The Supreme Court in the case X vs Arun Kumar CK stated that it is really disturbed with some observations made by Kerala High Court in an order of granting bail to a man who is being accused of sexually assaulting his minor niece.
The observations made by the Kerala High Court was referred by the Apex Court bench, it observed that though on the one side, there is a possibility of such hugs and kisses being manifestations of affection by an uncle and one cannot ignore the possibility of such show of ‘affections’ being coloured by sexual overtones. These all matters are for investigation.
The bench comprising of Justice Surya Kant and Justice JB Pardiwala observed and is of a considered view that these observations made in Para 9 of the impugned order are totally unwarranted and have been made overlooking the specific allegations contained in the FIR and is being duly supported with the Statement of the victim – girl child under Section 164 of the Code.
In the present case, it is alleged by accused to have sexually assaulted his 12 years old niece, it stated that he had he asked the victim to sit on his lap and thereafter he hugged her and has kissed her on the cheeks and has tried to kiss her on her lips ; that he attempted to disrobe the victim and made lewd comments. In the matter, after the FIR was lodged, the accused approached the Special Court seeking anticipatory bail which was dismissed. Thus, he approached the High Court seeking anticipatory bail. He was granted a conditional anticipatory bail and aggrieved with the same, the mother of the accused approached the Apex Court.
While allowing appeal, the observations made by the High Court was disapproved by the bench. The bench also disapproved that even if custodial interrogation is not required or necessitated, by itself, cannot be a ground to grant anticipatory bail.
The bench observed that in case where serious allegations are made, the High Court ought not to have exercised its jurisdiction in granting protection against arrest, as the Investigating Officer deserves freehand for taking the investigation to its logical conclusion. The same goes without saying that appearance before the Investigating Officer who, has been prevented from subjecting Respondent No.1 to custodial interrogation and can hardly be fruitful for finding out the prima facie substance in the allegations, which being of extreme serious in nature….The fact being that the victim – girl is traumatized to such a high degree that her academic pursuits have been adversely impacted alone, being coupled with the legislative intent especially reflected through Section 29 of the POCSO Act and are sufficient to dissuade a Court from exercising its discretionary jurisdiction for granting prearrest bail.
while dismissing the first anticipatory bail petition, the bench noted that it had relied by the Special Judge upon the decision of the Kerala High Court in the case of Joy v. State Of Kerala, wherein the court observed that the courts shall take into consideration the presumption under Section 29 of the POCSO Act, 2012 while dealing with an application for bail filed by a person who is accused of the offence under the POSCO Act.
Adding to it, the bench observed that the High Court could not have ignored a binding decision and it being a different thing to say that if he may disagree with the view taken and is referring to a larger bench
Accordingly, the court stated that this court is not going into the issue of Section 29 of the POCSO Act in the present case and the court is convinced that the High Court committed a serious error while exercising its discretion in favour of the respondent No. 1 herein (original accused) while granting anticipatory bail, even without the aid of Section 29 of the POCSO Act.
