POCSO Act & BNS: Alleged Marriage, Survivor's 'No Grievance' Statement, and Accused's Custody Period Considered Key Factors for Bail by Kerala High Court, Despite Survivor's Minority at Time of Offence.

Kerala High Court Grants Bail in POCSO Case Citing Alleged Marriage and Survivor 's "No Grievance" Statement

Ernakulam: The Hon’ble Mr. Justice C.S. Dias of the Kerala High Court on December 11, 2024, granted bail to a 24-year-old man, Muthukumar , accused of offences under the Protection of Children from Sexual Offences (POCSO) Act, 2012, and the Bharatiya Nyaya Sanhita (BNS). The decision came in Bail Application No. 9038 of 2024, considering the alleged marriage between the accused and the 17-year-old survivor, her subsequent statement of having no grievance, the period of incarceration already undergone by the accused, and the practical completion of the investigation.

Background of the Allegations

The case, registered as Crime No. 680/2024 of Vandanmedu Police Station, Idukki, accused Muthukumar of offences under Sections 64(1) and 64(m) of the Bharatiya Nyaya Sanhita (BNS) and Sections 3, 4, 5j(ii), and 5(1) read with Section 6 of the POCSO Act.

The prosecution alleged that between August 1, 2024, and September 30, 2024, Muthukumar , with an intent to satisfy his sexual lust, made a false promise to marry the 17-year-old survivor. It was further alleged that he engaged in sexual intercourse and committed penetrative sexual assault on her on several occasions. The petitioner was remanded to judicial custody on October 17, 2024.

Arguments Presented

The counsel for the petitioner, Sri. Abdul Rasac, contended that Muthukumar was innocent and had been falsely implicated. He argued that the petitioner and the survivor were in love and had married on May 24, 2023. The counsel submitted that the case was registered merely because the Investigating Officer believed the survivor was a minor at the time of the alleged offences. He further highlighted that the petitioner had been in judicial custody for 60 days, the investigation was complete, medical examinations were conducted, and the petitioner had no criminal antecedents.

The learned Public Prosecutor, Sri. Ajith Viswanath, opposed the bail application, stating that the investigation was still in progress. He expressed concerns that if released on bail, the petitioner might intimidate witnesses or tamper with evidence.

Court's Intervention and Survivor 's Stand

During the proceedings, on November 27, 2024, the Court directed that the survivor be produced before the Family Counselling Centre, High Court of Kerala. The counsellor interacted with the survivor and submitted a report.

The Court noted: > "Pursuant to the said order, survivor appeared before the counsellor who interacted with her and has reported that the survivor and the petitioner got married on 24.05.2023. The survivor and the petitioner had been living together as husband and wife. They hail from the Scheduled Tribe community. The survivor has no subsisting grievance against the petitioner. It is only because the Investigating Officer felt that the survivor was a minor at the time of incident, the crime was registered."

The survivor also reiterated these statements when she interacted directly with the Court.

Judicial Consideration and Rationale for Bail

Justice C.S. Dias , after careful consideration of the facts, rival submissions, and materials on record, found grounds to grant bail. The Court emphasized several factors: * The alleged marriage between the petitioner and the survivor on May 24, 2023. * The petitioner's judicial custody for the past 60 days. * The practical completion of the investigation. * The conduct of medical examinations. * The petitioner's lack of criminal antecedents. * The survivor's statement, both to the counsellor and the court, indicating no subsisting grievance and affirming their marital relationship.

The Court observed: > "On an anxious consideration of the facts, the rival submission made across the Bar and the materials placed on record, especially considering the fact that the petitioner and the survivor are said to be married on 24.05.2023, the petitioner is in judicial custody for the last 60 days, the investigation in the case is practically complete, the medical examinations have been conducted, and the petitioner does not have any criminal antecedents, I am of the view that the petitioner’s further detention is unnecessary."

Bail Granted with Stringent Conditions

The bail application, filed under Section 483 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS), was allowed. The petitioner was directed to be released on bail upon executing a bond for Rs.1,00,000/- with two solvent sureties for the like sum. The bail is subject to several conditions, including: 1. Appearing before the Investigating Officer on every alternate Saturday. 2. Not intimidating witnesses or tampering with evidence. 3. Not committing any offence while on bail. 4. Surrendering his passport, if any.

The Court also clarified that the Investigating Officer is empowered to continue the investigation and effect recoveries if necessary, citing Sushila Aggarwal v. State (NCT of Delhi) and another [2020 (1) KHC 663] . Importantly, the order stated that "The observations made in this order are only for the purpose of considering the application and the same shall not be construed as an expression on the merits of the case to be decided by the competent Courts."