POCSO Act | Courts Must Be Sensitive To Victim's Plight But Should Not Accept Allegations As Gospel Truth In Every Case: Kerala High Court

The Kerala High Court on Monday, while allowing a pre-arrest bail application, observed that in matters of alleged sexual offences, especially against minor victims, the courts must be sensitive to the plight of the victims; however, that does not mean that the allegations ought to be accepted as the gospel truth in every case. 

Justice Bechu Kurian Thomas cautioned the courts about false allegations to achieve ulterior objectives and observed that tutoring a witness by the parents even while considering an application for bail cannot be ignored.

"Though the court ought to be sensitive, that does not mean that the allegations ought to be accepted as the gospel truth in every case. the court must always be cautious of false allegations for the purpose of achieving ulterior objectives. Tutoring a witness at the hands of the parents, especially when the victim is a child, cannot be ignored even while considering an application for regular bail or pre-arrest bail."

The prosecution case is that the petitioner, who is a lawyer, sexually assaulted his 12-year-old niece. Counsel appearing for the petitioner, Advocate M.R. Jayalatha, argued that the allegations against the petitioner are fabricated as the petitioner and his sister are in dispute over their family property and that the child is being used as a pawn to compel the petitioner to yield to her demands for partition of the family property. 

Counsel appearing on behalf of the victim, Advocate A. Parvathy Menon,  contented that the victim had been subjected to a sexual assault by her mother's own sibling, which came to her knowledge only when the child was subjected to counselling for her change in behaviour and therefore, the petitioner does not deserve any leniency and that the grant of pre-arrest bail would send a wrong signal to society.

However, the Additional Director General of Prosecution, Advocate Kuriakose, referring to the Apex Court decisions in Shri.Gurbaksh Singh Sibia and Others v. State of Punjab and Sushila Aggarwal and others v. State (NCT of Delhi) and Another submitted that limited custody of the petitioner would suffice the investigation. 

The court, while considering the contentions raised by both the parties, pointed out that there are no criminal antecedents against the petitioner and that the allegation of demand for partition of family property as the de facto complainant is in financial need cannot be ignored wholly. The court further remarked that the act of kissing and hugging alleged against the petitioner on one side, there is a possibility of such acts being manifestations of affection by an uncle; one cannot ignore the possibility of such show of 'affections' being coloured by sexual overtones. However, those are all matters for investigation. 

Referring to the Kerala High Court decision in X v. State of Kerala and Others (2021), Justice Thomas observed that in matters where sexual offences are alleged, that too against minor victims, it is necessary for the court to be sensitive to their plight. However, the allegations do not have to be accepted as the gospel truth in every case, and the court must be cautious of false allegations for the purpose of achieving ulterior objectives.

Since the liberty of the individual is at stake, the court being wary of depriving innocent persons of their liberty, allowed the per-arrest bail application with limited custody of four days for the petitioner to be subjected to interrogation. The court referred to the Apex Court decisions in Gurbakash Singh and Sushila Aggarwal cases, in which a balance was struck between the interests of the investigation into the alleged crime as well as the personal liberty by providing for the concept of limited custody of an accused. 

Case Title: XXXX v. State of Kerala and others

Citation: 2022 LiveLaw (Ker) 379

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