Criminal Proceedings in Marriages II

Posted on by Rudrajyoti Nath Ray

We are fully convinced, keeping overall facts and circumstances, applying long list of precedents evolved by this Court from Rosy Jacob v. Jacob A. Chakramakkal, (1973) 1 SCC 840 onwards, welfare of ‘M’ will be best served if she is in custody and guardianship of Father-‘R’.

The Protection of Children from Sexual Offences Act, 2012 is not meant for settling scores. Although Section 22 is meant to deter false complaints, first, accused may suffer prolonged incarceration, with loss of liberty, and secondly, accusation may adversely affect guardianship or custody proceedings being litigated in a different forum. Therefore, we are of considered opinion, certain precautions must be taken.

Court has on multiple occasions reiterated, arrest is not mandatory, even for cognizable offences, and power to arrest should be exercised only after scrupulously complying with relevant conditions set out under Section 35 of Bharatiya Nagarik Suraksha Sanhita, 2023 (pari materia to erstwhile Sections 41 and 41-A of The Code of Criminal Procedure, 1973). No doubt, existence of a ‘reason to believe’ is a prerequisite even where arrest is sought for alleged commission of offences under POCSO Act.

We are of opinion, Investigating Officer or Special Juvenile Police Unit (SJPU) shall engage services of an Expert in Child and Adolescent Psychiatry/Clinical Psychology in consultation with District Child Protection Unit (DCPU) or District Legal Services Authority (DLSA) where DCPU is not available, for aiding investigation. Upon receipt of the Psychological/Psychiatric Evaluation Report, Investigating Authorities shall decide whether there is a ‘reason to believe’ accused has committed the offence, for purpose of effectuating his arrest. However, Investigating Officer shall, in exceptional cases, where material is palpable, for reasons to be recorded in writing, dispense with engagement of services of an Expert in Child and Adolescent Psychiatry/Psychology.

– Hon’ble Justice K.V. Viswanathan, R v. E, [Special Leave Petition (Civil) No. 1092 of 2024] decided on 24.09.2026.   

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