Anticipatory bail in pocso case to father & grandfather

Court: Kerala High Court

Bench: Justice P.V. Kunhikrishnan

xxxxxxxxx Versus xxxxxxxx on 16 December 2024

Law Point: Anticipatory bail in pocso case to father & grandfather

JUDGEMENT

1. These Bail Applications are filed under Section 482 of Bharatiya Nagarik Suraksha Sanhita.

2. These two bail applications are connected, and therefore, I am disposing of these Bail Applications by a common order. The petitioner in these cases is the accused in Crime Nos. 1486 of 2024 and 1487 of 2024 of Medical College Police Station, Thiruvananthapuram. These two cases are registered alleging offences punishable under Sections 9 and 10 of the Protection of Children from Sexual Offences (POCSO) Act.

3. The alleged victims in these cases are the granddaughters of the petitioner. It is alleged that the petitioner asked the minor children to wash his body after he use the toilet.

4. Heard the learned counsel for the petitioner and the learned Public Prosecutor.

5. The learned counsel for the petitioner submits that there is a series of litigation between the son of the petitioner and his wife. The victims in these cases are the children of his son. It is submitted that the petitioner’s son was working as Lieutenant Colonel in Indian Army. His marriage was conducted in 2013. The dispute between the petitioner’s son and his wife started from 2019 onwards. A series of incidents are narrated in the Bail Applications. The custody applications were also moved by the petitioner’s son. Thus, interim custody was given to the petitioner’s son. The alleged incident happened when the interim custody was given to the petitioner’s son. According to the learned counsel, this is a false case foisted against the petitioner.

6. Applications. The learned Public Prosecutor opposed the Bail

7. This Court perused the facts narrated in the Bail Applications and also considered the facts and circumstances of the case. Admittedly, there are some matrimonial disputes pending between the petitioner’s son and his wife. The victims in these cases are the children born in the wedlock between the son of the petitioner and his wife. The alleged incident happened when the interim custody was given to the son of the petitioner by the Family Court. The offences alleged is under Sections 9 and 10 of the POCSO Act. The maximum punishment that can be imposed under Section 10 is 7 years. The petitioner has a definite case that it is a false case foisted for taking advantage in the custody matter. I do not want to make any observation about the same. The petitioner is a 72 year old

man, and it is stated that he is suffering from different illnesses. Annexure-D is produced to prove the same.

8. Considering the facts and circumstances of the case, I think bail can be granted to the petitioner after imposing stringent conditions.

9. Moreover, it is a well accepted principle that the bail is the rule and the jail is the exception. The Hon’ble Supreme Court in Chidambaram. P V Directorate of Enforcement [2019 (16) SCALE 870], after considering all the earlier judgments, observed that, the basic jurisprudence relating to bail remains the same inasmuch as the grant of bail is the rule and refusal is the exception so as to ensure that the accused has the opportunity of securing fair trial.

10. Recently the Apex Court in Siddharth v State of Uttar Pradesh and Another [2021(5)KHC 353] considered the point in detail. The relevant paragraph of the above judgment is extracted hereunder.

“12. We may note that personal liberty is an important aspect of our constitutional mandate. The occasion to arrest an accused during investigation arises when custodial investigation becomes necessary or it is a heinous crime or where there is a possibility of influencing the witnesses or accused may abscond. Merely because an arrest can be made because it is lawful does not mandate that arrest must be made. A distinction must be made between the existence of the power to arrest and the justification for exercise of it. (Joginder Kumar v. State of UP and Others (1994 KHC 189: (1994) 4 SCC 260: 1994 (1) KLT 919: 1994 (2) KLJ 97: AIR 1994 SC 1349: 1994 CriLJ 1981)) If arrest is made routine, it can cause incalculable harm to the reputation and self-esteem of a person. If the Investigating Officer has no reason to believe that the accused will abscond or disobey summons and has, in fact, throughout cooperated with the investigation we fail to appreciate why there should be a compulsion on the officer to arrest the accused.”

11. In Manish Sisodia v. Central Bureau of Investigation [2023 KHC 6961], the Apex Court observed that even if the allegation is one of grave economic offence, it is not a rule that bail should be denied in every case.

12. Considering the dictum laid down in the above decision and considering the facts and circumstances of this case, this Bail Application is allowed with the following directions:

1. The petitioner shall appear before the Investigating Officer within two weeks from today and shall undergo interrogation.

2. After interrogation, if the Investigating Officer propose to arrest the petitioner, he shall be released on bail on executing a bond for a sum of Rs.50,000/-(Rupees Fifty Thousand only) with two solvent sureties each for the like sum to the satisfaction of the arresting officer concerned.

3. The petitioner shall appear before the Investigating Officer for interrogation as and when required. The petitioner shall co-operate with the investigation and shall not, directly or indirectly make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to any police officer.

4. Petitioner shall not leave India without permission of the jurisdictional Court.

5. Petitioner shall not commit an offence similar to the offence of which he is accused, or suspected, of the commission of which he is suspected.

6. If any of the above conditions are violated by the petitioner, the jurisdictional Court can cancel the bail in accordance to law, even though the bail is granted by this Court. The prosecution and the victim are at liberty to approach the jurisdictional Court to cancel the bail, if any of the above conditions are violated.

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