Plea In Kerala High Court Challenges Grant Of Anticipatory Bail To 57 Yrs Old Man Accused Of Sexually Assaulting 7-Yr-Old

A plea has been moved in the Kerala High Court against the grant of anticipatory bail to a 57 years old man accused of sexually assaulting a minor aged 7 years. The plea has been moved by the mother of the minor victim.

The accused was alleged to have committed the offence in May, 2022. The petitioner averred that in spite of informing the police on the very next day of the incident, the FIR was not registered. The petitioner claims that it was only pursuant to the repeated enquiry from the side of the victim's family that the FIR was registered on July 21, 2023. 

The accused was thus booked for the offences under Sections 3 (penetrative sexual assault),4 (punishment for penetrative sexual assault),7 (Sexual Assault), and 8 (Punishment for Sexual Assault) of the Protection of Children from Sexual Offences Act (POCSO) and Sections 354 A (1)(i) (sexual harassment and punishment thereof) and 376 (punishment for rape) of the IPC. 

Meanwhile, the accused moved a plea for anticipatory bail before the Additional Sessions Judge, Kollam.

The Sessions Judge vide, its Order dated August 3, 2023, granted anticipatory bail to the accused on noting the delay caused in the registration of the case and that the same was only registered after the filing of the plea for anticipatory bail by the accused. 

"I am of the view that the delay caused in the registration of the case and that too the registration of the case after the filing of the present application creates serious suspicion about the prosecution case at this stage. Apart from that, the nature of allegations indicates that custodial interrogation of the petitioner will not be required. The petitioner is not shown to be having criminal antecedents. Any possibility of the petitioner fleeing from justice can be safely ruled out," the Sessions Court had observed while granting the anticipatory bail. 

The present plea by the mother of the victim girl avers that the Sessions Court granted the anticipatory bail to the accused without considering the severity of the offence. 

The petitioner further states that the Court below had not taken due note of Section 29 of the POCSO Act which states that, "Where a person is prosecuted for committing or abetting or attempting to commit any offence under sections 3, 5, 7 and section 9 of this Act, the Special Court shall presume, that such person has committed or abetted or attempted to commit the offence, as the case may be unless the contrary is proved". 

The petitioner further places reliance upon an Apex Court decision which lays down that, "The fact that the victim–girl is traumatized to such a high degree that her academic pursuits have been adversely impacted alone, coupled with the legislative intent especially reflected through Section 29 of the POCSO Act, are sufficient to dissuade a Court from exercising its discretionary jurisdiction in granting prearrest bail." [X vs Arun Kumar CK]. 

The petitioner avers that the accused is politically influenial and that he and his family members had threatened the petitioner and the victim's family on several instances. 

"It is submitted that granting bail in this situation would affect the case and cause problems for the victim. Being a politically influenced person and religious person he can destroy the evidence and influence the witness. If Annexures A2 anticipatory bail proceeds, there will be an irreparable loss and hardships will be resulted for the petitioners and the de facto complainant," the plea states. 

The petitioner thus seeks the anticipatory bail granted to the accused to be cancelled and to quash the Session's Court order in this regard. It also seeks the issuance of directions to the Kadakkal police to take necessary steps to conduct the investigation in the matter. 

During the hearing on Thursday, the Single Judge Bench of Justice K. Babu was of the opinion that the Court below had considered relevant materials while granting the anticipatory bail. "What I understand is the Court below has gone through relevant materials to grant the bail," it orally remarked. 

The Court then proceeded to direct the respondent-accused to file a counter in the matter.

The plea has been moved through Advocates Sreeraj M.D., Bhanu Thilak, and Vishnupriya M.V. 

Case Title: XXX v. State of Kerala & Ors. 

Case Number: Crl.MC 6578 of 2023