2019 (3) TMI 1906 - HC - Indian Laws

Seeking grant of anticipatory bail - allegation of sexual assault on a minor girl - petitioner claims that the allegation was made after he sent notice demanding his professional charges for treatment of victim - HELD THAT - Mere delay in reporting the matter to the authorities concerned especially sexual assault on a minor girl is immaterial and it would not be fatal to the prosecution case. However in the instant case it is not the delay alone that is significant. The significant fact is that the complaint was given to the authorities concerned only two weeks after the mother received the lawyer notice from the petitioner claiming a huge amount as professional fees. This raises suspicion on the prosecution case against the petitioner. When the victim had disclosed the matter to her mother in July 2018 one would have expected the mother to report the matter to the authorities concerned much earlier than 22.09.2018. The fact that she reported the matter only after receiving a lawyer notice from the petitioner assumes significance. The statutory presumption under Section 29 of the Act does not mean that the prosecution version has to be accepted as gospel truth in every case. The presumption does not mean that the court cannot take into consideration the special features of a particular case. Patent absurdities or inherent infirmities or improbabilities in the prosecution version may lead to an irresistible inference of falsehood in the prosecution case. The presumption would come into play only when the prosecution is able to bring on record facts that would form the foundation for the presumption - No inflexible guidelines or straitjacket formula can be provided for grant or refusal of anticipatory bail. It should necessarily depend on facts and circumstances of each case in consonance with the legislative intention. In the instant case there is no allegation against the petitioner that he actually touched any private part of the victim girl. Custodial interrogation of the petitioner appears to be not necessary to have an effective investigation of the case. The prosecution has no case that on getting bail the petitioner would flee from justice. He has got no criminal antecedents - The apprehension expressed by the prosecution is only that the petitioner would threaten the witnesses and tamper with the evidence if released on bail. Such a contingency can be avoided by imposing appropriate conditions on granting bail. The petitioner shall be released on bail on executing a bond with two sureties each for the like amount in the event of his arrest by the police in Crime No. 592 of 2018 of Nedupuzha Police Station - Application allowed.

Summary

Issues: Application for anticipatory bail under Section 438 of the Code of Criminal Procedure, 1973 in a case involving allegations under the Protection of Children from Sexual Offences Act, 2012.

Detailed Analysis:

1. Allegations and Background: The petitioner, a Psychologist, is accused of showing obscene videos, inappropriate physical contact, and providing explicit materials to a minor girl during counselling sessions. The complaint was made by the victim's mother to the Child Welfare Committee, leading to the registration of a case against the petitioner.

2. Arguments and Counterarguments: The petitioner's counsel highlighted a delay in reporting the incident after the petitioner sent a legal notice for professional fees, questioning the credibility of the allegations. The Public Prosecutor opposed bail, citing the seriousness of the accusations.

3. Statement of the Victim: The victim's statement, recorded by both the police and a Magistrate, details the petitioner's actions, including showing obscene content and inappropriate physical contact. The delay in reporting the incident raised suspicions regarding the timing of the complaint.

4. Legal Presumptions: Section 29 of the Protection of Children from Sexual Offences Act, 2012, establishes a presumption of guilt against the accused, which must be considered in bail applications. However, this presumption does not negate the need for the prosecution to establish essential facts to support the case.

5. Judicial Discretion: The court emphasized that while the Act aims to prevent child abuse, the judiciary must balance its objectives with safeguarding against misuse. In this case, where no direct physical contact was alleged, custodial interrogation was deemed unnecessary for effective investigation.

6. Grant of Anticipatory Bail: Considering the lack of criminal history, the absence of a flight risk, and the potential for imposing conditions to prevent witness tampering, the court granted anticipatory bail to the petitioner. Specific conditions were set, including regular appearances before the investigating officer and restrictions on contact with the victim and witnesses.

7. Final Orders: The court ordered the petitioner's release on bail upon fulfilling specified conditions, emphasizing that the observations made in the bail order should not influence the trial court's proceedings.

This detailed analysis of the judgment highlights the legal complexities, evidentiary considerations, and judicial reasoning involved in granting anticipatory bail in a case concerning allegations under the Protection of Children from Sexual Offences Act, 2012.