In a case where an uncle is accused of sexually assaulting his underage 12-year-old niece, the Supreme Court recently overturned the Kerala High Court’s order granting early bail to the accused.
SC has overturned Kerala HC’s order granting early bail to the man accused of sexually assaulting his 12-year-old niece. (Representative image)
By Srishti Ojha: In a case where an uncle is accused of sexually assaulting his underage 12-year-old niece, the Supreme Court recently overturned the Kerala High Court’s order granting early bail to the accused.
A bench of Justice Surya Kant and Justice JB Pardiwala issued the instruction in a plea filed by the girl’s mother challenging the order of Kerala HC granting protection of an advance bond in a case registered under the relevant provisions of the IPC and POCSO law.
It has been argued that the accused maternal uncle sexually assaulted his 12-year-old niece, attempted to undress her and made lewd comments.
It is the case of the mother that her daughter was an excellent student giving good performances but the incident traumatized her to such an extent that she collapsed in her course and performance.
While the Sessions Court had refused to grant the defendant early bail, the High Court granted him conditional bail.
The Supreme Court observed that the following two facts are sufficient to dissuade a court from exercising its discretionary jurisdiction in granting bail prior to arrest. The fact that the girl victim is traumatized to such a degree that her academic activities have been affected.
The legislative intent is particularly reflected in Article 29 of the POCSO Act. (Section 29 of the law provides that the court presumes the commission of offenses by the accused unless proven otherwise.)
The court observed that in a case containing such serious allegations, the High Court should not have exercised its jurisdiction in granting protection from arrest, as the investigator deserves a free hand to carry the investigation to its conclusion. logic.
The bench also strongly objected to observations made by the HC when granting early bail whereby it observed that it was possible that the defendant’s alleged ‘hugs and kisses’ were manifestations affection from an uncle”.
The court said the observations were totally unwarranted and were made without regard to the specific allegations contained in the FIR, duly supported by the girl’s statement.
Could bail have been granted if questioning in custody had not been requested?
The bench observed that in many early bail cases, the court has noticed a common argument advanced that no custodial interrogation is required and therefore early bail may be granted. .
The court observed that there appears to be a serious misconception of the law that if no case of questioning in custody is established by the prosecution, then that alone would be a good ground for granting early bail. .
The court clarified that while there may be many instances in which questioning of the accused may not be required, this does not mean that the prima facie case against the accused should be ignored or disregarded and that he must be released on early bail.
“Interrogation in detention can be one of the grounds for refusing interrogation in detention. However, even if questioning in police custody is not required or necessary, by itself, it cannot be grounds for granting advance bail. said the bench.