New Delhi, Oct 27 The Supreme Court has set aside a Kerala High Court order granting anticipatory bail to an accused under the Protection of Children from Sexual Offences Act, 2012, holding that anticipatory bail cannot be granted merely because custodial interrogation is not required.
Criticising the high court order, a bench of Justices Surya Kant and J.B. Pardiwala said: "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."
It 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.
It added that custodial interrogation can be one of the grounds to decline anticipatory bail, however, even if custodial interrogation is not required or necessitated, by itself, cannot be a ground to grant anticipatory bail.
The complainant's counsel submitted before the bench 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.
The bench said: "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."
It noted the victim is traumatised to such a high degree that her academic pursuits have been adversely impacted 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.
As the accused's counsel submitted that charge sheet has already been filed, the court said: "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."
"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."
Setting aside the high court order, the top court 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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