[POCSO] Courts should not hesitate to grant anticipatory bail when accused is parent engaged in custody battle for victim: Kerala High Court

The Kerala High Court on Tuesday observed that courts need to adopt a cautious approach while considering bail applications moved by parents accused of sexually assaulting their own children under the Protection of Children from Sexual Offences Act (POCSO Act), especially when they are involved in the custody battle of the child [xxxx v State of Kerala]

Justice Ziyad Rahman AA echoed the view taken by a division bench of the Court in Suhara & Ors. v. Muhammed Jaleel which had highlighted the issue of false POCSO cases being foisted upon the biological fathers of children who are caught up in custody battles.

The single-judge held that in such circumstances where the material raises reasonable suspicion, the Court must not hesitate to invoke its power to grant anticipatory bail under Section 438 of the Code of Criminal Procedure (CrPC).

"The courts, while dealing with the applications for bail, involving the offences of the POCSO Act, allegedly committed by the accused against their children, should take a very cautious approach, particularly when the custody of the child is under serious litigation between the parents. In such cases, when the materials placed before the court evoke a reasonable suspicion as to the veracity of the allegations, the courts should not hesitate to invoke the powers under section 438 of the Cr.P.C. What is at stake is someone’s personal liberty, integrity, dignity and sometimes, the life itself," the order stated.

The Court was considering an anticipatory bail application moved by a person accused of committing offences punishable under various provisions of the POCSO Act as well as the Juvenile Justice (Care and Protection of Children) Act.

The case against the petitioner-accused was that he had shown his minor son naked pictures of the son himself and also touched the son inappropriately with sexual intent.

Advocate S Rajeev, appearing for the petitioner, pointed out that the custody of the minor boy is the subject matter of several litigations between the petitioner and the boy's mother.

He submitted that even though various orders were passed by the family court granting the petitioner overnight custody and permission to interact with his son, none of the orders were complied with.

He further said that the petitioner had moved the family court for initiating proceedings against the wife for violating its orders and the same are currently pending.

Rajeev, therefore, argued that the allegations against the petitioner are completely false and that it is yet another attempt by the mother to deprive the petitioner of all opportunities to interact with their son.

On the other hand, Public Prosecutor Sreejith VS opposed the grant of anticipatory bail, arguing that the first information statement of the minor boy contained specific allegations of sexual assault that would attract the offences alleged in the FIR (first information report) against the petitioner.

The matter is now under investigation and, therefore, if the petitioner is granted anticipatory bail, it would adversely affect the progress of the investigation, he contended.

The Court went through all the material on record and opined that there is some force in the contentions raised by Rajeev.

It noted that according to the FIR, the minor boy was subjected to sexual assault while the petitioner interacted with him as per the orders passed by the family court. It also noted that in the orders passed by the family court after such interactions, there were categorical observations that everything had gone smoothly.

The Court observed that even in the reports of a psychiatrist and counsellor who had interacted with the boy, there was nothing to indicate that the child had spoken about any sexual assault.

Apart from the above, the Court also questioned whether showing the boy naked pictures of himself when he was younger, as opposed to naked pictures of someone else, would attract any offence under the POCSO Act.

Even though there is an allegation that the petitioner touched his son with sexual intent, the Court noted that it is there only in the boy's statement.

Since there is a chance that the allegations might be concocted and that the child was tutored, especially in light of the ongoing custody battle, the Court opined that denying anticipatory bail to the petitioner is not safe.

"The impression that could be gathered from the sequence of events referred to above compels this court to take the view that an order to protect the personal liberty of the petitioner is absolutely necessary. This Court cannot ignore the trauma, loss of dignity and other difficulties which the petitioner, who is an educated person without any criminal antecedents, has to face if he is compelled to undergo detention based on allegations which are under the shadow of a doubt. If it is ultimately turned out that the allegations are false, nobody can compensate for the loss that may occur to a person due to such detention," the Court said.

Therefore, it granted the petitioner anticipatory bail but imposed several conditions to ensure that the investigation could go on unimpeded.

[Read Order]