
July, 2022 passed in Criminal Miscellaneous Case No. 512 of 2022,
observed as under:
“7. A careful perusal of the case diary shows that there
are sufficient reasons to suspect that the sexual abuse
as alleged by the prosecution has taken place at the
instance of the petitioner. The perpetrator is none other
than a close relative of the victim, i.e., her maternal
uncle. Statements of the victim given to the police as
well as to the learned Magistrate disclose the fact that
the incident took place in the house of the petitioner
while the victim and her mother paid a visit and stayed
there for some days. The statements also show that the
incident occurred in the bedroom of the petitioner while
none else was there. Bedroom of the petitioner is
situated up the stairs of the house. All other inmates
were in the down stair portion of the house at the
relevant time. Statements also show that the petitioner
attempted to disrobe the victim, made her to sit on his
lap, touched her breasts, kissed her by hugging and also
attempted to kiss on her lips. It is further seen that
when the petitioner attempted to remove her top, she
started to raise cry and then, he released her. It is
further seen that by making some kind of sexual comments,
he tried to stimulate sexual feelings in the child.
Taking into account the relationship between the victim
and the petitioner and the manner in which the acts were
committed, it is to be said that they are grievous in
nature.
8. As rightly argued by the learned counsel for the petitioner, there was delay of about 6 months in reporting the crime. But, mere delay is not a factor to disbelieve the prosecution case. In Joy v. State of Kerala (2019(1) KLT 935), it has been held that mere delay in reporting the matter to the authorities concerned, especially sexual assault on a minor girl is immaterial and it would not be fatal to the prosecution case. Moreover, the case diary clearly shows a good reason for the delay. Materials show that after the incident, the victim fell aback in her studies and appeared gloomy. A copy of her educational report has been made available. It shows that in her 6th standard, she secured Grade A1 or Grade A2 in all the subjects. But, in 7th standard, her performance had fallen down drastically. She secured C1 or C2 Grade in most of the subjects and in one subject, she secured B1 and in another subject, secured B2 Grade. The incident occurred while she was studying in 7th standard. Worried about her educational fall down, her parents consulted a counselor at Eranakulam. Statement of the counselor shows that the child was continuously weeping and was not ready to disclose the reason for the same in the first session. She was also found gloomy. Only in the second session of the counseling, she opened up and disclosed the incident. Because of fear, she did not disclose the incidents even to her mother. It is quite natural, since the perpetrator is the brother of her mother. Therefore, on the ground of delay, it cannot be said that the prosecution story is false.
9. An attempt is made by the learned counsel for the petitioner to show that this case is a retaliatory step taken by the mother of the victim in view of the property disputes between them. He relies on a crime registered as No.454/2022 of Meenangadi Police Station, wherein, the mother and stepfather of the child are accused. That F.I.R. was registered for the offences punishable under Sections 447, 323, 324, 354A(1)(i), 354A(1)(ii), 307 and 211 r/w 34 of IPC. But, that crime was registered only on 09.06.2022. i.e., after the registration of this crime. Moreover, the printout of "Watsapp" chats produced by the petitioner containing the chats between himself and the stepfather of the victim would go to show that there was no such discordiality between them even after the date of incident alleged in F.I.R. No.442/2022. So, there is every reason to believe that F.I.R. No.442/2022 might have been initiated by the petitioner as an afterthought to shield the prosecution in this crime.
x x x x x
13. From the case diary I find prima facie materials in
support of the prosecution case. If so, as held in Joy v.
State of Kerala (2019 (1) KLT 935) presumption under Sec.
29 of the PoCSO Act is also to be taken into
consideration by the courts while dealing with an
application for bail. I have also considered the question
as to whether custodial detention of the petitioner is
necessary. According to the petitioner, there is nothing
to be recovered and so custodial interrogation is not
required. But learned counsel for the victim submits that
the victim has not gained normalcy even now and granting
of bail would adversely affect her mental condition and
may feel helpless. Learned counsel also points out that
the petitioner being an advocate has high influence and
hold in the society and in the police and he is likely to
interfere with smooth investigation. I find enough force
in these submissions. If granting of bail is not in the
interest of the victim, court has to refuse bail since
the well being of the victim is also a relevant factor in
PoCSO cases.”
From the aforesaid, it is pertinent to note 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 has 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.
In the case of Joy (supra), the Kerala High Court observed as
under:
“10. This court is not oblivious to Section 29 of the
Act which contains a legislative mandate that the
court shall presume commission of the offences by the
accused unless the contrary is proved. Section 29 of
the Act states that where a person is prosecuted for
committing or abetting or attempting to commit any of
fence under Sections 3, 5, 7 and 9 of the Act, the Special Court shall presume, that such person has com mitted or abetted or attempted to commit the offence, as the case may be, unless the contrary is proved. The court shall take into consideration the presumption under Section 29 of the Act while dealing with an ap plication for bail filed by a person who is accused of the aforesaid offences under the Act (See State of Bi har v. Rajballav Prasad, (2017) 2 SCC 178 : AIR 2017 SC 630).
