The Kerala High Court stated that the bail applications for offences alleging the child abuse under the POCSO Act should be handled with great caution, especially if there is an ongoing custody dispute between the parents.
A father who was accused of sexually assaulting his 10-year-old son was granted bail by Justice Ziyad Rahman, who emphasised the importance of exercising caution in such cases. The judge stated that when there is reasonable suspicion regarding the credibility of the allegations, courts should not hesitate to use the powers granted under Section 438 of the Cr.P.C to protect an individual’s personal liberty, dignity, and life itself. The judge also noted that personal liberty is a fundamental right guaranteed by the Constitution of India.
The court while referring to the decision of the court in Suhara and Others v. Muhammed Jaleel, observed an increase in the number of false cases being filed against biological fathers under the POCSO Act, which must be handled cautiously by family courts in cases involving custody battles.
In the present case, Adv. S. Rajeev argued on behalf of the petitioner, who was accused by his wife of sexually assaulting their son to prevent him from interacting with the child. The petitioner and his wife had pending litigation on the dissolution of their marriage before the family court, and the family court had issued several orders allowing the father to meet his child, which the mother had not complied with. Proceedings related to the violation of these orders were also pending before the family court.
The allegation against the father in this case was that during his court-ordered interactions with his child, he showed the child nude photographs of the victim from when he was younger and touched his private parts with sexual intent. The court scrutinised the family court’s orders and found that during previous interactions, there were no allegations raised by the mother and the interactions between father and son were smooth.
The court also noted that the child had been referred to a counsellor by the family court, who did not reveal any such instances of sexual assault. The court added that if such instances had occurred, the counsellor would not have recommended that the child be allowed to interact with his father more.
The court expressed doubts about the validity of the allegations against the petitioner and stated that an order to protect his personal liberty was necessary. The court emphasised that it could not ignore the trauma, loss of dignity, and other difficulties that an educated person with no criminal background like the petitioner would face if detained based on doubtful allegations. The court also noted that if the allegations were proven to be false, no compensation could make up for the loss suffered due to the detention.
However, the court made it clear that the accused must surrender to the investigating officer and cooperate with the investigation. The court imposed bail conditions accordingly.
Source: https://www.livelaw.in/news-updates/kerala-high-court-frivolous-pocso-fir-against-father-child-custody-battle-cautious-approach-bail-personal-liberty-223338