'Someone’s Liberty Is At Stake': Kerala High Court Advises Caution While Considering Bail In POCSO Case Against Parent Litigating Child's Custody

The Kerala High Court on Tuesday held that while considering bail applications related to offences under the POCSO Act that involve allegations of child abuse by a parent, courts should approach the matter with great care, especially when there is litigation between parents over the custody of the child.

A single bench of Justice Ziyad Rahman while allowing a bail application filed by a father who was accused of sexually assaulting his 10 year old son cautioned that :

“In such cases, when the materials placed before the court evoke a reasonable suspicion as to the veracity of the allegations, the courts should not hesitate to invoke the powers under section 438 of the Cr.P.C. What is at stake is someone’s personal liberty, integrity, dignity and sometimes, the life itself. The power under section 438 is an important tool for the court to protect the personal liberty of the persons, which is one of the fundamental rights guaranteed under the Constitution of India”

Referring to the decision of the court in Suhara and Others v. Muhammed Jaleel the court pointed out that there were increasing number of false cases filed against the biological father by misusing the POSCO Act, and such cases must be handled with caution by Family Courts when there is a custody battle between parents for the child.

Adv. S. Rajeev appearing for the petitioner contended that the petitioner was being falsely accused by his wife in order to deprive him of any interaction with their son. The counsel pointed out that litigation with regard to the dissolution of marriage between the father and mother was pending before the family court. It was also pointed out that various orders were passed by the family court permitting the father to interact with the child, but the mother had not complied with the same. Proceedings in connection with the violation of said orders were also pending before the family court. Public Prosecutor Sreejith V S however, submitted that granting anticipatory bail would interfere with the progress of investigation.

The allegation in this case was that the father while interacting with the child under orders of the family court, showed him nude photographs of the victim from when he was small. He also allegedly touched the victim’s private parts with sexual intent while interacting with the child. The court analysed the orders of the family court to note that as per the said orders the interactions of father with the son were smooth and no allegations had been raised by the mother at the time.

The court also observed that when the child was referred to a counsellor by the family court, no such revelation of sexual assault was made by the victim and if that had been the case, the counsellor would not have recommended that the child be allowed to interact with his father more.

The court expressed its doubt on the veracity of the allegations against the petitioner and observed:

“The impression that could be gathered from the sequence of events referred to above compels this court to take the view that an order to protect the personal liberty of the petitioner is absolutely necessary. This Court cannot ignore the trauma, loss of dignity and other difficulties which the petitioner, who is an educated person without any criminal antecedents, has to face if he is compelled to undergo detention based on allegations which are under the shadow of a doubt. If it is ultimately turned out that the allegations are false, nobody can compensate for the loss that may occur to a person due to such detention. “

However, the court made it clear that the accused was to surrender before the investigating officer and cooperate with the investigation and imposed bail conditions accordingly.

Case Title: XXXXXX V State of Kerala

Citation: 2023 LiveLaw (Ker) 124

Click here to read/download the judgment