The Kerala High Court in its order dated March 07, 2023 granted anticipatory bail to a man accused of sexually exploiting his own son. The High Court opined that the courts need to adopt a cautious approach while considering bail applications moved by parents accused of sexually assaulting their own children under the Protection of Children from Sexual Offences Act (POCSO Act).
The High Court emphasised on the liberty of the accused, particularly when they are involved in the custody battle of the child.
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Case:
The accused petitioner in this case is a man embroiled in a bitter matrimonial dispute with his wife. The victim in this case is none other than the 10-year-old son of the parties. The petitioner and his wife are Engineering graduates and IT professionals. The marriage between them was solemnised on 25.12.2010.
The offences alleged against the petitioner are under Section 75 of the Juvenile Justice (Care and Protection of Children) Act, 2015 and various Sections of the Protection of Children from Sexual Offences Act, 2012 (POCSO ACT).
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Allegation Against Father
The allegation against the accused father is that while he was given interim custody of the child as per the order passed by the Family Court, Ottapalam and when he was interacting with the child by sitting in his car parked in front of the Family Court, the petitioner allegedly shown nude photographs of the victim, which were taken while he was a small kid and also touched inappropriately with sexual intent on the private parts of the victim.
Thus, the accused father has applied for Anticipatory Bail in the High Court.
Submissions by Father
Advocate S Rajeev, who appeared on behalf for the petitioner, pointed out that the custody of the minor boy is the subject matter of several litigations between the petitioner and the boy’s mother.
He submitted that even though various orders were passed by the family court granting the petitioner overnight custody and permission to interact with his son, none of the orders were complied with.
He further said that the petitioner had moved the family court for initiating proceedings against the wife for contempt of custody orders and the same are currently pending.
Thus arguing strongly for the petitioner, the advocate termed the allegations against his client to be completely false and also claimed that it is yet another attempt by the mother to deprive the petitioner of all opportunities to interact with their son.
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Defense by Public Prosecutor
In defense, Public Prosecutor Sreejith VS opposed the aforesaid contentions by relying on the contents of the First Information Statement and the statement of the victim recorded under Section 164 of the Cr.PC. It was pointed out that there are specific allegations of sexual assault, which would attract the offences alleged in the F.I.R.
The matter is now under investigation, and therefore if the petitioner is granted anticipatory bail, it would adversely affect the progress of the investigation, and the dismissal of the bail application was sought by the learned Public Prosecutor in such circumstances.
Kerala High Court
Single bench judge Justice Ziyad Rahman AA went through the facts on record and referred to the view taken by a division bench of the Court in Suhara & Ors. v. Muhammed Jaleel which had highlighted the issue of false POCSO cases being foisted upon the biological fathers of children who are caught up in custody battles.
The Judge remarked,
I am of the view that, before going into the rival contentions of the parties, it is necessary to examine the sequence of events which ultimately led to the registration of the FIR.
An order was passed by the Family Court in 2022, permitting the petitioner to have interaction with the child on 26.11.2022 and 3.12.2022 from 10 a.m. to 1 p.m. To have such an interaction, the wife was directed to produce the child before the Family Court on those dates, with a direction to hand over the child to the petitioner.
In compliance with the said direction, the child was produced, and the petitioner interacted with the child while sitting in his car parked in front of the Family Court.
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The single-judge further held that in such circumstances where the material raises reasonable suspicion, the Court must not hesitate to invoke its power to grant anticipatory bail under Section 438 of the Code of Criminal Procedure (CrPC). The High Court remarked:
The courts, while dealing with the applications for bail, involving the offences of the POCSO Act, allegedly committed by the accused against their children, should take a very cautious approach, particularly when the custody of the child is under serious litigation between the parents.
In such cases, when the materials placed before the court evoke a reasonable suspicion as to the veracity of the allegations, the courts should not hesitate to invoke the powers under section 438 of the Cr.P.C. What is at stake is someone’s personal liberty, integrity, dignity and sometimes, the life itself.
The Court observed that even in the reports of a psychiatrist and counsellor who had interacted with the boy, there was nothing to indicate that the child had spoken about any sexual assault.
Apart from the above, the Court also questioned whether showing the boy naked pictures of himself when he was younger, as opposed to naked pictures of someone else, would attract any offence under the POCSO Act.
Even though there is an allegation that the petitioner touched his son with sexual intent, the Court noted that it is there only in the boy’s statement.
Can’t rule out false POCSO against father
The Court further added that there is a chance that the allegations might be concocted and that the child was tutored, especially in light of the ongoing custody battle. Thus, the High Court was of the opinion that denying anticipatory bail to the petitioner is not safe. It said,
The impression that could be gathered from the sequence of events referred to above compels this court to take the view that an order to protect the personal liberty of the petitioner is absolutely necessary.
This Court cannot ignore the trauma, loss of dignity and other difficulties which the petitioner, who is an educated person without any criminal antecedents, has to face if he is compelled to undergo detention based on allegations which are under the shadow of a doubt.
If it is ultimately turned out that the allegations are false, nobody can compensate for the loss that may occur to a person due to such detention.
Therefore, the Kerala High Court granted anticipatory bail to the father, but imposed several conditions to ensure that the investigation could go on in accordance with the law.
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READ ORDER | False POCSO Charges Against Father Embroiled In Custody Battle Can't Be Ruled Out: Kerala HC Grants Anticipatory Bail
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