SUMITHA PRADEEP versus ARUN KUMAR C.K & ANR. on 21 October 2022

O R D E R

1. Leave granted.

2. The appellant is the mother of the victim who is a 12 years oldgirl child.

3. The appellant is aggrieved by the Order dated 25-7-2022 passedby the High Court of Kerala at Ernakulam, whereby Respondent No.1has been granted protection of anticipatory bail in Crime No.442 of 2022dated 27-5-2022 registered at Police Station Meenangadi DistrictWayanad 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 Protectionof Children from Sexual Offences Act, 2012 (for short, ‘POCSO Act’).The occurrence allegedly took place on 14-12-2021 when Respondent A

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ANo.1 is alleged to have sexually assaulted his 12 years old niece. Theallegations are that Respondent No.1 asked the victim to sit on his lapand thereafter he hugged her and kissed her on the cheeks and tried tokiss her on her lips. He further attempted to disrobe the victim and madelewd comments. The victim was an excellent student giving goodperformances both in curricular and co-curricular activities but theBincident traumatized her to an extent that she slumped down in her courseand performance. She was taken to counselling but did not open up. Thevictim was taken for second counselling session and at that time, shedisclosed the unfortunate incident, she had faced from her maternaluncle, namely, Respondent No.1. Thereafter, the subject First InformationCReport was immediately registered; medical examination was conductedand Statement of the victim under Section 164 of the Code of CriminalProcedure, 1973 was recorded. Apprehending his arrest, RespondentNo.1 approached the learned Sessions Court but was declinedanticipatory bail.

D4. Thereafter, Respondent No.1 approached the High Court andvide impugned Order dated 25-7-2022, the said Court granted himconditional anticipatory bail on the following terms:- “12. Accordingly, I allow this application subject to the followingconditions:

E(a)Petitioner shall appear before the Investigating Officer from9 am to 6 pm on 29.07.2022, 30.07.2022, 01.08.2022 and02.08.2022 and shall subject himself to interrogation.

(b) If after interrogation, the investigating Officer proposes toarrest the petitioner, then he shall be released on bail onFhim executing a bond for Rs.50,000/- (Rupees fifty thousandonly) with two solvent sureties each for the like sum beforethe Investigating Officer.

(c) Petitioner shall appear before the Investigating Officer asand when required and shall also co-operate with theGinvestigation.

(d) Petitioner shall not intimidate or attempt to influence thewitnesses; nor shall he tamper with the evidence or xx xx xx xx; H

(e) xx xx xx xxA

(f) xx xx xx”

5. The mother of the victim child being aggrieved has approachedthis Court.

6. We have heard learned counsel for the parties and gone throughthe record.

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7. The Special Judge, Sessions Division, Kalpetta, Wayanad, whiledeclining to grant anticipatory bail as prayed for by the respondent No 1herein (original accused) vide order dated 4[th] of July, 2022 passed inCriminal Miscellaneous Case No. 512 of 2022, observed as under:- C

“7. A careful perusal of the case diary shows that there aresufficient reasons to suspect that the sexual abuse as allegedby the prosecution has taken place at the instance of thepetitioner. The perpetrator is none other than a close relativeof the victim, i.e., her maternal uncle. Statements of the victimgiven to the police as well as to the learned Magistratedisclose the fact that the incident took place in the house ofthe petitioner while the victim and her mother paid a visit andstayed there for some days. The statements also show that theincident occurred in the bedroom of the petitioner while noneelse was there. Bedroom of the petitioner is situated up thestairs of the house. All other inmates were in the down stairportion of the house at the relevant time. Statements also showthat the petitioner attempted to disrobe the victim, made herto sit on his lap, touched her breasts, kissed her by huggingand also attempted to kiss on her lips. It is further seen thatwhen the petitioner attempted to remove her top, she startedto raise cry and then, he released her. It is further seen thatby making some kind of sexual comments, he tried to stimulatesexual feelings in the child. Taking into account therelationship between the victim and the petitioner and themanner in which the acts were committed, it is to be said thatthey are grievous in nature.

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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 H

Acase. In Joy v. State of Kerala (2019(1) KLT 935), it has beenheld that mere delay in reporting the matter to the authoritiesconcerned, especially sexual assault on a minor girl isimmaterial and it would not be fatal to the prosecution case.Moreover, the case diary clearly shows a good reason for thedelay. Materials show that after the incident, the victim fellBaback in her studies and appeared gloomy. A copy of hereducational report has been made available. It shows that inher 6th standard, she secured Grade A1 or Grade A2 in allthe subjects. But, in 7th standard, her performance had fallendown drastically. She secured C1 or C2 Grade in most of theCsubjects and in one subject, she secured B1 and in anothersubject, secured B2 Grade. The incident occurred while shewas studying in 7th standard. Worried about her educationalfall down, her parents consulted a counselor at Eranakulam.Statement of the counselor shows that the child wascontinuously weeping and was not ready to disclose the reasonDfor the same in the first session. She was also found gloomy.Only in the second session of the counseling, she opened upand disclosed the incident. Because of fear, she did notdisclose the incidents even to her mother. It is quite natural,since the perpetrator is the brother of her mother. Therefore,Eon the ground of delay, it cannot be said that the prosecutionstory is false.

