Kerala HC Rejects Father's Bail in POCSO Case, Rules Mother Cannot Settle Incestuous Sexual Assault of Minor Daughter
The Kerala High Court dismissed a father's second bail application under POCSO, holding that a mother's affidavit of settlement cannot override the State's duty to prosecute incestuous sexual assault of a minor.
On 3 August 2026, Dr. Justice Kauser Edappagath of the High Court of Kerala at Ernakulam dismissed the second bail application filed by Shiju, a 50-year-old man from Chalakkudy Taluk, Thrissur, who is the sole accused in Crime No. 354/2026 of Chalakkudy Police Station. The charges against him are under Sections 10, 9(l), 9(n), 12, and 11(i) of the Protection of Children from Sexual Offences Act, 2012 (POCSO). The alleged victim is his own minor daughter, then aged 17 years. The application was filed under Section 483 of the Bharatiya Nagarik Suraksha Sanhita, 2023. The court declined to give legal weight to an affidavit filed by the victim's mother stating that the matter had been settled and that she did not wish to prosecute, finding that parents of a minor victim cannot compromise or withdraw from criminal proceedings involving incestuous sexual assault.
The Allegations and Custody History
The prosecution case is that the applicant, being the father of the minor girl, committed a series of acts of sexual assault against her. On 10 April 2026, at around 12:30 hours, he allegedly touched the thighs of the victim with intent to commit sexual assault. In February and March 2026, at approximately 1:00 a.m., he is alleged to have touched the victim's breast and uttered sexually coloured remarks.
Shiju was remanded to judicial custody on 17 April 2026 and had remained in custody continuously at the time this application was heard. Two earlier bail applications — Bail Appl. No. 2882 of 2026 (dismissed on 4 June 2026) and Bail Appl. No. 3846 of 2026 (dismissed on 22 July 2026) — had already been rejected by the High Court before the present application was filed.
The Settlement Affidavit and the Applicant's Submissions
The counsel for the applicant, Adv. Jerry Mathew, argued that Shiju was innocent and had been falsely implicated. He submitted that no material on record connected the applicant to the alleged crime and that bail ought to be granted.
A central argument in this second application was that, after the dismissal of the first bail application, a settlement had been reached between the applicant and the victim's mother. In support, the defence produced Annexure-3, an affidavit sworn by the mother of the victim dated 23 July 2026. In that affidavit, the mother asserted that the matter had been settled between the applicant and the victim, that she did not wish to prosecute the case further, and that the victim had no objection to the grant of regular bail to the applicant.
Senior Public Prosecutor Smt. Aneeda Beegum opposed the bail application, submitting that the alleged acts were part of the applicant's intentional criminal conduct and that he was not entitled to bail at this stage.
The Court's Assessment of the Prosecution Case
Justice Kauser Edappagath characterised the case as depicting “the tragic plight of a minor girl, aged 17 years, who was repeatedly subjected to sexual exploitation by her own father.” The court found the accusation grave and held that it prima facie disclosed a premeditated criminal act. The victim had, in her statement, narrated how she was subjected to sexual assault by the applicant.
The first bail application had been dismissed on account of the nature of the crime, the gravity of the offence, and the relationship between the accused and the victim — that of father and daughter.
Why the Settlement Affidavit Was Rejected
The court addressed the mother's affidavit with clarity. A threshold observation was that the mother had not contended that the incident did not occur. Her position rested entirely on a subsequent settlement. The court described the mother's conduct — having initially lodged the complaint and then moving to settle the matter — as a situation “aptly described as the fence itself devouring the crop.”
Justice Edappagath held that offences involving sexual assault of a minor are not compoundable. The law does not permit parents or guardians of a minor victim to compromise, withdraw, or express no objection to the continuation of criminal proceedings or to the grant of bail in relation to an offence of incestuous sexual assault. The court relied on Vishnu v. State of Kerala, 2023 (3) KLT 754, which had set out this position.
The court stated that the mother could not legally settle or compromise a criminal case against the father for sexual harassment or sexual assault of their minor daughter. Any such out-of-court settlement aimed at stifling criminal prosecution cannot receive the sanction of law, and such a settlement cannot override the State's duty to prosecute offences against children.
The judgment invoked the court's parens patriae jurisdiction, holding that courts bear a duty to safeguard the rights of minor victims of sexual assault even where parents fail to do so. The compromise was accordingly rejected and could not be accepted as a ground for bail.
Outcome
The bail application, Bail Appl. No. 4130 of 2026, was dismissed on 3 August 2026. Shiju remains in judicial custody. The court declined to release him on bail, and the settlement affidavit filed by the victim's mother was given no legal effect.