Sumitha Pradeep v. Arun Kumar C.K & Anr.

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 Meenan gadi 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 SUMITHA PRADEEP v. ARUN KUMAR C.K & ANR. No.1 is alleged to have sexually assaulted his 12 years old ni ece. 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 givi ng good performances both in curricular and co-curricular activiti es 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 t ime, she disclosed the unfortunate incident, she had faced from her mat ernal 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 grante d him conditional anticipatory bail on the following terms:- “12. Accordingly, I allow this application subject to the following conditions: (a) Petitioner shall appear before the Investigating Of ficer 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. (b) If after interrogation, the investigating Officer propo ses 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. (c) Petitioner shall appear before the Investigating Officer as and when required and shall also co-operate with the investigation. (d) Petitioner shall not intimidate or attempt to influe nce the witnesses; nor shall he tamper with the evidence or xx xx xx xx; 1015 (e) xx xx xx xx (f) 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 4 th 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 ther e are sufficient reasons to suspect that the sexual abuse as a lleged by the prosecution has taken place at the instance of the petitioner. The perpetrator is none other than a close rela tive of the victim, i.e., her maternal uncle. Statements of the victim given to the police as well as to the learned Magis trate disclose the fact that the incident took place in the hous e 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 no ne else was there. Bedroom of the petitioner is situat ed up the stairs of the house. All other inmates were in the down s tair portion of the house at the relevant time. Statements also sh ow that the petitioner attempted to disrobe the victim, ma de her to sit on his lap, touched her breasts, kissed her by hug ging and also attempted to kiss on her lips. It is further seen that when the petitioner attempted to remove her top, she star ted to raise cry and then, he released her. It is further s een that by making some kind of sexual comments, he tried to stimulat e sexual feelings in the child. Taking into account t he relationship between the victim and the petitioner and the manner in which the acts were committed, it is to be said t hat they are grievous in nature. 8. As rightly argued by the learned counsel for the petiti oner, there was delay of about 6 months in reporting the crime. But, mere delay is not a factor to disbelieve the prose cution SUMITHA PRADEEP v. ARUN KUMAR C.K & ANR. case. In Joy v. State of Kerala (2019(1) KLT 935), it has bee n held that mere delay in reporting the matter to the authorit ies concerned, especially sexual assault on a minor gir l 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 vict im 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 an other subject, secured B2 Grade. The incident occurred wh ile 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 rea son for the same in the first session. She was also found gloomy. Only in the second session of the counseling, she opene d up and disclosed the incident. Because of fear, she di d not disclose the incidents even to her mother. It is quite nat ural, since the perpetrator is the brother of her mother. Therefore, on the ground of delay, it cannot be said that the prosecutio n story is false. 9. An attempt is made by the learned counsel for the petition er to show that this case is a retaliatory step taken by the mother of the victim in view of the property disputes betw een 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 registe red 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., afte r 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 af ter 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 migh t have 1017 been initiated by the petitioner as an afterthought t o shield the prosecution in this crime. x x x x x 13. From the case diary I find prima facie materials in suppor t 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 whi le dealing with an application for bail. I have also con sidered the question as to whether custodial detention of the petiti oner is necessary. According to the petitioner, there is noth ing to be recovered and so custodial interrogation is not re quired. But learned counsel for the victim submits that the victim h as not gained normalcy even now and granting of bail w ould adversely affect her mental condition and may feel hel pless. Learned counsel also points out that the petitioner bei ng an advocate has high influence and hold in the society and in the police and he is likely to interfere with smoot h investigation. I find enough force in these submiss ions. If granting of bail is not in the interest of the victim, court has to refuse bail since the well being of the victim i s 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 pr esume commission of the offences by the accused unless the co ntrary is proved. Section 29 of the Act states that where a person is prosecuted for committing or abetting or attempting to co mmit any offence under Sections 3, 5, 7 and 9 of the Act, the Sp ecial Court shall presume, that such person has committed or abetted or attempted to commit the offence, as the case m ay SUMITHA PRADEEP v. ARUN KUMAR C.K & ANR. be, unless the contrary is proved. The court shall take into consideration the presumption under Section 29 of t he Act while dealing with an application for bail filed by a person who is accused of the aforesaid offences under the Act (See State of Bihar v. Rajballav Prasad, (2017) 2 SC C 178 : AIR 2017 SC 630). 