IMPORTANT POINT
While considering bail application in a case under POCSO, Court has to take into consideration provision of section 29 of the Act that such person shall be presumed to have committed the offence but proof contrary to replace the presumption could be adduced by highlighting circumstances which may make allegations highly improbable or false.

ORDER

R. Narayana Pisharadi, J.—The petitioner is the accused in the case registered as Crime No.900/2017 of the Nadakkavu police station under Sections 7 read with 8, 9(l), 9(m) and 9(n) read with 10 of the Protection of Children from Sexual Offences Act, 2012 (hereinafter referred to as ‘the Act’). He seeks the protection envisaged under Section 438 of the Code of Criminal Procedure, 1973 in the event of arrest by the police in the case.

2. The petitioner is the father of the victim child, who is a boy aged six years. The allegation against the petitioner is that one day in the month of November, 2015, when the petitioner and his son resided together in a room at the Calicut Tower Hotel in Kozhikode, he touched and held the penis of his son in his hand with sexual intent. It is alleged that even before this incident, on several dates, the petitioner used to do such act. The case against the petitioner was registered on the basis of the statement given to the police by the victim boy on 19.11.2017.

3. Heard the learned counsel for the petitioner and the learned Public Prosecutor. Perused the case diary.

4. The mother of the victim is a teacher in a school. On 17.11.2017, she gave a complaint against the petitioner to the Co-ordinator of the Childline Authority in which she narrated the acts of sexual assault committed by the petitioner on the child. Then the Childline Authority informed the matter to the police. Then the statement of the victim boy was recorded by the police in the presence of his mother and the case against the petitioner was registered. The statement of the victim was subsequently recorded by the Magistrate concerned under Section 164 Cr.P.C.

5. The statements of the victim boy recorded by the police and also by the Magistrate, prima facie, reveal the commission of the offences alleged against the petitioner. Section 29 of the Act states that where a person is prosecuted for committing or abetting or attempting to commit any offence under Sections 3, 5, 7 and 9 of the Act, the Special Court shall presume, that such person has committed or abetted or attempted to commit the offence, as the case may be unless the contrary is proved. While considering the bail application, the Court has to take into consideration the effect of this provision (See State of Bihar v. Rajballav Prasad : AIR 2017 SC 630). At this stage, proof contrary to replace the presumption under Section 29 of the Act can be adduced by the accused by highlighting circumstances which may make the allegations against him highly improbable or false.

6. As per the statements of the witnesses recorded by the police, the petitioner had committed the acts of sexual assault on the victim boy in the month of November, 2015 and during the earlier period. The statement given to the police by the mother of the victim boy reveals that she was aware of the acts of sexual assault committed by the petitioner on her son in the year 2015 itself. Then she did not give complaint against the petitioner to any authority. It is to be noted that she is a teacher by profession. It was only on 19.11.2017 that she informed the matter to the Childline Authority. By that time, the relationship between her and the petitioner had become strained. She filed a complaint against the petitioner and his relatives and a case has been registered against them under Section 498A I.P.C. There are other cases filed by her against the petitioner in the Family Court. It is pertinent to note that the petitioner has filed an application in the Family Court for getting custody of the child. The filing of the complaint against the petitioner alleging sexual assault on the minor son, two years after the alleged incident, has to be considered in the backdrop of the aforesaid circumstances.

7. Learned counsel for the petitioner submitted that the petitioner is ready to co-operate with the investigation of the case. It is submitted that though he was earlier working abroad, he is now permanently