NEW DELHI: The Supreme Court has said anticipatory bail cannot be granted just because custodial interrogation is not required in a criminal case.
The top set aside a Kerala High Court order granting anticipatory bail granted to a man accused under various sections of the Protection of Children from Sexual Offences Act, 2012.
“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," a bench comprising justices Surya Kant and J B Pardiwala said.
The bench said 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.
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, the bench added.
The mother of 12-year-old victim approached the top court against the High Court's order July 25, 2022 which granted pre-arrest bail to the accused who is maternal uncle of the girl child.
Her counsel submitted that the High Court wrongly exercised its discretion while granting anticipatory bail to the accused in a very serious crime like POCSO and, therefore, the order passed by the high court should be quashed and set aside.
“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 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," the bench said.
The bench recorded that the victim, who was excellent in her studies and extra curricular activities, is traumatised to such a high degree that her academic pursuits have been adversely impacted. This alone, coupled with the legislative intent especially reflected through Section 29 of the POCSO Act, are sufficient to dissuade a court from exercising its discretionary jurisdiction in granting pre-arrest bail, the bench said.
The accused counsel submitted that chargesheet has already been filed.
“It will be unfair to presume on our part that the Investigating Officer does not require Respondent No.1 for custodial interrogation for the purpose of further investigation,” the court said.
It added, “Be that as it may, even assuming it a case where Respondent No.1 is not required for custodial interrogation, we are satisfied that the high court ought not to have granted discretionary relief of anticipatory bail”.
The bench said the High Court ought not to have exercised its jurisdiction in granting protection against arrest as the investigating officer deserves a free hand to take the probe to its logical conclusion.
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