SUMITHA PRADEEP versus ARUN KUMAR C.K & ANR.
[2022] 14 S.C.R. 1012, Supreme Court of India, 2022
Outcome: Appeal(s) allowed (Granted)
Segment: Facts
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SUMITHA PRADEEP
v.
ARUN KUMAR C.K & ANR.
(Criminal Appeal No. 1834 of 2022)
OCTOBER 21, 2022
[SURYA KANT AND J. B. PARDIWALA, JJ.]
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
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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
SUMITHA PRADEEP v. ARUN KUMAR C.K & ANR.
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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)
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.
(b)
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.
(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 influence the
witnesses; nor shall he tamper with the evidence or
xx xx xx xx;
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(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 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
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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
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been initiated by the petitioner as an afterthought to shield
the prosecution in this crime.
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
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be, unless the contrary is proved. The court shall take into
consideration the presumption under Section 29 of the 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 SCC 178 :
AIR 2017 SC 630).
11. However, the statutory presumption under Section 29 of
the Act does not mean that the prosecution version has to be
accepted as gospel truth in every case. The presumption does
not mean that the court cannot take into consideration the
special features of a particular case. Patent absurdities or
inherent infirmities or improbabilities in the prosecution
version may lead to an irresistible inference of falsehood in
the prosecution case. The presumption would come into play
only when the prosecution is able to bring on record 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 to claim
that the case projected by it is true. The courts must be on
guard to see that the application of the presumption, without
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 triggered
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 materials
which would render the prosecution version highly
improbable, the presumption would get weakened. As held by
the Apex Court in Siddharam Satlingappa Mhetre v. State 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 accused is
entitled to an order of anticipatory bail. No inflexible
guidelines or straitjacket formula can be provided for grant
or refusal of anticipatory bail. It should necessarily depend
on facts and circumstances of each case in consonance with
the legislative intention.”
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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 of the
case are noticed, it is revealed that the petitioner 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 asked 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 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.”
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 Section 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-hand 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.
13. 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 pre-arrest bail.
14. It may be true, as pointed out by learned counsel appearing
for Respondent No.1, that charge-sheet has already been filed. It will be
unfair to presume on our part that the Investigating Officer does not
require Respondent No.1 for custodial interrogation for the purpose of
further investigation.
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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 cancelled. 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 passed 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 interrogation is
required and, therefore, anticipatory bail may be granted.  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. There 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 punishment. Custodial
interrogation can be one of the grounds to decline anticipatory 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 anticipatory
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, without looking
into the dictum as laid in Joy (supra), the observations made by the High
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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 the 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 further 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.