Non-requirement of custodial interrogation cannot be sole ground for grant of anticipatory bail: Supreme Court

The Supreme Court recently deprecated the trend of High Courts granting anticipatory bail to accused persons on the ground that no custodial interrogation is required..A bench of Justices Surya Kant and JB Pardiwala said that in heinous crimes, requirement of custodial interrogation should not be the only consideration for grant of bail.Instead, courts should also consider whether there is a prima facie case against the accused, the nature of the offence and the severity of the punishment prescribed for the offence, the top court underscored."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 Court said. The Court, therefore, set aside the anticipatory bail granted to a person booked under Protection of Children from Sexual Offences Act (POCSO Act) for alleged sexual assault of his 12-year-old niece.Advocates Gaurav Agrawal, Anu K Joy, Alim Anvar, and Arvind Gupta appeared for the appellant.Advocates Raghenth Basant, Zehra Khan, Ajay Krishna, Harshad V Hameed, Dileep Poolakkot, and Ashly Harshad represented the respondents. .The appellant, who is the mother of the survivor, moved the Supreme Court challenging a July 25 Kerala High Court order granting anticipatory bail to the respondent-accused. The allegations were that the accused had asked the 12-year-old girl to sit on his lap, and then kissed her cheeks and attempted to kiss her lips, which traumatised the survivor.She could only open up about the incident after a second round of counselling that was initiated after a slump in her academic performance.He was charged for offences under the Indian Penal Code and the POCSO Act.The Sessions Court had denied anticipatory bail to the accused prompting him to approach the High Court which allowed the plea and granted him protection. .The top court at the outset stated that the High Court, given the seriousness of the allegations, could not have exercised its jurisdiction in granting protection against arrest." ... 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 Bench noted that the circumstances of the case along with the presumption of the offence being committed were sufficient to dissuade the High Court from exercising its discretionary jurisdiction in granting anticipatory bail. "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 December 14, 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 Court said.Pertinently, it added that the High Court's observations while doing so were 'absolutely unwarranted and not one befitting a High Court'.The top court also clarified that, "When the learned Judge decided the anticipatory bail application, the decision of the coordinate Bench in the case of Joy v. State of Kerala 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."It, therefore, allowed the appeal and set aside the Kerala High Court order. "Investigating Officer is granted liberty to proceed further in accordance with law. Suffice to say that law will take its own course," the Court added..[Read order]

Non-requirement of custodial interrogation cannot be sole ground for grant of anticipatory bail: Supreme Court

Abhimanyu Hazarika

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