Summary
A 12-year-old girl alleged that her maternal uncle, an advocate, made her sit on his lap, hugged and kissed her, tried to disrobe her and made lewd remarks. She disclosed this months later in counselling, after her school performance collapsed. The Kerala High Court granted him anticipatory bail, remarking that the hugs and kisses might be an uncle's affection. On the mother's appeal, the Supreme Court set the bail aside. The remark ignored the FIR, the victim's Section 164 statement and the binding coordinate-bench ruling in Joy on Section 29 of the POCSO Act. The gravity of the allegations and the child's trauma sufficed to refuse pre-arrest bail. A court must first weigh the prima facie case, the nature of the offence and the severity of punishment. That custodial interrogation is not needed is not by itself a ground for anticipatory bail.
Issues
- Whether the High Court rightly granted anticipatory bail to an accused charged with sexually assaulting his 12-year-old niece under the POCSO Act.
- Whether the absence of need for custodial interrogation is by itself a ground to grant anticipatory bail.
Provisions considered
- Section 438, Code of Criminal Procedure, 1973The court must first consider the prima facie case, the nature of the offence and the severity of punishment; custodial interrogation is only one relevant factor, and its absence alone does not justify anticipatory bail. (¶¶ 12, 15, 16)
- Section 29, Protection of Children from Sexual Offences Act, 2012The legislative intent reflected in the presumption, with the child's trauma, dissuades exercise of discretion for pre-arrest bail; the Court did not decide the scope of Section 29 itself. (¶¶ 13, 17, 18)
- Sections 7, 8, 9 and 11, Protection of Children from Sexual Offences Act, 2012The FIR alleged sexual assault and harassment offences against the child, read with Section 354A IPC. (¶ 3)
Held
- The High Court's observation that the hugs and kisses could be manifestations of an uncle's affection was totally unwarranted, overlooking the specific allegations in the FIR supported by the victim's Section 164 statement. (¶¶ 10, 11)
- Given the serious allegations, the investigating officer deserved a free hand, and the child's trauma, which had damaged her studies, together with the legislative intent of the POCSO Act, sufficed to refuse pre-arrest bail even if custodial interrogation was not required. (¶¶ 12, 13, 14, 15)
- The High Court judge was bound by the coordinate-bench decision in Joy and could not ignore it, though he might have referred it to a larger bench if he disagreed. (¶ 17)
Result
Appeal allowed without expressing any view on the merits; the Kerala High Court's order dated 25.07.2022 granting anticipatory bail set aside, with liberty to the investigating officer to proceed in accordance with law.