Document Fragment View

Matching Fragments

5

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.” 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.

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.

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.

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 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.