11. However, the statutory presumption under Section 29 of the Act does not mean that the prosecution ver sion has to be accepted as gospel truth in every case. The presumption does not mean that the court cannot take into consideration the special features of a par ticular case. Patent absurdities or inherent infirmi ties or improbabilities in the prosecution version may lead to an irresistible inference of falsehood in the prosecution case. The presumption would come into play only when the prosecution is able to bring on record facts that would form the foundation for the presump tion. Otherwise, all that the prosecution would be re quired to do is to raise some allegations against the accused and to claim that the case projected by it is true. The courts must be on guard to see that the ap plication of the presumption, without adverting to es sential facts, shall not lead to any injustice. The presumption under Section 29 of the Act is not abso lute. The statutory presumption would get activated or triggered only if the prosecution proves the essential basic facts. If the accused is able to create serious doubt on the veracity of the prosecution case or the accused brings on record materials which would render the prosecution version highly improbable, the pre sumption would get weakened. As held by the Apex Court in Siddharam Satlingappa Mhetre v. State of Maharash tra, (2011) 1 SCC 694 : AIR 2011 SC 312, frivolity in prosecution should always be considered and in the event of there being some doubt as to the genuineness of the prosecution, in the normal course of events, the accused is entitled to an order of anticipatory bail. No inflexible guidelines or straitjacket formula can be provided for grant or refusal of anticipatory bail. It should necessarily depend on facts and cir cumstances of each case in consonance with the leg islative intention.”
The High Court, while granting anticipatory bail to the
respondent No. 1 herein (original accused), observed in para 9 of
the impugned order something which has really disturbed us. Para 9
reads thus:
“9. With the above principle in mind, when the facts
of the case are noticed, it is revealed that the
petitioner is the maternal uncle of the victim to
whose house the victim went in December, 2021. On
14.12.2021, the victim is alleged to have been asked
to sit on the lap of the petitioner, who thereafter is
alleged to have hugged and kissed the victim on her
cheeks. Though on the one side, there is a possibility
of such hugs and kisses being manifestations of
affection by an uncle, one cannot ignore the
possibility of such show of 'affections' being
coloured by sexual overtones. However, those are all
matters for investigation.”
In our considered opinion, the observations made in Para 9 of
the impugned order are totally unwarranted and have been made
overlooking the specific allegations contained in the FIR, duly
supported with the Statement of the victim – girl child under
Section 164 of the Code.
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 free-hand to
take the investigation to its logical conclusion. It goes without
saying that appearance before the Investigating Officer who, has
been prevented from subjecting Respondent No.1 to custodial
interrogation, can hardly be fruitful to find out the prima facie
substance in the allegations, which are of extreme serious in
nature.
The fact that the victim – girl is traumatized to such a high
degree that her academic pursuits have been adversely impacted
alone, coupled with the legislative intent especially reflected
through Section 29 of the POCSO Act, are sufficient to dissuade a
Court from exercising its discretionary jurisdiction in granting
pre-arrest bail.
It may be true, as pointed out by learned counsel appearing
for Respondent No.1, that charge-sheet has already been filed. It
will be unfair to presume on our part that the Investigating
Officer does not require Respondent No.1 for custodial
interrogation for the purpose of further investigation.
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.
We are dealing with a matter wherein the original complainant
(appellant herein) has come before this Court praying that the
anticipatory bail granted by the High Court to the accused should
be cancelled. To put it in other words, the complainant says that
the High Court wrongly exercised its discretion while granting
anticipatory bail to the accused in a very serious crime like POCSO
and, therefore, the order passed by the High Court granting
anticipatory bail to the accused should be quashed and set aside.
In many anticipatory bail matters, we have noticed one common
argument being canvassed that no custodial interrogation is
required and, therefore, anticipatory bail may be granted. There
appears to be a serious misconception of law that if no case for
custodial interrogation is made out by the prosecution, then that
alone would be a good ground to grant anticipatory bail. Custodial
interrogation can be one of the relevant aspects to be considered
along with other grounds while deciding an application seeking
anticipatory bail. There may be many cases in which the custodial
interrogation of the accused may not be required, but that does not
mean that the prima facie case against the accused should be
ignored or overlooked and he should be granted anticipatory bail.
The first and foremost thing that the court hearing an anticipatory
bail application should consider is the prima facie case put up
against the accused. Thereafter, the nature of the offence should
be looked into along with the severity of the punishment. Custodial
interrogation can be one of the grounds to decline anticipatory
bail. However, even if custodial interrogation is not required or
necessitated, by itself, cannot be a ground to grant anticipatory
bail.
Before we close this matter one more clarification is
necessary. We have referred to the decision of the Kerala High
Court rendered in the case of Joy (supra). The case of Joy (supra)
deals with Section 29 of the POCSO Act. When the learned Judge
decided the anticipatory bail application, the decision of the
coordinate Bench in the case of Joy (supra) was binding to him. He
could not have ignored a binding decision. It is a different thing
to say that if he may disagree with the view taken and accordingly
refer it to a larger Bench. However, without looking into the
dictum as laid in Joy (supra), the observations made by the High
Court in para 9 of its impugned order referred to above could be
said to be absolutely unwarranted and not one befitting a High
Court.
We are not going into the issue of Section 29 of the POCSO Act
in the present case. Even without the aid of Section 29 of the
POCSO Act, we are convinced that the High Court committed a serious
error in exercising its discretion in favour of the respondent No.
1 herein (original accused) while granting anticipatory bail.
For the reasons afore-stated, and without expressing any views
on merits of the case, we allow this appeal; set aside the impugned
Judgment and Order dated 25-7-2022 passed by the High Court
granting anticipatory bail to Respondent No.1.
Investigating Officer is granted liberty to proceed further in
accordance with law.
Suffice to say that law will take its own course.