Misconception That Anticipatory Bail Could Be Granted If Custodial Interrogation Was Not Required: Kerala HC

It is definitely most significant to note something which we just cannot afford to gloss over that while ruling on a key legal point pertaining to the grant of anticipatory bail, the Kerala High Court in a most learned, laudable, landmark, logical and latest judgment titled Prabhakaran P vs State of Kerala in Bail Appl. No. 2418 of 2024 and cited in Neutral Citation No.: 2024/KER/36950 and also in 2024 LiveLaw Ker 329 that was pronounced as recently as on June 3, 2024 held in no uncertain terms that it is a common misconception that anticipatory bail could be granted if custodial interrogation was not required. The Kerala High Court clarified that custodial interrogation was just one factor to consider when deciding on an anticipatory bail application. It must be noted that the Single Judge Bench comprising of Hon’ble Mr Justice A Badharudeen propounded that the Court has to consider if a prima facie case was made out against the accused, the nature of the offence and the severity of punishment while considering anticipatory bail applications. It certainly merits mentioning here that the Kerala High Court has passed the above order while considering an anticipatory bail application that had been moved by a 65-year-old school teacher and principal of a tuition center who was allegedly accused of sexually harassing a 9th standard student.

At the very outset, this brief, brilliant, bold and balanced judgment authored by the Single Judge Bench comprising of Hon’ble Mr Justice A Badharudeen of Kerala High Court sets the ball in motion by first and foremost putting forth in para 1 that, "This is a petition filed under Section 438 of the Code of Criminal Procedure, seeking pre-arrest bail and the petitioner is the sole accused in crime No.245/2024 of Parippally Police Station, Kollam."

As we see, the Bench discloses in para 3 that, "The above case has been registered alleging commission of offences punishable u/s. 354A(1)(9i), 354A(1) (ii) and 354 of the Indian Penal Code, Sections 8 r/w 7, 10 r/w 9(f)(p) and 12 r/w 11(i), 11(iv) of the Protection of Children from Sexual Offences Act, 2012 and Section 75 of the Juvenile Justice (Care and Protection of Children) Act, 2015."

To put things in perspective, the Bench envisages in para 4 that, "The prosecution allegation is that on 06.03.2024, the victim who is a 9th standard student of GHS, Chirakkara went for tuition at Atlas Education Centre, Chirakkara at 8.00 am. The accused herein who is the Principal and teacher therein conducted test paper and finished the same at 9.45 am. After finishing the class, the accused called the victim nearby and stated certain words with sexual overtures as stated in the FIS. Further allegation is that, after saying words with sexual overtures the accused attempted to caught hold on the victim and she saved herself. Thereafter, the other girl students, who were outside the tuition centre brought boy students and thereby she escaped. Further, it is stated in the FIS that, prior to 06.03.2024, as on 01.03.2024 also at about 9.30 am, while the victim was getting out of the class during interval, the accused fondled on her breast and he repeatedly said that he would kiss the victim."

While citing a recent and relevant case law, the Bench specifies in para 8 that, "The learned counsel for the defacto complainant placed decision of the Apex Court reported in [2022 SCC OnLine SC 1529] Sumitha Pradeep v. Arum Kumar C.K. and Another and argued that in a case involving similar facts, when this Court granted anticipatory bail to an accused, the matter was challenged before the Apex Court, the Apex Court set aside the order granting anticipatory bail, after referring the order with particular mention, as stated in paragraph Nos. 10 to 16 as under:

10. The High Court, while granting anticipatory bail to the respondent No. 1 herein (original accused), observed in para 9 of the impugned order something which has really disturbed us. Para 9 reads thus:-

"9. With the above principle in mind, when the facts of the case are noticed, it is revealed that the petitioner is the maternal uncle of the victim to whose house the victim went in December, 2021. On 14.12.2021, the victim is alleged to have been asked to sit on the lap of the petitioner, who thereafter is alleged to have hugged and kissed the victim on her cheeks. Though on the one side, there is a possibility of such hugs and kisses being manifestations of affection by an uncle, one cannot ignore the possibility of such show of ‘affections’ being coloured by sexual overtones. However, those are all matters for investigation."

11. In our considered opinion, the observations made in Para 9 of the impugned order are totally unwarranted and have been made overlooking the specific allegations contained in the FIR, duly supported with the Statement of the victim - girl child under Section 164 of the Code.

12. In a case containing such serious allegations, the High Court ought not to have exercised its jurisdiction in granting protection against arrest, as the Investigating Officer deserves free-hand to take the investigation to its logical conclusion. It goes without saying that appearance before the Investigating Officer who, has been prevented from subjecting Respondent No. 1 to custodial interrogation, can hardly be fruitful to find out the prima facie substance in the allegations, which are of extreme serious in nature.

13. The fact that the victim girl is traumatized 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.

14. It may be true, as pointed out by learned counsel appearing for Respondent No. 1, that charge-sheet 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.

15. 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.

16. We are dealing with a matter wherein the original complainant (appellant herein) has come before this Court praying that the anticipatory bail granted by the High Court to the accused should be cancelled. To put it in other words, the complainant says 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 granting anticipatory bail to the accused 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. 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. 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."

It cannot be lightly dismissed that the Bench observes in para 10 that, "Going by the ratio in Sumitha Pradeep’s case (supra), in cases containing such serious allegations, the High Court could not exercise its jurisdiction in granting protection against arrest, as the Investigating Officer deserves free-hand to take the investigation to its logical conclusion. When, the victim girl is traumatized 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. Merely because charge has been filed, it will be unfair to presume on our part that the Investigating Officer does not require the accused for custodial interrogation for the purpose of further investigation."

Most significantly, what is most striking to note and what really constitutes the cornerstone of this notable judgment is then encapsulated in para 11 mandating that, "Further, even assuming it a case where the accused is not required for custodial interrogation, the same by itself is not a ground for grant of anticipatory bail. In many anticipatory bail matters, 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. 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."

It is worth noting that the Bench notes in para 12 that, "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 anticipatory bail. However, even if custodial interrogation is not required or necessitated, by itself, cannot be a ground to grant anticipatory bail."

Be it noted, the Bench notes in para 13 that, "In this matter, the petitioner is none other than the Principal and tuition master of the victim. Going by the statement given by the victim, on the date of occurrence itself, there is allegation that the accused used many words with sexual overtures and the accused attempted to caught hold on the victim, though she saved herself. It was also stated that as on 01.03.2024 at about 9.30 am, while the victim was getting out of the class during interval, the accused fondled on her breast and he repeatedly said that he would kiss the victim."

Finally, the Bench then concludes by holding in para 14 that, "Applying the ratio laid down in Sumitha Pradeep’s case (supra) in the case at hand, the accused could not be released on anticipatory bail, since the allegations are made out, prima facie and the defacto complainant lodged the complaint on the day itself, where arrest and custodial interrogation of the accused are necessary to accomplish meaningful investigation and eventful prosecution. Therefore, this bail application must fail and is accordingly dismissed."