2022 (10) TMI 1177 - SC - Indian Laws

Grant 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.

Summary

Issues Involved:
1. Grant of anticipatory bail to the accused under POCSO Act.
2. Delay in reporting the crime.
3. Consideration of Section 29 of the POCSO Act.
4. Prima facie case and custodial interrogation necessity.
5. High Court's discretion in granting anticipatory bail.

Issue-wise Detailed Analysis:

1. Grant of anticipatory bail to the accused under POCSO Act:
The appellant, mother of the victim, challenged the High Court of Kerala's decision to grant anticipatory bail to the accused under Sections 354A(1)(i),(ii) & (iv), 354A(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 (POCSO Act). The accused was alleged to have sexually assaulted his 12-year-old niece. The High Court granted anticipatory bail with conditions, including appearing before the Investigating Officer and not intimidating witnesses.

2. Delay in reporting the crime:
The Special Judge observed that there was a six-month delay in reporting the crime. However, it was noted that mere delay is not a factor to disbelieve the prosecution case, especially in sexual assault cases involving minors. The victim's educational performance declined post-incident, and she disclosed the incident only during the second counseling session due to fear, which justified the delay.

3. Consideration of Section 29 of the POCSO Act:
The Special Judge and the Supreme Court emphasized the presumption under Section 29 of the POCSO Act, which mandates that the court shall presume the commission of the offense by the accused unless the contrary is proved. This presumption is crucial while dealing with bail applications under the POCSO Act. The Kerala High Court in Joy v. State of Kerala (2019) held that the statutory presumption under Section 29 does not mean the prosecution version has to be accepted as gospel truth but should be considered along with the facts of the case.

4. Prima facie case and custodial interrogation necessity:
The Supreme Court found that the High Court overlooked the specific allegations in the FIR and the victim's statement under Section 164 of the Code of Criminal Procedure. The High Court's observation that the accused's actions could be manifestations of affection was deemed unwarranted. The Supreme Court highlighted that the prima facie case against the accused and the severity of the offense should be the primary considerations in anticipatory bail applications. Custodial interrogation, while relevant, is not the sole factor in deciding anticipatory bail.

5. High Court's discretion in granting anticipatory bail:
The Supreme Court criticized the High Court for granting anticipatory bail despite the serious nature of the allegations and the legislative intent of Section 29 of the POCSO Act. The High Court's discretion was deemed to have been exercised erroneously. The Supreme Court emphasized that even if custodial interrogation is not required, it does not automatically justify granting anticipatory bail. The prima facie case and the impact on the victim's well-being are paramount considerations.

Conclusion:
The Supreme Court allowed the appeal, set aside the High Court's order granting anticipatory bail, and granted the Investigating Officer liberty to proceed in accordance with the law. The judgment underscores the importance of considering the prima facie case, the severity of the offense, and the legislative intent of the POCSO Act while deciding anticipatory bail applications.