11. However, the statutory presumption under Sectio n 29 of the Act does not mean that the prosecution version has to be accepted as gospel truth in every case. The presumption do es not mean that the court cannot take into considerati on the special features of a particular case. Patent absur dities or inherent infirmities or improbabilities in the pros ecution version may lead to an irresistible inference of fa lsehood in the prosecution case. The presumption would come into pla y only when the prosecution is able to bring on recor d facts that would form the foundation for the presumption. Otherwise, all that the prosecution would be required to do is to raise some allegations against the accused and t o claim that the case projected by it is true. The courts mus t be on guard to see that the application of the presumption, witho ut adverting to essential facts, shall not lead to any injustice. The presumption under Section 29 of the Act is not absolute. The statutory presumption would get activated or tri ggered only if the prosecution proves the essential basic facts. If the accused is able to create serious doubt on the veracity of the prosecution case or the accused brings on record ma terials which would render the prosecution version highly improbable, the presumption would get weakened. As held by the Apex Court in Siddharam Satlingappa Mhetre v. Sta te of Maharashtra, (2011) 1 SCC 694 : AIR 2011 SC 312, frivolity in prosecution should always be considered and in the event of there being some doubt as to the genuineness of the prosecution, in the normal course of events, the ac cused is entitled to an order of anticipatory bail. No infle xible guidelines or straitjacket formula can be provided for grant or refusal of anticipatory bail. It should necessari ly depend on facts and circumstances of each case in consonance w ith the legislative intention.” 1019 10. The High Court, while granting anticipatory bail to the respondent No. 1 herein (original accused), observed in para 9 of the impugned order something which has really disturbed us. Para 9 reads thus:- “9. With the above principle in mind, when the facts o f the case are noticed, it is revealed that the petitione r is the maternal uncle of the victim to whose house the victim went in December, 2021. On 14.12.2021, the victim is alleged to have been a sked to sit on the lap of the petitioner, who thereafter is alleged to have hugged and kissed the victim on her cheeks. Though on the one side, there is a possibility of such hugs and kisse s being manifestations of affection by an uncle, one cannot ignore the possibility of such show of ‘affections’ being colo ured by sexual overtones. However, those are all matters for investigat ion.” 11. 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 Sect ion 164 of the Code. 12. 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-han d to take the investigation to its logical conclusion. It goes withou t saying that appearance before the Investigating Officer who, has bee n 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. 13. The fact that the victim – girl is traumatized to s uch 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 pre-arrest bail. 14. It may be true, as pointed out by learned counsel appeari ng for Respondent No.1, that charge-sheet has already been filed. It will be unfair to presume on our part that the Investigating Office r does not require Respondent No.1 for custodial interrogation for the purpose of further investigation. SUMITHA PRADEEP v. ARUN KUMAR C.K & ANR. 15. Be that as it may, even assuming it a case where Respondent No.1 is not required for custodial interrogation, we are satisfied that the High Court ought not to have granted discretionary relief of anticipatory bail. 16. We are dealing with a matter wherein the original complainant (appellant herein) has come before this Court praying that the anticipatory bail granted by the High Court to the accused should be cance lled. To put it in other words, the complainant says that the High Court wrongly exercised its discretion while granting anticipatory bail to the accused in a very serious crime like POCSO and, therefore, the order p assed by the High Court granting anticipatory bail to the accused should be quashed and set aside. In many anticipatory bail matters, we have noticed one common argument being canvassed that no custodial interrogati on is required and, therefore, anticipatory bail may be granted. There appears to be a serious misconception of law that if no cas e for custodial interrogation is made out by the prosecution, then that alone would be a good ground to grant anticipatory bail. Custodial interrogati on can be one of the relevant aspects to be considered along with ot her grounds while deciding an application seeking anticipatory bail. T here may be many cases in which the custodial interrogation of the accused may not be required, but that does not mean that the 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 punishme nt. Custodial interrogation can be one of the grounds to decline anticipa tory bail. However, even if custodial interrogation is not required or necessitated, by itself, cannot be a ground to grant anticipatory bail. 17. Before we close this matter one more clarification is necessary. We have referred to the decision of the Kerala High Court rendered in the case of Joy (supra). The case of Joy (supra) deals with Section 29 of the POCSO Act. When the learned Judge decided the antic ipatory bail application, the decision of the coordinate Bench in the case of Joy (supra) was binding to him. He 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. However, witho ut looking into the dictum as laid in Joy (supra), the observations made by the High 1021 Court in para 9 of its impugned order referred to above could be said to be absolutely unwarranted and not one befitting a High Court. 18. 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. 19. For the reasons afore-stated, and without expressing any views on merits of the case, we allow this appeal; set aside th e impugned Judgment and Order dated 25-7-2022 passed by the High Court granting anticipatory bail to Respondent No.1. 20. Investigating Officer is granted liberty to proceed fur ther in accordance with law. 21. Suffice to say that law will take its own course. Devika Gujral Appeal allowed. SUMITHA PRADEEP v. ARUN KUMAR C.K & ANR.