Supreme Court Cancels Anticipatory Bail in POCSO Case: Sumitha Pradeep vs. Arun Kumar C.K. (21 October 2022)

Date of the Judgment: 21st October 2022

Citation: 2022 INSC 924

Judges: Surya Kant, J. and J.B. Pardiwala, J.

Can a High Court grant anticipatory bail to an accused in a case involving serious allegations of sexual assault on a minor, especially when the Special Court has refused bail? The Supreme Court of India addressed this critical question in the case of Sumitha Pradeep vs. Arun Kumar C.K. & Anr. The court examined whether the High Court of Kerala was correct in granting anticipatory bail to the accused, who was the maternal uncle of the 12-year-old victim, despite serious allegations under the POCSO Act. The bench comprised of Justice Surya Kant and Justice J.B. Pardiwala.

Case Background

The case involves a 12-year-old girl who was allegedly sexually assaulted by her maternal uncle, Respondent No. 1, on 14th December 2021. The allegations include that the respondent asked the victim to sit on his lap, hugged and kissed her on the cheeks, attempted to kiss her on the lips, tried to disrobe her, and made lewd comments. The victim, who was previously an excellent student, experienced a significant decline in her academic performance and became traumatized. After initial reluctance, she disclosed the incident during a second counseling session. Subsequently, a First Information Report (FIR) was registered, and her statement was recorded under Section 164 of the Code of Criminal Procedure, 1973. The Special Judge, Sessions Division, Kalpetta, Wayanad, declined anticipatory bail to the respondent. However, the High Court of Kerala granted him conditional anticipatory bail, which led to the victim’s mother appealing to the Supreme Court.

Timeline:

Course of Proceedings

The respondent initially sought anticipatory bail from the Sessions Court, which was denied. Subsequently, the High Court of Kerala granted conditional anticipatory bail. The Special Judge, while declining anticipatory bail, noted the seriousness of the allegations and the victim’s trauma. The High Court, however, granted bail, observing that the alleged acts could be interpreted as normal affection, which was deemed unwarranted by the Supreme Court.

Legal Framework

The case involves several key legal provisions:

• Sections 354A(1)(i), (ii), & (iv), 354A(2), and 354A(3) of the Indian Penal Code, 1860: These sections deal with sexual harassment and related offenses. Specifically, Section 354A(1) defines sexual harassment, Section 354A(2) deals with punishment for sexual harassment, and Section 354A(3) deals with the offense of making sexually coloured remarks.
• Sections 7, 8, 9, and 11 of the Protection of Children from Sexual Offences Act, 2012 (POCSO Act): These sections relate to offenses of sexual assault and aggravated sexual assault against children. Section 7 deals with sexual assault, Section 8 deals with punishment for sexual assault, Section 9 deals with aggravated sexual assault, and Section 11 deals with punishment for aggravated sexual assault.
• Section 29 of the POCSO Act: This section establishes a presumption of guilt against the accused in cases under Sections 3, 5, 7, and 9 of the Act, unless the contrary is proved. The court shall presume that such person has committed or abetted or attempted to commit the offence, as the case may be, unless the contrary is proved.
• Section 164 of the Code of Criminal Procedure, 1973: This section deals with the recording of confessions and statements before a magistrate.

The POCSO Act is a special law enacted to protect children from sexual abuse and exploitation. Section 29 of the POCSO Act creates a statutory presumption against the accused, reflecting the legislature’s intention to prioritize the protection of children.

Arguments

The arguments presented before the Supreme Court can be summarized as follows:

• Appellant (Victim’s Mother):
  • The High Court erred in granting anticipatory bail, especially given the serious nature of the allegations and the victim’s trauma.
  • The High Court’s observation that the acts could be a manifestation of affection was unwarranted and overlooked the specific allegations and the victim’s statement under Section 164 of the Code of Criminal Procedure, 1973.
  • The legislative intent behind the POCSO Act, particularly Section 29, should be considered.
  • Custodial interrogation is necessary for a thorough investigation, and the High Court’s order has hindered this process.
• Respondent (Accused):
  • The respondent argued that no custodial interrogation was required, and therefore, anticipatory bail should be granted.
  • The respondent also tried to show that the case is a retaliatory step taken by the mother due to property disputes.
  • The respondent relied on the fact that a charge sheet has been filed.

The appellant argued that the High Court’s observations were inappropriate, especially given the seriousness of the allegations and the legislative intent behind the POCSO Act. The respondent argued that since no custodial interrogation was required, anticipatory bail should be granted, and that the case was a result of property disputes.

Issues Framed by the Supreme Court

The Supreme Court addressed the following key issue:

1. Whether the High Court was justified in granting anticipatory bail to the accused in a case involving serious allegations of sexual assault on a minor under the POCSO Act, especially when the Special Court had declined such relief.

Treatment of the Issue by the Court

The following table demonstrates how the Court decided the issue:

Authorities

The Supreme Court considered the following authorities:

Judgment

The Supreme Court overturned the High Court’s decision, emphasizing that the primary consideration for granting anticipatory bail should be the prima facie case against the accused and the seriousness of the offense, not merely the need for custodial interrogation. The Court noted that the High Court’s observations about the acts being manifestations of affection were unwarranted and overlooked the seriousness of the allegations, the victim’s trauma, and the legislative intent of the POCSO Act.

