Non-Requirement Of Custodial Interrogation Cannot Be A Ground To Grant Anticipatory Bail: SC Censures HC For Its Observations
The Supreme Court has held that the non-requirement of custodial interrogation by itself cannot be a ground to grant anticipatory bail.
The Court also censured the Kerala High Court for its observations in the order granting anticipatory bail in a case involving POCSO Act offences.
"Custodial interrogation can be one of the grounds to decline custodial interrogation. However, even if custodial interrogation is not required or necessitated, by itself, cannot be a ground to grant anticipatory bail.", the Court held.
The Court termed the observations of the High Court "totally unwarranted" and "not one befitting a High Court" and noted that the observations were 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.
The High Court had observed, "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."
The Bench of Justice Surya Kant and Justice JB Pardiwala observed that cases where custodial interrogation of the accused may not be required, does not mean that the prima facie case against the accused should be ignored and he should be granted anticipatory bail.
The Court further observed that there is 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.
The petitioner in this case was accused of offences under Sections 354A(1)(i),(ii) & (iv), 354 A(2) and 354A(3) of the IPC read with Sections 7, 8, 9 and 11 of the POCSO Act.
The Court noted thus "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."
The Court observed that 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 and 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 custodial interrogation. However, even if custodial interrogation is not required or necessitated, by itself, cannot be a ground to grant anticipatory bail.", the Court noted further.
The bench made these observations while setting aside the Kerala High Court's Order granting anticipatory bail to a man accused of sexually assaulting his 12 year old niece.
Advocates Gaurav Agrawal and Anu K. Joy appeared for the appellant whereas Advocates Raghenth Basant and Zehra Khan represented the Respondent.
The Court observed that the High Court ought not to have exercised its jurisdiction in granting protection against arrest to the accused.
"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 freehand 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.", the Court observed.
The Court allowed the appeal and set aside the Order granting anticipatory bail to the accused.
Cause Title- Sumitha Pradee v. Arun Kumar C.K & Anr.
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