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2022 (10) TMI 1177 - SUPREME COURTGrant of protection of anticipatory bail - Sexual Assault - Sections 354A(1)(i),(ii) & (iv), 354 A( 2) and 354A( 3) of the Indian Penal Code read with Sections 7, 8, 9 and 11 of the Protection of Children from Sexual Offences Act, 2012 - HELD THAT:- The Special Judge relied upon the decision of the Kerala High Court in the case of JOY V.S. VERSUS STATE OF KERALA [2019 (3) TMI 1906 - KERALA HIGH COURT], 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 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. 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 prearrest 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 custodial interrogation. However, even if custodial interrogation is not required or necessitated, by itself, cannot be a ground to grant anticipatory bail. The issue of Section 29 of the POCSO Act, not taken up in the present case. Even without the aid of Section 29 of the POCSO Act, it is convincing 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. The impugned Judgment and Order dated 2572022 passed by the High Court granting anticipatory bail to Respondent No.1 is set aside - appeal allowed.
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