SUMITHA PRADEEP v. ARUN KUMAR C.K & Anr.

Anticipatory bail: Case filed against respondent no.1 under ss.354(1)(i), (ii) and (iv), 354A(2) and 354A(3) IPC /w ss.7, 8, 9 and 11 of POCSO Act – Allegation against respondent no.1 was that he sexually assaulted his 12 years old niece – He asked the victim to sit on his lap and thereafter hugged her and kissed her on the cheeks and tried to kiss her on her lips – He further attempted to disrobe her and made lewd comments – The incident traumatized the victim to an extent that she slumped down in her course and performance although she was an excellent student giving good performances – She was taken to counselling but did not open up – In second counselling session, she disclosed the unfortunate incident – Thereafter, FIR was registered against respondent no.1 – Respondent no.1 approached Sessions Court but was declined the anticipatory bail, however High Court granted protection of anticipatory bail – Instant appeal by victim’s mother – Held: 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 free hand to take the investigation to its logical conclusion – The fact that the victim was traumatized to such a high degree that her academic pursuits were adversely impacted alone, coupled with the legislative intent especially reflected through s.29 of the POCSO Act, are sufficient to dissuade a Court from exercising its discretionary jurisdiction in granting pre-arrest bail – There appears to be a serious misconception of law that if no case for custodial interrogation is made out by the prosecution, then that alone would be a good ground to grant anticipatory bail – Custodial interrogation can be one of the relevant aspects to be considered along with other grounds while deciding an application seeking anticipatory bail – However, even if custodial interrogation is not required or necessitated by itself cannot be ground to grant anticipatory bail – There may be many 1012 SUMITHA PRADEEP v. ARUN KUMAR C.K & ANR. 1013 cases in which the custodial interrogation of the accused may not be required, but that would not mean that prima facie case against the accused should be ignored or overlooked and he should be granted anticipatory bail – The first and foremost thing that the court hearing an anticipatory bail application should consider is the prima facie case put up against the accused – Thereafter, the nature of the offence should be looked into along with the severity of the punishment – In the facts of this case, High Court ought not to have granted discretionary relief of anticipatory bail. Joy v. State of Kerala (2019) 1 KLT 935 – referred to. Case Law Reference (2019) 1 KLT 935 referred to Para 8 CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 1834 of 2022. From the Judgment and Orders dated 25.07.2022 of the High Court of Kerala at Ernakulam in Bail Appl. No. 5271 of 2022. Gaurav Agrawal, Ms. Anu K. Joy, Alim Anvar, Arvind Gupta, Advs. for the Appellant. Raghenth Basant, Ms. Zehra Khan, Ajay Krishna, Harshad V. Hameed, Dileep Poolakkot, Mrs. Ashly Harshad, Advs. for the Respondents. The following Order of the Court was passed: O R D E R

#1. Leave granted.

#2. The appellant is the mother of the victim who is a 12 years old girl child.

#3. The appellant is aggrieved by the Order dated 25-7-2022 passed by the High Court of Kerala at Ernakulam, whereby Respondent No.1 has been granted protection of anticipatory bail in Crime No.442 of 2022 dated 27-5-2022 registered at Police Station Meenangadi District Wayanad under Sections 354A(1)(i),(ii) & (iv), 354 A-(2) and 354-A(3) of the Indian Penal Code read with Sections 7, 8, 9 and 11 of the Protection of Children from Sexual Offences Act, 2012 (for short, ‘POCSO Act’). The occurrence allegedly took place on 14-12-2021 when Respondent A B C D E F G H 1014 SUPREME COURT REPORTS [2022] 14 S.C.R. No.1 is alleged to have sexually assaulted his 12 years old niece. The allegations are that Respondent No.1 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. He further attempted to disrobe the victim and made lewd comments. The victim was an excellent student giving good performances both in curricular and co-curricular activities but the incident traumatized her to an extent that she slumped down in her course and performance. She was taken to counselling but did not open up. The victim was taken for second counselling session and at that time, she disclosed the unfortunate incident, she had faced from her maternal uncle, namely, Respondent No.1. Thereafter, the subject First Information Report was immediately registered; medical examination was conducted and Statement of the victim under Section 164 of the Code of Criminal Procedure, 1973 was recorded. Apprehending his arrest, Respondent No.1 approached the learned Sessions Court but was declined anticipatory bail.

#4. Thereafter, Respondent No.1 approached the High Court and vide impugned Order dated 25-7-2022, the said Court granted him conditional anticipatory bail on the following terms:- “12. Accordingly, I allow this application subject to the following conditions: (a) (b) (c) (d) Petitioner shall appear before the Investigating Officer from 9 am to 6 pm on 29.07.2022, 30.07.2022, 01.08.2022 and 02.08.2022 and shall subject himself to interrogation. If after interrogation, the investigating Officer proposes to arrest the petitioner, then he shall be released on bail on him executing a bond for Rs.50,000/- (Rupees fifty thousand only) with two solvent sureties each for the like sum before the Investigating Officer. Petitioner shall appear before the Investigating Officer as and when required and shall also co-operate with the investigation. Petitioner shall not intimidate or attempt to influence the witnesses; nor shall he tamper with the evidence or xx xx xx xx; A B C D E F G H SUMITHA PRADEEP v. ARUN KUMAR C.K & ANR. 1015 (e) (f) xx xx xx xx xx xx xx”

#5. The mother of the victim child being aggrieved has approached this Court.

