Anticipatory bail: Case filed against respondent no.1 under ss.354(1)(i), (ii) and (iv), 354A(2) and 354A(3) IPC /w ss.7, 8, 9 and 11 of POCSO Act – Allegation against respondent no.1 was that he sexually assaulted his 12 years old niece – He asked the victim to sit on his lap and thereafter hugged her and kissed her on the cheeks and tried to kiss her on her lips – He further attempted to disrobe her and made lewd comments – The incident traumatized the victim to an extent that she slumped down in her course and performance although she was an excellent student giving good performances – She was taken to counselling but did not open up – In second counselling session, she disclosed the unfortunate incident – Thereafter, FIR was registered against respondent no.1 – Respondent no.1 approached Sessions Court but was declined the anticipatory bail, however High Court granted protection of anticipatory bail – Instant appeal by victim’s mother – Held: 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 – The fact that the victim was traumatized to such a high degree that her academic pursuits were adversely impacted alone, coupled with the legislative intent especially reflected through s.29 of the POCSO Act, are sufficient to dissuade a Court from exercising its discretionary jurisdiction in granting pre-arrest bail – 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 – However, even if custodial interrogation is not required or necessitated by itself cannot be ground to grant anticipatory bail – There may be many cases in which the custodial interrogation of the accused may not be required, but that would not mean that 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 – In the facts of this case, High Court ought not to have granted discretionary relief of anticipatory bail.
Joy v. State of Kerala (2019) 1 KLT 935 – referred to.
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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