9. An attempt is made by the learned counsel for the petitionerto show that this case is a retaliatory step taken by the motherof the victim in view of the property disputes between them.FHe relies on a crime registered as No.454/2022 ofMeenangadi Police Station, wherein, the mother andstepfather of the child are accused. That F.I.R. was registeredfor the offences punishable under Sections 447, 323, 324,354A(1)(i), 354A(1)(ii), 307 and 211 r/w 34 of IPC. But, thatcrime was registered only on 09.06.2022. i.e., after theGregistration of this crime. Moreover, the printout of “Watsapp”chats produced by the petitioner containing the chats betweenhimself and the stepfather of the victim would go to show thatthere was no such discordiality between them even after thedate of incident alleged in F.I.R. No.442/2022. So, there isHevery reason to believe that F.I.R. No.442/2022 might have H

been initiated by the petitioner as an afterthought to shieldthe prosecution in this crime.

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13. From the case diary I find prima facie materials in supportof the prosecution case. If so, as held in Joy v. State of Kerala(2019 (1) KLT 935) presumption under Sec. 29 of the PoCSOAct is also to be taken into consideration by the courts whiledealing with an application for bail. I have also consideredthe question as to whether custodial detention of the petitioneris necessary. According to the petitioner, there is nothing tobe recovered and so custodial interrogation is not required.But learned counsel for the victim submits that the victim hasnot gained normalcy even now and granting of bail wouldadversely affect her mental condition and may feel helpless.Learned counsel also points out that the petitioner being anadvocate has high influence and hold in the society and inthe police and he is likely to interfere with smoothinvestigation. I find enough force in these submissions. Ifgranting of bail is not in the interest of the victim, court hasto refuse bail since the well being of the victim is also arelevant factor in PoCSO cases.”

8. From the aforesaid, it is pertinent to note that the Special Judgerelied 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 hastaken the view that the courts shall take into consideration the presumptionunder Section 29 of the POCSO Act while dealing with an applicationfor bail filed by a person who is accused of the offence under the Act.

9. In the case of Joy (supra), the Kerala High Court observed asunder:- “10. This court is not oblivious to Section 29 of the Act whichcontains a legislative mandate that the court shall presumecommission of the offences by the accused unless the contraryis proved. Section 29 of the Act states that where a person isprosecuted for committing or abetting or attempting to commitany offence under Sections 3, 5, 7 and 9 of the Act, the SpecialCourt shall presume, that such person has committed orabetted or attempted to commit the offence, as the case may A

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be, unless the contrary is proved. The court shall take intoconsideration the presumption under Section 29 of the Actwhile dealing with an application for bail filed by a personwho is accused of the aforesaid offences under the Act(See State of Bihar v. Rajballav Prasad, (2017) 2 SCC 178 :AIR 2017 SC 630).

11. However, the statutory presumption under Section 29 ofthe Act does not mean that the prosecution version has to beaccepted as gospel truth in every case. The presumption doesnot mean that the court cannot take into consideration thespecial features of a particular case. Patent absurdities orinherent infirmities or improbabilities in the prosecutionversion may lead to an irresistible inference of falsehood inthe prosecution case. The presumption would come into playonly when the prosecution is able to bring on record factsthat would form the foundation for the presumption.Otherwise, all that the prosecution would be required to do is to raise some allegations against the accused and to claimthat the case projected by it is true. The courts must be onguard to see that the application of the presumption, withoutadverting to essential facts, shall not lead to any injustice.The presumption under Section 29 of the Act is not absolute.The statutory presumption would get activated or triggeredonly if the prosecution proves the essential basic facts. If theaccused is able to create serious doubt on the veracity of theprosecution case or the accused brings on record materialswhich would render the prosecution version highlyimprobable, the presumption would get weakened. As held bythe Apex Court in Siddharam Satlingappa Mhetre v. State ofMaharashtra, (2011) 1 SCC 694 : AIR 2011 SC 312, frivolityin prosecution should always be considered and in the eventof there being some doubt as to the genuineness of theprosecution, in the normal course of events, the accused isentitled to an order of anticipatory bail. No inflexibleguidelines or straitjacket formula can be provided for grantor refusal of anticipatory bail. It should necessarily dependon facts and circumstances of each case in consonance withthe legislative intention.”

