9911796707
TMI Blog2022 (10) TMI 1177X X X X Extracts X X X X X X X X Extracts X X X X ..... (for short, 'POCSO Act'). The occurrence allegedly took place on 14122021 when Respondent No.1 is alleged to have sexually assaulted his 12 years old niece. The allegations are that Respondent No.1 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. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ioner 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bsp; 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 rel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the accused brings on record materials which would render the prosecution version highly improbable, the presumption would get weakened. As held by the Apex Court in Siddharam Satlingappa Mhetre v. State of Maharashtra, (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 circumstances of each case in consonance with the legislative 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 petitio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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