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Crime & Punishment

An SC order has stated that if custodial interrogation is not required in a case, anticipatory bail cannot be granted by itself. It is vital to see the nature of the offence and severity of punishment, especially in POCSO cases.
01:27 PM Nov 19, 2022 IST | India Legal
crime   punishment

By Adv. Saju Jakob, Lily Thomas Jr & Adv. Liza Arora

While setting aside anticipatory bail granted to a person charged under the POCSO Act, a division bench of the Supreme Court observed in Arun Kumar CK & ANR that it had noticed one common argument in many such bail matters—that if the prosecution makes no case for custodial interrogation, that was deemed sufficient to grant anticipatory bail.

The Court further stated that custodial interrogation of an accused isn’t needed in certain cases, but that doesn’t mean that the prima facie case against him should be ignored or overlooked and he should be granted anticipatory bail. The nature of the offence should be looked into along with the severity of the punishment. It further stated that if custodial interrogation is not required, anticipatory bail cannot be granted by itself. Therefore, as is evident from this case’s facts, custodial interrogation under the POCSO Act cannot be denied simply because the prosecution had not made a case for it. A Court should consider the gravity of an offence as well as the prima facie case when determining whether to grant anticipatory bail, it said. Despite the fact that this case falls under specific offences defined by Section 29 of the POCSO Act, the discussion on anticipatory bail versus custodial interrogation has again intensified.


The apex court has often emphasised that an anticipatory bail application must be considered carefully, especially when the investigation agency is in the dark about the gravity of the offence. It is especially important when the agency is just beginning its investigation. The term anticipatory bail refers to a court order granting pre-arrest bail to an accused under Section 438 of the Code of Criminal Procedure, 1973, when he anticipates being arrested for an alleged non-cognizable offence. It is a surety backed by a promise from the accused to appear in court. Among other conditions, an accused can be granted anticipatory bail if he is made available for investigation when necessary, does not threaten or influence witnesses and does not tamper with evidence. These conditions should be so balanced in such a way that it protects the interests of prosecution/investigating agencies.

It is important, however, to read this judgment in the context of others on anticipatory bail, especially the Constitution bench’s decision in Gurbaksh Singh (1980), Sidharam Mhetre vs State of Maharashtra (2011) and Bhadresh Seth vs State of Gujarat (2016). The bench in Gurbaksh Singh Sibbia vs State of Punjab emphasised that Section 438 should be interpreted to embody the presumption of innocence and personal liberty as enshrined in Article 21. The reason for this is that at the time of anticipatory bail, the guilt of the accused has not yet been proven. In Siddharam Mhetre vs State of Maharashtra (2011), the Supreme Court, relying upon Gurbaksh Singh, ruled that custodial interrogation should be avoided when the accused has joined an investigation, is cooperating with the investigating agency and is not likely to abscond. Further, in Gurbaksh Singh, the Court ruled that the applicant should surrender himself to the police for a brief period of time if a discovery under Section 27 of the Evidence Act is to be made, or that he should be deemed to have surrendered himself if such a discovery is to be made.


As both terms clearly lay out their implications, one stands for the personal liberty of an individual, which is enshrined in Article 21, while the other stands for its curtailment and allows for interrogation in custody. Article 21 and 22 (2), as well as the well-known cardinal principle of law—presumption of innocence unless proven guilty—give rise to the view that “bail is the rule and jail is the exception”. This has been well-recognised through various pronouncements of the apex court as well as High Courts.


For example, Nagendra Nath Chakravarti vs King Emperor (1924) held “that the object of bail is to secure the attendance of the accused at the trial, that the proper test to be applied in the solution of the question whether bail should be granted or refused is whether it is probable that the party will appear to take his trial and that it is indisputable that bail is not to be withheld as a punishment”.


In Sanjay Chandra vs CBI (2011), it is observed that the object of bail is neither punitive nor preventative. Deprivation of liberty must be considered a punishment, unless it is required to ensure that an accused person will stand his trial when called upon. The courts owe more than verbal respect to the principle that punishment begins after conviction, and that every man is deemed innocent until duly tried and found guilty.

Further, the Court in Chidambaram’s case (2020/21) ruled that anticipatory bail should only be granted in exceptional cases and not as a rule, and that the power under Section 438 should be exercised sparingly. A view such as this runs contrary to the law articulated by the Constitution bench in Gurbaksh Singh and Siddharam Mhetre (reaffirmed in the case of Bhadresh Seth). Observing that arrests are necessary to elucidate several purposes in the investigation, the Supreme Court granted the request of the Enforcement Directorate in Chidambaram’s case by observing that anticipatory bail might compromise the investigation.


