Adithyan. R. vs State Of Kerala

A. Badharudeen, J

This is a petition filed under Section 438 of the Code of Criminal Procedure, seeking pre-arrest bail and the petitioner is the sole accused in crime No.1/2024 of Kochi Metro Police Station, Ernakulam.

Heard the learned counsel for the petitioner as well as the learned Public Prosecutor. Perused the relevant materials available.

The prosecution allegation is that the accused herein, on a day in the month of July, 2023 subjected the defacto complainant, aged 17 years to sexual intercourse at ‘Hi bye Entertainments’, Ernakulam and thereafter, on two occasions during the month of August, 2023 at the house of the accused, on the promise of marriage. Thereby, the prosecution alleges commission of offences punishable under Sections 354, 354(A)(1)(i), 376(2)(n) of IPC and Sections 3(a) read with 4, 5(1) read with 6, 7 read with 8 of Protection of Children from Sexual Offences Act (hereinafter referred to as the ‘POCSO Act’ for short).

The learned counsel for the petitioner canvased anticipatory bail to the petitioner/accused and submitted that the petitioner is innocent and the sexual intercourse, if any, was the outcome of love affair maintained in between the victim and the accused, while they were studying in 10th standard at S.N. Trust Central School, Kanichukulangara. Therefore, the sexual intercourse was the outcome of consent at the instance of the defacto complainant. The learned counsel learned counsel for the petitioner argued further that, in case of lovers, though the age of the victim is below 18 years above 16 years, booking the accused under the POCSO Act and sending him to jail to be avoided. In this connection he has placed order of the Bombay High Court in B.A. No.997 of 2022 dated 26.04.2023 and another judgment of Culcutta High Court in I.A. No: CRAN 2 of 2020 in C.R.A. No.458 of 2018 dated 17.09.2021 contending thus.

Another decision of this Court reported in Vishnu v. State of Kerala [2023 (4) KHC 1 : 2023 KHC OnLine 376 : 2023 KER 27167 : 2023 (3) KLT 754 : 2023 (2) KLJ 957 : ILR 2023 (2) Ker. 1034 : 2023 LiveLaw (Ker) 234] has been placed by the learned counsel for the petitioner to contend that the sexual intercourse in a love relationship, on the promise of marriage, is not rape.

Whereas the learned Public Prosecutor submitted that in this case, the prosecution allegation as to the commission of the above said offences by the accused is clearly made out and the age of the victim is 17 years. Therefore, the consent, if any, on the premise of love relationship and on the promise of marriage in relation to a minor victim is of no legal consequences. Thus, the argument of the learned counsel for the petitioner that the petitioner deserves anticipatory bail in a very serious crime, could not be countenanced.

On perusal of the FIS given by the victim, the defacto complainant stated that she was subjected to rape thrice in continuation of love relationship maintained in between the victim aged 17 years and the accused is aged 19 years. Therefore, the prosecution case is well made out, prima facie.

In the decision of the Apex Court reported in [2022 SCC OnLine SC 1529] Sumitha Pradeep v. Arum Kumar C.K. and Another, when this Court granted anticipatory bail to an accused, the matter was challenged before the Apex Court, the Apex Court set aside the order granting anticipatory bail, after referring the order with particular mention, as stated in paragraph Nos. 10 to 16 as under:

The High Court, while granting anticipatory bail to the 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 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 possibility of such show of 'affections' being coloured by sexual overtones. However, those are all matters for investigation."

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 with the Statement of the victim - girl child under Section 164 of the Code.

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. 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 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.

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.

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.”

Going by the ratio in Sumitha Pradeep’s case (supra), in cases containing such serious allegations, the High Court could not exercise its discretion in granting protection against arrest (pre-arrest bail), as the Investigating Officer deserves free-hand to take the investigation to its logical conclusion. When, 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. Merely because investigation has achieved progress or charge has been filed, it will be unfair for the Court to presume that the Investigating Officer does not require the accused for custodial interrogation for the purpose of further investigation.

Further, even assuming it a case where the accused is not required for custodial interrogation, the same by itself is not a ground for grant of anticipatory bail. In many anticipatory bail matters, 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.

Thus, it appears that in cases of this nature, where the ingredients to attract offences alleged by the prosecution are well made out, simply because the victim is aged 17 years by itself is not a ground to grant anticipatory bail to the accused, in any manner.

Therefore, this petition must fail and the same is accordingly dismissed, with direction to the petitioner to surrender before the Investigating Officer, forthwith and move for regular bail, as per law.