Point of Law : Power under section 438 is an important tool for court to protect personal liberty of persons, which is one of fundamental rights guaranteed under Constitution of India.

ORDER :

The petitioner is the accused in Crime No.59/2023 of the Ottapalam Police Station. The offences alleged against the petitioner are under Section 75 of the Juvenile Justice (Care and Protection of Children) Act, 2015 and Sections 7,8,10,9(l),9(m),9(n) of the Protection of Children from Sexual Offences Act, 2012 (POCSO ACT).

2. The victim in the said case is none other than the son of the petitioner herein, who is aged ten years. The allegation against the petitioner is that while the petitioner 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. This application for Anticipatory Bail is submitted by the petitioner in such circumstances as he apprehends arrest.

3. Heard Sri. S. Rajeev, the learned counsel for the petitioner and Sri.Sreejith V.S., the learned Public Prosecutor of the State.

4. The specific contention of the learned counsel for the petitioner is that this case is falsely foisted against the petitioner to deprive him of the opportunity to interact with the child. It is pointed out that certain litigations between the petitioner and his wife are pending before the Family Court, Ottapalam, for dissolution of the marriage between them and regarding custody of the child. According to him, even though various orders were passed by the learned Judge of the Family Court granting permission to interact with the child and also giving overnight custody of the child with the petitioner for a short period, none of the aforesaid orders was complied with. The petitions submitted at the instance of the petitioner for initiating appropriate proceedings against his wife for violating such orders are pending before the Family Court. The present crime was registered with false allegations, much belatedly, when coercive proceedings against the wife of the petitioner for violating the orders passed by the Family Court became imminent.

5. On the other hand, the learned Public Prosecutor would oppose 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.

6. After going through the materials placed on record and hearing the contentions raised from either side, 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.

7. The petitioner and his wife are Engineering graduates and IT professionals. The marriage between them was solemnized on 25.12.2010, and in the said wedlock, a boy child was born, who is now aged ten years. It appears that with the passage of time, there occurred certain matrimonial discord between the husband and the wife, and according to the petitioner, his wife was reluctant to come and reside along with the petitioner, who was working at Banglore. In such circumstances, the petitioner submitted OP No.308/2017 before the Family Court, Ottapalam, for restitution of conjugal rights. The aforesaid OP was ultimately disposed of as per Annexure-II judgment based on the settlement between the parties. The terms of the settlement were to the effect that, as soon as the academic year is over, the wife of the petitioner shall join the petitioner in Bangalore after obtaining the t