#6. We have heard learned counsel for the parties and gone through the record.

#7. The Special Judge, Sessions Division, Kalpetta, Wayanad, while declining to grant anticipatory bail as prayed for by the respondent No 1 herein (original accused) vide order dated 4th of July, 2022 passed in Criminal Miscellaneous Case No. 512 of 2022, observed as under:- “7. A careful perusal of the case diary shows that there are sufficient reasons to suspect that the sexual abuse as alleged by the prosecution has taken place at the instance of the petitioner. The perpetrator is none other than a close relative of the victim, i.e., her maternal uncle. Statements of the victim given to the police as well as to the learned Magistrate disclose the fact that the incident took place in the house of the petitioner while the victim and her mother paid a visit and stayed there for some days. The statements also show that the incident occurred in the bedroom of the petitioner while none else was there. Bedroom of the petitioner is situated up the stairs of the house. All other inmates were in the down stair portion of the house at the relevant time. Statements also show that the petitioner attempted to disrobe the victim, made her to sit on his lap, touched her breasts, kissed her by hugging and also attempted to kiss on her lips. It is further seen that when the petitioner attempted to remove her top, she started to raise cry and then, he released her. It is further seen that by making some kind of sexual comments, he tried to stimulate sexual feelings in the child. Taking into account the relationship between the victim and the petitioner and the manner in which the acts were committed, it is to be said that they are grievous in nature.

#8. As rightly argued by the learned counsel for the petitioner, there was delay of about 6 months in reporting the crime. But, mere delay is not a factor to disbelieve the prosecution A B C D E F G H 1016 SUPREME COURT REPORTS [2022] 14 S.C.R. A B C D E F G H case. In Joy v. State of Kerala (2019(1) KLT 935), it has been held that mere delay in reporting the matter to the authorities concerned, especially sexual assault on a minor girl is immaterial and it would not be fatal to the prosecution case. Moreover, the case diary clearly shows a good reason for the delay. Materials show that after the incident, the victim fell aback in her studies and appeared gloomy. A copy of her educational report has been made available. It shows that in her 6th standard, she secured Grade A1 or Grade A2 in all the subjects. But, in 7th standard, her performance had fallen down drastically. She secured C1 or C2 Grade in most of the subjects and in one subject, she secured B1 and in another subject, secured B2 Grade. The incident occurred while she was studying in 7th standard. Worried about her educational fall down, her parents consulted a counselor at Eranakulam. Statement of the counselor shows that the child was continuously weeping and was not ready to disclose the reason for the same in the first session. She was also found gloomy. Only in the second session of the counseling, she opened up and disclosed the incident. Because of fear, she did not disclose the incidents even to her mother. It is quite natural, since the perpetrator is the brother of her mother. Therefore, on the ground of delay, it cannot be said that the prosecution story is false.

#9. An attempt is made by the learned counsel for the petitioner to show that this case is a retaliatory step taken by the mother of the victim in view of the property disputes between them. He relies on a crime registered as No.454/2022 of Meenangadi Police Station, wherein, the mother and stepfather of the child are accused. That F.I.R. was registered for the offences punishable under Sections 447, 323, 324, 354A(1)(i), 354A(1)(ii), 307 and 211 r/w 34 of IPC. But, that crime was registered only on 09.06.2022. i.e., after the registration of this crime. Moreover, the printout of “Watsapp” chats produced by the petitioner containing the chats between himself and the stepfather of the victim would go to show that there was no such discordiality between them even after the date of incident alleged in F.I.R. No.442/2022. So, there is every reason to believe that F.I.R. No.442/2022 might have SUMITHA PRADEEP v. ARUN KUMAR C.K & ANR. 1017 been initiated by the petitioner as an afterthought to shield the prosecution in this crime. A x x x x x

#13. From the case diary I find prima facie materials in support of the prosecution case. If so, as held in Joy v. State of Kerala (2019 (1) KLT 935) presumption under Sec. 29 of the PoCSO Act is also to be taken into consideration by the courts while dealing with an application for bail. I have also considered the question as to whether custodial detention of the petitioner is necessary. According to the petitioner, there is nothing to be recovered and so custodial interrogation is not required. But learned counsel for the victim submits that the victim has not gained normalcy even now and granting of bail would adversely affect her mental condition and may feel helpless. Learned counsel also points out that the petitioner being an advocate has high influence and hold in the society and in the police and he is likely to interfere with smooth investigation. I find enough force in these submissions. If granting of bail is not in the interest of the victim, court has to refuse bail since the well being of the victim is also a relevant factor in PoCSO cases.”

#8. From the aforesaid, it is pertinent to note that the Special Judge relied upon the decision of the Kerala High Court in the case of Joy v. State Of Kerala,(2019) 1 KLT 935, wherein the Kerala High Court has taken the view 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.

#9. In the case of Joy (supra), the Kerala High Court observed as under:- “10. This court is not oblivious to Section 29 of the Act which contains a legislative mandate that the court shall presume commission of the offences by the accused unless the contrary is proved. Section 29 of the Act states that where a person is prosecuted for committing or abetting or attempting to commit any offence under Sections 3, 5, 7 and 9 of the Act, the Special Court shall presume, that such person has committed or abetted or attempted to commit the offence, as the case may B C D E F G H 1018 SUPREME COURT REPORTS [2022] 14 S.C.R.