Read Time: 10 minutes

Synopsis

The Kerala High Court has granted bail to a man accused of sexually abusing his 7-year-old daughter, citing possible false implication. Justice C.S. Dias made the ruling in a case where the accused was granted interim custody of his two children by the Family Court. The mother alleged that the accused sexually abused the child during his custody period. However, the court noted that neither the child nor the mother complained of abuse during the custody period, and the FIR was registered a week after the custody was over and transferred to the mother.

The prosecution alleged that the accused who was granted custody of the survivor and his younger daughter for seven days between May 25, 2024 to May 31, 2024, during this time, took the survivor to a public washroom at a mall and touched her genitals with sexual intention and penetrated her with his finger. Subsequently, the accused was charged under Sections 376 (rape), 376(2)(n) (repeatedly raping the same woman), 376AB (rape on woman under the age of twelve years) of the Indian Penal Code, 1860 and Sections 3(b), 4(2), dealing with the offence and punishment for penetrative sexual assault and 5(m), 5(l) & 5(n) providing with aggravated penetrative sexual assault under the Protection of Children from Sexual Offences (POCSO) Act.

The accused (petitioner), represented by Advocate S Rajeev, contended that the allegations were unfounded and have been made solely to obstruct him from obtaining custody of his children. It was further claimed that the survivor is being used as a tool by the petitioner's wife to wreck vengeance on him. The petitioner emphasised that he is a law-abiding citizen and is willing to fully cooperate with the investigation. Accordingly, he requested that anticipatory bail be granted to him.

The bail plea was, however, opposed by the survivor’s mother, who submitted a bail objection report. It was argued that the application is not maintainable in law due to the statutory prohibition under Section 438(4) of the Code of Criminal Procedure. Given that the petitioner is accused of committing an offence under Section 376AB of the IPC, he is not eligible for pre-arrest bail. It was further contended that the survivor herself reported genital pain to a doctor on June 4, 2024, who, suspecting sexual abuse, alerted the Police, leading to the registration of the crime. Hence, alleging that the claim that the FIR was filed under the influence of the survivor's mother was baseless. Public Prosecutor Seetha S, appearing for the state, highlighted that the survivor's medical report and statement under Section 164 Cr.P.C. provided sufficient evidence against the petitioner. Additionally, it was alleged that due to the petitioner’s influence, there is a risk of interference with the investigation. Citing Section 29 of the POCSO Act, it was contended that there is no presumption of innocence in favour of the accused. Therefore, custodial interrogation and a medical examination of the petitioner are necessary, and the bail application should be dismissed.

The court noted that the marital relationship between the petitioner and the survivor's mother had been strained for the past two years, and the survivor's mother had refused to grant custody of the children to the petitioner. The Family Court, upon the petitioner’s application, issued an order granting him interim custody for five days in April 2024 and seven days in May 2024. During these proceedings, neither the survivor nor her mother raised any allegations of sexual abuse or ill-treatment against the petitioner. It was only a week later that the survivor reported genital pain, leading to a doctor's examination, which subsequently resulted in the police registering the FIR. The court found the petitioner’s claim of being falsely implicated to be plausible but emphasised that this matter requires investigation and resolution at trial.

Referencing the case of Suhara v Muhammed Jaleel, the court noted : “there is a growing tendency in the recent years to foist false crimes against biological fathers, alleging them of sexual abuse of their own children by misusing the provisions of the PoCSO Act, especially when there is a serious fight for the custody of their children, which is pending resolution before the Family Courts.”

Conclusively, the court, upon considering the ongoing matrimonial proceedings between the petitioner and the survivor's mother, the occurrence of the incident during the period of interim custody without any complaint to the Family Court, the alleged incidents taking place in public washrooms despite the father having custody, and the fact that the complaint was lodged nearly a week later, held that “the petitioner has made out valid grounds,” for grant of bail.

As a result, the court decided to allow the bail application, subject to strict conditions.

 

 

Cause Title: XX v State of Kerala [BAIL APPL. NO. 5411 OF 2024]