Let us now come to anticipatory bail in specific cases under special acts like POCSO. The seriousness of the charge is, no doubt, one of the issues to be considered during an application for anticipatory bail. There are also a number of cases/FIRs registered regularly under the POCSO Act, which makes the observation of the Court in Arun Kumar’s case relevant. But half of the registered cases are settled between the parties as these offences are committed by persons who have a relationship with the victim. After making the person sit in jail for three to four years without bail, these cases finally come to an end with a settlement between the parties or acquittal. It is alleged that many of the cases under the POCSO Act are false and registered out of enmity on various grounds, especially where the interests of various stakeholders are in dispute and there is an emotional outburst.

It is, therefore, heartening that Section 29 of the POCSO Act stipulates that the Special Court shall presume, unless the contrary is proved, that the accused committed, abetted or attempted the offence. Citizens complain that in cases of crimes under special acts such as POCSO, the basic rule of criminal law, namely the presumption of innocence, has been completely abandoned. And the bottom line principle, namely the presumption of guilt until proven innocent, can be demonstrated only by sacrificing the lives of many accused who languish in jail awaiting trial. Who will compensate them if they are proved innocent?

Therefore, some courts tend to view POCSO cases, especially those involving accused persons, through the lens of their personal liberty as their entire life and reputation will be at stake until their innocence is proven. Many times, courts have had to decide whether the presumption of guilt under Section 29 of the POCSO Act occurs at the pre-trial stage or after charges are framed during trial.

The same question was raised before the High Court of Delhi in Dharmender Singh @Saheb vs The state Govt of NCT of Delhi (2020), where it was held that “the Presumption of guilt engrafted in Section 29 would get triggered only once trial begins i.e., after charges are framed against the accused but not before that. It would be in operation only when the prosecution is first able to establish the facts that would form the foundation for the presumption under Section 29 of the POCSO Act to operate”.

A similar view was also taken by the Guwahati Court in Manirul Islam vs The State of Assam & Ors (2021), where it was observed that “the prosecution has failed to establish the foundational facts. The testimony of the prosecutrix is also found to be full of contradictions and hence, unreliable. From the impugned judgment and order we find that conviction of the accused on the basis of presumption drawn under Section 29 and 30(2) of POCSO. Therefore, we are of the view that in the absence of cogent evidence brought on record to prima facie establish the foundational facts, conviction of the accused cannot be based solely on presumption of guilt, premised on the precincts of the doctrine of reverse burden”.

This law of the POCSO Act has been used since its enactment as a “weapon of harassment” instead of being used as a means of obtaining justice. Innocent people who are charged under the POCSO Act suffer unwarranted persecution because the acts are cognizable. Those with ulterior motives can take advantage of this Act. Innocent people are not only deprived of the rights guaranteed by the Constitution, but are harassed by society.
As a result of all these important judgments in this jurisdiction, the apex court sends out such words of caution to all other courts on a regular basis. While taking into consideration the interests of the victim and the investigation agency, courts should determine whether the allegations are true and rule out any ulterior motives for arresting the applicant. When exercising anticipatory bail jurisdiction and custodial integration, a careful balance must be struck between societal interest and personal liberty.

The Court has correctly observed that custodial interrogation is one aspect along with other factors when deciding an anticipatory bail application, but at the same time, courts cannot reject such applications solely based on the seriousness of the crime, as in POCSOs or NDPSs. The other factor also needs to be considered. As a result, if the former is the only test, we would not be balancing constitutional rights, but rather, recalibrating the scales of justice.
Despite being a procedural law, the CrPC was enacted under the Constitution’s invulnerable rights enshrined in Article 21 and 22. Criminal courts must preserve, protect and enforce liberty, as enshrined in the Code and as guaranteed by Article 21. Consequently, criminal courts, and particularly trial courts, should be considered guardians of liberty. Failure by criminal courts would constitute an affront to liberty.

It is the pious duty of criminal courts to maintain a consistent vision in safeguarding constitutional values and ethos, as if they were high priests. The famous John E.E.D in Essays on Freedom and Power writes that liberty as one of the most essential requirements of modern man. “It is said to be the delicate fruit of mature civilization. It is the very quintessence of civilized existence and essential requirement of a man.” And the said right to life and liberty cannot be curtailed except by the procedure established by law and the procedure should be just and reasonable.

—Saju Jakob-Lily Thomas Jr is an advocate practising in the Supreme Court and Liza Arora is also an advocate

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