When considering bail, the Sessions Court must not exceed its scope by making observations or directions that affect the trial, as established by precedents.

JUDGMENT

The prayers in the Writ Petition are as follows:-

I.Call for the records leading to Ext.P3 order.

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 Section s 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:-

“6. A detailed report has been filed by the investigating officer narrating the investigation being conducted so far. It would show that as part of the investigation, the statement of the victim under section 161 of Cr.P.C as well as under section 164 of Cr.P.C was recorded. Altogether 15 witnesses were questioned. The CDR of the phone call between the victim and the first accused as well as between the first and second accused were also examined. The victim was subjected to medical examination. As per the case of the victim, she was subjected to penetrative sexual assault on several times. The victim is aged 15 years. However, the medical examination report would show that hymen of the victim was intact. On investigation, the investigating agency also found material contradictions in the statement given by the victim. That apart, the definite case of the victim was that there was telephonic conversation between her and the first accused. However, on examination of the CDR, it was found that there was no such conversation. Four instances of sexual assault were specifically mentioned by the victim. Those four instances were investigated by the investigating agency and it was found that the case set up by the prosecution appears to be not correct.“

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:-

“12. Before parting with the application for pre- arrest bail, this Court is at loss to understand as to why the investigating agency has not invoked the provisions of SeC.16 r/w Sec.17 of the POCSO Act and resorted to Sec.34 of IPC . The Investigating Officer shall explore the possibilities of invoking Sec.16 r/w Sec.17 of the in the light of materials collected during the investigation.“

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 petitione