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IN THE HIGH COURT OF KERALA AT ERNAKULAM
K. Babu, J.
Abdul Kabeer P.U – Petitioner
Versus
State Of Kerala Represented By Public Prosecutor And Ors. – Respondents
WP(CRL.) No. 1028 of 2023
Decided On : 23-01-2024
POCSO Act - Bail Application - Sections 366A, 376, 376(2)(n), 376(3), 506 r/w Section 34 of IPC and Sec.4(1) r/w Sec.3(a), Sec.6(1) r/w Sec.5(1) and Sec.12 r/w Sec.11(v) of POCSO Act - The court discussed the legal provisions of POCSO Act and IPC related to the bail application and highlighted the limitations of the Sessions Court in making observations or directions beyond the consideration of grant of bail to the accused.
Fact of the Case:
The petitioner, accused No.2, sought relief in a Writ Petition related to a criminal case involving allegations under Sections 366A, 376, 376(2)(n), 376(3), 506 r/w Section 34 of IPC and Sec.4(1) r/w Sec.3(a), Sec.6(1) r/w Sec.5(1) and Sec.12 r/w Sec.11(v) of POCSO Act. The petitioner challenged the order passed by the Sessions Judge and sought bail in the event of arrest.
Finding of the Court:
The Court found that the observations and directions made by the Sessions Court in the bail application were not sustainable. It also acknowledged the petitioner's right to approach the Court under Article 226 of the Constitution for securing his liberty.
Issues: The issues involved the legality of the observations and directions made by the Sessions Court in the bail application, and the jurisdiction of the High Court under Article 226 of the Constitution in securing the liberty of the accused.
Ratio Decidendi: The Court held that the Sessions Court should not make observations or directions beyond the consideration of grant of bail to the accused. It also recognized the applicability of the legal principles established in previous Supreme Court judgments related to bail applications.
Final Decision: The Writ Petition was disposed of, and the petitioner was given liberty to approach the Court in the event he is advised to do so in the future.
Based on the provided legal document, the key points are as follows:
The primary legal principle established is that a Sessions Court should confine its considerations to the grant or rejection of bail and should not make observations or give directions beyond that scope (!) .
The High Court has jurisdiction under Article 226 of the Constitution to secure the liberty of the accused, especially when the Sessions Court's observations or directions may impact the accused's liberty (!) .
The Court emphasized that when a Sessions Court is deciding a bail application, it should not travel beyond the specific issue of bail and should avoid making observations that could influence the trial or other proceedings (!) .
The Court clarified that the jurisdiction under Article 226 for securing liberty is not a substitute for the statutory remedies available under the Criminal Procedure Code, such as Sections 438 or 439, but can be invoked in exceptional cases to protect fundamental rights (!) (!) .
The Court highlighted the importance of exercising jurisdiction under Article 226 with caution, considering factors like the nature of the offence, the likelihood of tampering with witnesses, the possibility of fleeing, and the prima facie case, similar to the principles applied in bail proceedings (!) - (!) .
The Court pointed out that directions or observations made by a Sessions Court beyond the scope of bail consideration are not sustainable and should be quashed, as they can unduly influence the course of the trial or the rights of the accused (!) .
In this specific case, the Court found that the Sessions Court’s directions to explore additional provisions of law (such as Sections 16 and 17 of the POCSO Act) were beyond its jurisdiction in bail proceedings and were therefore quashed (!) .
The petitioner was granted liberty to approach the Court under Article 226 if advised, but the Court emphasized the need for exercising such jurisdiction with caution and only in exceptional circumstances (!) (!) .
The Court acknowledged that the investigation had concluded with a report indicating the allegations were false, and the trial court had accepted this report, implying that the petitioner might not face arrest (!) .
Overall, the decision underscores the importance of limiting judicial comments and directions to the specific issue of bail and respecting the procedural remedies available under the law while safeguarding individual liberty through constitutional jurisdiction when appropriate.
JUDGMENT :
The prayers in the Writ Petition are as follows:-
II. Issue writ in the nature of certiorari or any other writ order or direction and quash Ext.P3 order.
III. Issue a direction to the 4th respondent to release the petitioner on bail in the event of his arrest in Crime No.407 of 2022 of Chalissery Police Station, Palakkad District.
IV. To issue any writ order or direction as the Honourable Court is pleased to meet the ends of justice in the circumstances of the case.
2. The petitioner is accused No.2 in Crime No.407 of 2022 of Chalissery Police Station. He along with accused Nos.1 and 3 are alleged to have committed offences punishable under Sections 366A, 376, 376(2)(n), 376(3), 506 r/w Section 34 of IPC and Sec.4(1) r/w Sec.3(a), Sec.6(1) r/w Sec.5(1) and Sec.12 r/w Sec.11(v) of POCSO Act.
3. The prosecution allegations are the following:-
Between December 2021 and June 2022, accused No.1, pretending love, induced a minor girl and had sexual intercourse with her. The petitioner along with accused No.3 captured those visuals on a mobile phone. They further threatened the minor girl saying that those visuals would be circulated on social media, if she refused to succumb to their demands also.
4. Based on the statement filed by the victim, the Police proceeded with the investigation. In the course of investigation, the victim approached this Court by filing W.P.(Crl) No.868 of 2022 seeking a relief to hand over the investigation to a Superior Officer. This Court in W.P.(Crl) No.868 of 2022 after perusing the report filed by the Investigating Officer observed thus:-
5. The petitioner approached the Sessions Court seeking anticipatory bail by filing Crl.M.C.No.81/2023. The Sessions Judge rejected the application seeking pre- arrest bail, but made the following observations:-
6. The petitioner challenges the above order passed by the Sessions Judge and inter alia prayed for releasing him on bail in the event of arrest. The petitioner also seeks to quash the observations in the order passed by the Sessions Judge.
7. Heard the learned counsel for the petitioner and the learned Public Prosecutor.
8. The learned Public Prosecutor raised a contention that the petitioner cannot in a routine course approach this Court under Article 226 of the Constitution
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