SUMITHA PRADEEPversusARUN KUMAR C.K & ANR.

1012                     [2022] REPORTS
                SUPREME COURT   14 S.C.R. 1012             [2022] 14 S.C.R.


 A                            SUMITHA PRADEEP
                                         v.
                          ARUN KUMAR C.K & ANR.
                        (Criminal Appeal No. 1834 of 2022)
 B                             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
 C
       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
 D     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
 E
       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
 F     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
 G
       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
 H     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              A
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
                                                                               B
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                                    C
(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                D
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                    E
Respondents.
      The following Order of the Court was passed:
                               ORDER
      1. Leave granted.                                                        F
        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       G
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
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1014               SUPREME COURT REPORTS                       [2022] 14 S.C.R.


 A     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
 B
       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
 C     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.
 D           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:
 E           (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
 F                   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
 G                   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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      SUMITHA PRADEEP v. ARUN KUMAR C.K & ANR.                              1015


      (e)    xx xx xx xx                                                    A
      (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    B
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:-            C
      “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     D
      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          E
      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       F
      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        G
      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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1016     SUPREME COURT REPORTS                       [2022] 14 S.C.R.


 A     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
 B
       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
 C     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
 D
       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,
 E     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.
 F     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
 G     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
 H     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            A
      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                B
      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.             C
      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                     D
      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   E
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.        F
      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            G
      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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1018     SUPREME COURT REPORTS                       [2022] 14 S.C.R.


 A     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).
 B
       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
 C     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.
 D     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.
 E     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
 F     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
 G     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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      SUMITHA PRADEEP v. ARUN KUMAR C.K & ANR.                                1019


       10. The High Court, while granting anticipatory bail to the            A
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          B
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                C
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     D
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           E
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.                                             F
        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.                   G
       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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1020             SUPREME COURT REPORTS                         [2022] 14 S.C.R.


 A             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
 B     (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
 C     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
 D     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
 E     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.
 F     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
 G     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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       SUMITHA PRADEEP v. ARUN KUMAR C.K & ANR.                                  1021


Court in para 9 of its impugned order referred to above could be said to         A
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     B
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.                                            C
      20. Investigating Officer is granted liberty to proceed further in
accordance with law.
       21. Suffice to say that law will take its own course.

                                                                                 D
Devika Gujral                                                  Appeal allowed.




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