How each authority was viewed by the Court?

• Joy v. State of Kerala (2019) 1 KLT 935: The Supreme Court noted that the High Court was bound by this decision, which emphasized the presumption under Section 29 of the POCSO Act. However, the Supreme Court clarified that even without relying on Section 29, the High Court’s decision to grant anticipatory bail was erroneous.
• State of Bihar v. Rajballav Prasad, (2017) 2 SCC 178: This case was referred to by the Kerala High Court in Joy v. State of Kerala (2019) 1 KLT 935, and was considered in the context of the presumption under Section 29 of the POCSO Act.
• Siddharam Satlingappa Mhetre v. State of Maharashtra, (2011) 1 SCC 694: This case was referred to by the Kerala High Court in Joy v. State of Kerala (2019) 1 KLT 935, and was considered in the context of frivolity in prosecution while granting bail.

What weighed in the mind of the Court?

The Supreme Court’s decision was primarily influenced by the following factors:

• Seriousness of the Allegations: The Court emphasized the gravity of the sexual assault allegations against a minor, highlighting the need for a thorough investigation.
• Trauma of the Victim: The Court acknowledged the significant trauma suffered by the victim, which was evident from her academic decline and emotional distress.
• Legislative Intent of POCSO Act: The Court underscored the protective nature of the POCSO Act and the importance of considering the presumption under Section 29.
• Prima Facie Case: The Court reiterated that the existence of a prima facie case against the accused is a crucial factor in deciding anticipatory bail applications.
• Misconception about Custodial Interrogation: The Court clarified that the absence of a need for custodial interrogation is not the sole determinant for granting anticipatory bail.

Fact:Law Ratio

The Supreme Court’s reasoning was a mix of factual considerations (seriousness of the allegations, trauma of the victim) and legal considerations (legislative intent of the POCSO Act, interpretation of Section 29, and the principles governing anticipatory bail). The court gave more weight to the factual aspects of the case, as can be seen from the fact:law ratio.

The Supreme Court’s reasoning was a mix of factual considerations (seriousness of the allegations, trauma of the victim) and legal considerations (legislative intent of the POCSO Act, interpretation of Section 29, and the principles governing anticipatory bail). The court gave more weight to the factual aspects of the case, as can be seen from the fact:law ratio.

The Supreme Court emphasized that the High Court’s observations in para 9 of the impugned order were unwarranted. The High Court had stated:

“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 Supreme Court found this observation inappropriate, stating that the High Court should not have overlooked the specific allegations in the FIR and the victim’s statement under Section 164 of the Code of Criminal Procedure, 1973.

The Court also clarified that while custodial interrogation is a factor, it is not the only factor to be considered while granting anticipatory bail. The Court stated:

“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 Court further stated:

“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.”

The Supreme Court’s decision was unanimous, with both judges concurring on the judgment.

Key Takeaways

• In cases under the POCSO Act, the seriousness of the allegations and the trauma of the victim are paramount considerations.
• The existence of a prima facie case against the accused is a crucial factor in deciding anticipatory bail applications.
• The absence of a need for custodial interrogation is not the sole determinant for granting anticipatory bail.
• High Courts must exercise caution while granting anticipatory bail in POCSO cases and should not make observations that undermine the seriousness of the allegations.
• The legislative intent of the POCSO Act, particularly the presumption under Section 29, should be given due weight.

Directions

The Supreme Court set aside the High Court’s order granting anticipatory bail to Respondent No. 1. The Investigating Officer was granted the liberty to proceed further in accordance with the law.

Development of Law

This judgment reinforces the importance of considering the seriousness of the allegations and the victim’s trauma in POCSO cases, rather than solely focusing on the need for custodial interrogation. It clarifies that the presumption under Section 29 of the POCSO Act is a significant factor, and that the existence of a prima facie case is paramount. The ratio decidendi of the case is that in cases involving serious allegations under the POCSO Act, especially when the victim is a minor, the High Court should not grant anticipatory bail if there is a prima facie case against the accused, and the seriousness of the allegations and the trauma of the victim should be given paramount consideration. This decision reinforces the protective nature of the POCSO Act and provides guidance to the lower courts on the principles to be followed while dealing with anticipatory bail applications in POCSO cases.

Conclusion

The Supreme Court’s decision in Sumitha Pradeep vs. Arun Kumar C.K. & Anr. sets a significant precedent in cases involving the POCSO Act. By canceling the anticipatory bail granted by the High Court, the Supreme Court emphasized the need to prioritize the protection of children and the seriousness of sexual assault allegations. The judgment clarifies that the absence of a need for custodial interrogation is not the sole criterion for granting anticipatory bail, and that the existence of a prima facie case and the legislative intent of the POCSO Act are crucial factors. This ruling serves as a reminder of the judiciary’s commitment to safeguarding the rights and well-being of children.