Sakina Tashrifwala
Published on: October 23, 2022 at 19:08 IST
The Supreme Court expressed grave concern over various observations made by the Kerala High Court in a decision which granted bail to a man accused of sexually assaulting his underage niece.
The Supreme Court bench was alluding to the Kerala High Court‘s observations:
“Though such hugs and kisses could be interpreted as expressions of affection by an uncle, one cannot dismiss the likelihood that such displays of ‘affections’ are tinged with sexual undertones. However, all of these are concerns that need to be looked into.”
“In our considered opinion, the observations made in Para 9 of the impugned order are totally unwarranted and have been made without regard to the specific allegations contained in the FIR, duly supported by the Statement of the victim-girl child under Section 164 of the Code,” the bench of Justices Surya Kant and JB Pardiwala observed.
In this instance, the accused is accused of sexually assaulting his 12-year-old niece; of asking the victim to sit on his lap and then hugging and kissing her on the cheeks and trying to kiss her on the lips; of attempting to disrobe the victim and making filthy statements.
Following the filing of a FIR in this case, the accused petitioned the Special Court for anticipatory bail, which was denied.
Following that, he petitioned the High Court for anticipatory bail. He was given anticipatory bail on condition.
The mother of the girl agreed and moved the Apex Court.
The bench rejected the High Court’s observations in the ruling admitting the appeal.
The court further stated that even if custodial interrogation is not required or required, it cannot be used as a basis for granting anticipatory relief. It discovered:
“In a case involving such severe allegations, the High Court should not have exercised its authority by giving protection from arrest, because the Investigating Officer requires complete freedom to carry out the inquiry.”
“It goes without saying that appearing before the Investigating Officer, who has been barred from questioning Respondent No.1 in custody, will be fruitless in determining the prima facie content of the charges, which are extremely serious in nature….”
The fact that the victim – girl has been traumatised to such an extent that her academic pursuits have been harmed alone, combined with the legislative intent, particularly as reflected in
Section 29 of the POCSO Act, is sufficient to dissuade a Court from exercising its discretionary jurisdiction in granting prearrest bail.”
The bench also noted that, in dismissing the first anticipatory bail petition, the Special Judge relied on a decision of the Kerala High Court in the case of Joy vs. State Of Kerala,(2019) 1 KLT 935, which stated that courts must consider the presumption under Section 29 of the POCSO Act when dealing with an application for bail filed by a person accused of an offence under the Act.
The bench concluded that the High Court could not have disregarded a binding decision.
It is another thing to argue so if he disagrees with the decision and refers it to a larger Bench, the court said.
“In this matter, we will not address the question of Section 29 of the POCSO Act. Even without the benefit of Section 29 of the POCSO Act, we are convinced that the High Court made a significant error in granting anticipatory bail to respondent No. 1 herein (original accused) “, the bench stated while dismissing the appeal and overturning the High Court’s anticipatory bail ruling.