Not A 'Show Of Affection By An Uncle': Supreme Court Sets Aside Anticipatory Bail Granted By Kerala HC To POCSO Accused

The Supreme Court said that it is really disturbed with some observations made by Kerala High Court in an order granting bail to a man accused of sexually assaulting his minor neice.

The Apex Court bench was referring to these observations made by the Kerala High Court : "Though on the one side, there is a possibility of such hugs and kisses 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."

"In our considered opinion, the observations made in Para 9 of the impugned order are totally unwarranted and have been made overlooking the specific allegations contained in the FIR, duly supported with 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 case, the accused is alleged to have sexually assaulted his 12 years old niece ; that he asked the victim to sit on his lap and thereafter he hugged her and kissed her on the cheeks and tried to kiss her on her lips ; that he attempted to disrobe the victim and made lewd comments. After an FIR was lodged in this matter, the accused approached the Special Court seeking anticipatory bail which was dismissed. Thereafter, he moved High Court seeking anticipatory bail. He was granted a conditional anticipatory bail. Aggreived with this, the mother of the girl approached the Apex Court.

In the order allowing appeal, the bench disapproved the observations made by the High Court. The court also observed that even if custodial interrogation is not required or necessitated, by itself, cannot be a ground to grant anticipatory bail. It observed:

In a case containing such serious allegations, the High Court ought not to have exercised its jurisdiction in granting protection against arrest, as the Investigating Officer deserves free­hand to take the investigation to its logical conclusion. It goes without saying that appearance before the Investigating Officer who, has been prevented from subjecting Respondent No.1 to custodial interrogation, can hardly be fruitful to find out the prima facie substance in the allegations, which are of extreme serious in nature....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.

The bench also noted that while dismissing the first anticipatory bail petition, the Special Judge had relied upon the decision of the Kerala High Court in the case of Joy v. State Of Kerala,(2019) 1 KLT 935, wherein it was observed that the courts shall take into consideration the presumption under Section 29 of the POCSO Act while dealing with an application for bail filed by a person who is accused of the offence under the Act. The bench obseved that the High Court could not have ignored a binding decision. It is a different thing to say that if he may disagree with the view taken and accordingly refer it to a larger Bench, the court said.

"We are not going into the issue of Section 29 of the POCSO Act in the present case. Even without the aid of Section 29 of the POCSO Act, we are convinced that the High Court committed a serious error in exercising its discretion in favour of the respondent No. 1 herein (original accused) while granting anticipatory bail.", the bench observed while allowing the appeal and setting aside the anticipatory bail order passed by the High Court.

Case details

X vs Arun Kumar CK | 2022 LiveLaw (SC) 870 | CrA 1834/2022 | 21 October 2022 | Justices Surya Kant and JB Pardiwala 

Click Here To Read/Download Order