“Anticipatory Bail cannot be granted in Non-Bailable Offences where POCSO is involved and serious sexual harassment is committed by an accused and thus for investigation no A.B can be granted as which can result in significant loopholes and can adversely affect ongoing investigations.”
Recently, A.P High Court bench at Amravati, Andhra Pradesh. In the matter of Karthikeyan v. The State of A.P, where Cr. Petition was dismissed by the High Court, rejected the anticipatory bail plea of an accused in a sexual harassment case, remarked that denying and delaying the matter related to custodial interrogation can result in significant loopholes and gaps in the ongoing investigation that may adversely affect its integrity of the ongoing investigation.
Single J. bench HMJ T. Mallikarjuna Rao opined,- “In the anticipatory bail, the extraordinary privilege, should be granted only in exceptional circumstances, where the Court is prima facie convinced that Petitioner in this case is enroped in the crime and unlikely to misuse the liberty granted. The necessity for custodial interrogation of the Petitioner is paramount in this case to facilitate a thorough investigation into the accusations.”
The court was dealing with plea from an accused u/s 482 of BNSS for granting of bail under sexual harassment case which is non-bailable offence in nature.
Ruling from the court- Where, the Court was dealing with a criminal petition filed by the petitioner under Section 482 of the Bharatiya Nagarik Suraksha Sanhita (BNSS). The petitioner was charged under Sections 62 read with 64(1), 74, 75(2), and 333 of the Bharatiya Nyaya Sanhita, 2023 (BNS) and Section 7 read with 8 of the Protection of Children from Sexual Offences Act, 2012 (POCSO Act).
Where, Section 62 of BNSS deals with punishment for attempting to commit offences punishable by imprisonment for life or any other term of imprisonment, ensuring that attempts are punishable even if the intended crime isn’t completed. Also, with section 74 of BNSS addresses the crime of assault or use of criminal force against a women with the intent to outrage women modesty.
Further in addition u/s 333 of BNSS which deals with house trespassing committed with prior preparation to cause hurt, assault, wrongful restraint or fear or such actions, punishable with imprisonment up to seven years and a fine.
Also, the petitioner was further alleged under section 7 along with section 8 of POCSO Act, which involves sexual assault as any act committed on child, which is punishable with imprisonment ranging from 3 years to 5 years, along with potential fine.
Facts of case-
- The prosecution’s case was that the accused forcibly entered the victim’s house, beat her and attempted to commit rape.
- When she raised cries, he closed her mouth, beat her cheeks, and continued his attempt.
- On hearing her cries, the neighbor’s rushed in, and the accused escaped.
Petitioner’s Submissions-
- Petitioner contended that he was being falsely implicated owing to serious disputes with the de-facto complainant and that there was a three-day delay in reporting the alleged incident.
- Further, there was no material evidence of an attempt to commit rape, and the Petitioner was willing to furnish security and comply with conditions for bail.
Verdict of the Court-
- While denying anticipatory bail to the petitioner, held that in deciding whether bail should be granted in a non-bailable offence, the nature and gravity of the offence must be considered.
- The Court reasoned that while –“pre-trial imprisonment cannot be used as a substitute for punishment without the scrutiny of evidence by the Trial Court”,
- Taking into consideration the facts of the present case, granting bail to the petitioner may have an adverse impact on society.
The Court Observations-
“In a case containing serious allegations, the Investigating Officer deserves a free hand to take the investigation to its logical conclusion. It goes without saying that the investigation officer who has been prevented from subjecting the petitioner to custodial interrogation, can hardly be fruitful to find out prima facie substance in the allegations which are of extreme serious in nature. The possibility of the investigation getting effected, once the petitioner is released on bail is very much foreseen. Custodial interrogation can be one of the relevant aspects to be considered along with other grounds while deciding an application seeking anticipatory bail.”
Court noted in this case- With regards to the contention that there was delay in filing the report,
The Court noted that the alleged incident occurred on 04.01.2025, but the report was lodged on 07.01.2025, (total delay was of 3 days) BUT,
As the actual victim was unavailable until 06.01.2025.
She returned from Ahmedabad on 06.01.2025, and the report was subsequently lodged on 07.01.2025.
Therefore, it could not be asserted that no explanation was provided for the delay. In the absence of cogent material, the Court refused to accept the Petitioner’s contention that the delay resulted from deliberations and legal consultations.
-Additionally, the Court also noted that the Petitioner which is accused in this matter was previously involved in another case registered under Sections 376 r/w 511 IPC and Section 8 of POCSO Act, and custodial interrogation was necessary for further investigation.
Thus, by this means it is crystal clear that there was mens rea and guilty mind of an accused which having malafide intention and thus this petitioner should be convicted u/s 62 read with 64(1), 74, 75(2), and 333 of the Bharatiya Nyaya Sanhita, 2023 (BNS) and Section 7 read with 8 of the Protection of Children from Sexual Offences Act, 2012 (POCSO Act).
In Siddharam Satlingappa Mhetre v. State of Maharasthra (2011) 1 SCC 694, the Supreme Court laid down some firm guidelines to be followed while entertaining application under section 438. It clearly held that Courts should not restrict the ambit and scope of Section 438 which are not envisaged by Legislature. The Court laid down few important parameters like nature and gravity of the accusation and exact role of accused must be comprehended before arrest is made, criminal antecedents of the accused, flight risk, possibility of repeat offence. Also where it appears that the object of arresting is only to humiliate the applicant, prevention of unjustified detention and also reasonable apprehension of tampering of witness or threat to complainant.
‘Anticipatory Bail; when to be applied in Non-Bailable offences’
When any person apprehends that there is a move to get him arrested on false or trump up charges, or due to enmity with someone, or he fears that a false case is likely to be built up against him, He has the right to move the court of Session or the High Court under section 438 of the code of Criminal Procedure for grant of bail in the event of his arrest, and the court may, if it thinks fit, direct that in the event of such arrest, he shall be released on bail.
- Conditions that may be imposed by the court
The High Court or the Court of Session may include such conditions in the light of the facts of the particular case, as it may think fit, including:
(a) a condition that the person shall make himself available for interrogation by the police officer as and when required;
(b) a condition that the person shall not, directly or indirectly, make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the court or to any police officer;
(c) a condition that the person shall not leave India without the previous permission of the court.
- Anticipatory ball is not a blanket order for not to be arrested.
The applicant must show by disclosing special facts and events that he has reason to believe, that he may be arrested for a non-bailable offence so that the court may take care to specify the offence or offences in respect of which alone the order will be effective and it is not a blanket order covering all other offences.
- Cancellation of ABA
“An accused is free on bail as long as the same is not cancelled. The High Court or Court of Session may direct that any person who has been released on bail be arrested and commit him to custody on an application moved by the complainant or the prosecution.”
Accordingly, in this Karthikeyan v. State of A.P the High Court refused and dismissed the petition to grant anticipatory bail to the petitioner and consequently dismissed his petition.
Case Number: CRIMINAL PETITION NO: 1964/2025
Case Name: Karthikeyan v. The State of Andhra Pradesh
Dated: 04.03.2025 (date of judgement)
- Analyzed and Contributed by Adv. INDRAJ on 17.03.2025