Anticipatory Bail Cannot Be Granted Merely Because Custodial Interrogation Is Not Required ; Court Should Consider Prima Facie Case: Supreme Court

The Supreme Court observed that an anticipatory bail cannot be granted merely because custodial interrogation is not required.

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, the bench of Justices Surya Kant and JB Pardiwala observed.

The court was considering an appeal filed by mother of a victim in a POCSO case against the Kerala High Court order that granted anticipatory bail to the accused.

The court noted that in many anticipatory bail matters, one common argument is   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 court then further explained:

"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."

 Case details

X vs Arun Kumar CK | 2022 LiveLaw (SC) 870 | CrA 1834/2022 | 21 October 2022 | Justices Surya Kant and JB Pardiwala

Headnotes

Code of Criminal Procedure, 1973 ; Section 438 -  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 custodial interrogation. However, even if custodial interrogation is not required or necessitated, by itself, cannot be a ground to grant anticipatory bail. 

Summary : Appeal against Kerala HC order which granted conditional anticipatory bail to POCSO Accused who allegedly sexually assaulted his minor neice - Allowed - 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 pre­arrest bail.

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