Division Bench of Justice Surya Kant and JB Pardiwala of the Supreme Court while hearing a bail cancellation petition ordered that "Custodial interrogation can be one of the grounds to decline custodial interrogation.   However,   even   if   custodial   interrogation is not required or necessitated, by itself, cannot be a ground to grant anticipatory bail."

Discussing the issue of the requirement of custodial interrogation the bench said that "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 the 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.

The victim of POCSO Act had challenged the order granting bail to the accused by the Kerala high court in an FIR Lodged on 27.05.2022 u/s 354A(1)(i),(ii) & (iv),  354 A­(2) and 354­A(3) of the Indian Penal Code read with Sections 7, 8, 9 and 11 of the Protection of Children from Sexual Offences Act, 2012 wherein it has been alleged that his 12 years old niece was sexually assaulted by the accused and asked the victim to sit on his lap thereafter hugged her and kissed her on the cheeks and tried to kiss her on her lips. He also attempted to disrobe her and made her lewd comments. Section 164 CRPC Statement was recorded before the Magistrate.

The anticipatory bail was declined to the accused and the Hih Court granted him the anticipatory bail relying on the judgment of Joy Vs. State of Kerala (2019)1 KLT 935, wherein the Kerala High Court has taken the view that the courts shall take into consideration the presumption under Section 29 of the POCSO Act while dealing with an application for bail filed by a person who is accused of the offence under the Act.

Case Details:-

CRIMINAL APPEAL NO.1834/2022

SUMITHA PRADEEP                                    Appellant(s)
                                VERSUS
ARUN KUMAR C.K & ANR.                              Respondent(s)

Read the Complete judgment on  the following link:-

https://main.sci.gov.in/supremecourt/2022/23738/23738_2022_12_38_39201_Order_21-Oct-2022.pdf