10. The High Court, while granting anticipatory bail to therespondent No. 1 herein (original accused), observed in para 9 of theimpugned order something which has really disturbed us. Para 9 readsthus:- “9. With the above principle in mind, when the facts of thecase are noticed, it is revealed that the petitioner is the maternaluncle of the victim to whose house the victim went in December,2021. On 14.12.2021, the victim is alleged to have been asked tosit on the lap of the petitioner, who thereafter is alleged to havehugged and kissed the victim on her cheeks. Though on the oneside, there is a possibility of such hugs and kisses beingmanifestations of affection by an uncle, one cannot ignore thepossibility of such show of ‘affections’ being coloured by sexualovertones. However, those are all matters for investigation.”

11. In our considered opinion, the observations made in Para 9 ofthe impugned order are totally unwarranted and have been madeoverlooking the specific allegations contained in the FIR, duly supportedwith the Statement of the victim – girl child under Section 164 of theCode.

12. In a case containing such serious allegations, the High Courtought not to have exercised its jurisdiction in granting protection againstarrest, as the Investigating Officer deserves free-hand to take theinvestigation to its logical conclusion. It goes without saying thatappearance before the Investigating Officer who, has been preventedfrom subjecting Respondent No.1 to custodial interrogation, can hardlybe fruitful to find out the prima facie substance in the allegations, whichare of extreme serious in nature.

13. The fact that the victim – girl is traumatized to such a highdegree that her academic pursuits have been adversely impacted alone,coupled with the legislative intent especially reflected through Section29 of the POCSO Act, are sufficient to dissuade a Court from exercisingits discretionary jurisdiction in granting pre-arrest bail.

14. It may be true, as pointed out by learned counsel appearingfor Respondent No.1, that charge-sheet has already been filed. It will beunfair to presume on our part that the Investigating Officer does notrequire Respondent No.1 for custodial interrogation for the purpose offurther investigation.

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A15. Be that as it may, even assuming it a case where RespondentNo.1 is not required for custodial interrogation, we are satisfied that theHigh Court ought not to have granted discretionary relief of anticipatorybail.

16. We are dealing with a matter wherein the original complainantB(appellant herein) has come before this Court praying that the anticipatorybail granted by the High Court to the accused should be cancelled. Toput it in other words, the complainant says that the High Court wronglyexercised its discretion while granting anticipatory bail to the accused ina very serious crime like POCSO and, therefore, the order passed bythe High Court granting anticipatory bail to the accused should be quashedCand set aside. In many anticipatory bail matters, we have noticed onecommon argument being canvassed that no custodial interrogation isrequired and, therefore, anticipatory bail may be granted. There appearsto be a serious misconception of law that if no case for custodialinterrogation is made out by the prosecution, then that alone would be aDgood ground to grant anticipatory bail. Custodial interrogation can beone of the relevant aspects to be considered along with other groundswhile deciding an application seeking anticipatory bail. There may bemany cases in which the custodial interrogation of the accused may notbe required, but that does not mean that the prima facie case againstthe accused should be ignored or overlooked and he should be grantedEanticipatory bail. The first and foremost thing that the court hearing ananticipatory bail application should consider is the prima facie case putup against the accused. Thereafter, the nature of the offence should belooked into along with the severity of the punishment. Custodialinterrogation can be one of the grounds to decline anticipatory bail.FHowever, even if custodial interrogation is not required or necessitated,by itself, cannot be a ground to grant anticipatory bail.

17. Before we close this matter one more clarification is necessary.We have referred to the decision of the Kerala High Court rendered inthe case of Joy (supra). The case of Joy (supra) deals with Section 29Gof the POCSO Act. When the learned Judge decided the anticipatorybail 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 takenand accordingly refer it to a larger Bench. However, without lookinginto the dictum as laid in Joy (supra), the observations made by the HighH

Court in para 9 of its impugned order referred to above could be said tobe absolutely unwarranted and not one befitting a High Court.

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18. We are not going into the issue of Section 29 of the POCSOAct in the present case. Even without the aid of Section 29 of the POCSOAct, we are convinced that the High Court committed a serious error inexercising its discretion in favour of the respondent No. 1 herein (originalBaccused) while granting anticipatory bail.

19. For the reasons afore-stated, and without expressing any viewson merits of the case, we allow this appeal; set aside the impugnedJudgment and Order dated 25-7-2022 passed by the High Court grantinganticipatory bail to Respondent No.1.

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20. Investigating Officer is granted liberty to proceed further inaccordance with law.

21. Suffice to say that law will take its own course.

Devika Gujral

Appeal allowed.

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