The Supreme Court Bench consisting of Justice Surya Kant and J.B. Pardiwala on October 21st, 2022, set aside the anticipatory bail granted by the Kerala High Court in a POCSO case. The Court showed its discontentment with the observations made by the Kerala High Court in this case.
CASE FACT
The accused, Arun Kumar, and the victim, who is from Meenangadi, are related to each other as uncle and niece. In this case, the accused was alleged to have sexually assaulted his minor niece, who is 12 years of age. He asked the victim to sit in his lap, and while the victim sat in his lap, he hugged her and kissed her cheeks. Later, he tried to kiss her lips, which resulted in disrobing the victim, and also made lewd comments to her.
An FIR was lodged in this case. Then the accused approached the POCSO special court seeking anticipatory bail. The Special Court denied his request. Aggrieved by this, the accused approached the Kerala High Court; the court granted him bail on conditions. The mother of the victim approached the Supreme Court (SC) while they were disappointed with the decision of the Kerala High Court.
The court in this case said that it was not a show of affection by the uncle for his niece. The SC criticized the analysis made by the Kerala High Court in this case. The court, in this case, noted that the Special Court, while dismissing the first petition for seeking anticipatory bail by the accused, relied upon the early verdict of the Kerala High Court in Joy v. the State of Kerala.
The SC pointed out that the Kerala High Court ignored its earlier decision while considering this anticipatory bail. The court in Joy v. the State of Kerala decided that the court while dealing with the anticipatory bail application of the accused of an offense in a POCSO case shall take into consideration the presumption as per Section 29 of the POCSO Act.
Section 29 of the POCSO Act deals with the fact that, when a person is prosecuted for committing or abetting or attempting to commit offenses under sections 3, 5, 7, and 9 of this act which constitute a sexual offense against minor children, the court shall presume that such a person has committed the crime unless its contrary is proved before the court.
The court in this case also opined that if the High Court does not agree with its earlier precedent in Joy‘s case, then the court should have referred the matter to a longer bench. The Court made special reference to paragraph 9 of the Kerala High Court order of granting Anticipatory bail to the accused as totally unwarranted. And the order for granting anticipatory bail is dismissed.
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