Gujarat High Court: While rejecting bail application of accused under Section 439 of Criminal Procedure Code, 1973, the bench of Samir J. Dave, J., held that offences under Protection of Children from Sexual Offences Act, 2012 (“POCSO Act”) should be dealt in stringent manner and no leniency should be shown to an accused.
In the present case, the victim is 12 years old, and the accused is charged with offences under Section 354-A, Penal Code, 1860 and Sections 10 and 18, POCSO Act. The accused filed an application under Section 439 seeking regular bail.
Placing reliance on Eera v. State (NCT of Delhi), (2017) 15 SCC 133, the Court noted the POCSO Act had been enacted to protect the children from the offences of sexual assault, sexual harassment, pornography and to provide for establishment of special courts for trial of such offences. By awarding a punishment commensurate with the act of sexual assault or sexual harassment, a message must be conveyed to the society at large that, if anybody commits any offence under the POCSO Act they shall be punished suitably, and no leniency shall be shown to them.
The Court stated that,
“Cases of sexual assault or sexual harassment on the children are instances of perverse lust for sex where even innocent children are not spared in pursuit of such debased sexual pleasure. It is to be noted that children are precious human resources of our country; they are the country’s future. The hope of tomorrow rests on them. But unfortunately, in our country, a girl child is in a very vulnerable position. There are different modes of her exploitation, including sexual assault and/or sexual abuse. The exploitation of children in such a manner is a crime against humanity and society. Therefore, the children and more particularly the girl child deserve full protection and need greater care and protection whether in the urban or rural areas. Children need special care and protection and, in such cases, responsibility on the shoulders of the Courts is more onerous to provide proper legal protection to these children. A minor who is subjected to sexual abuse needs to be protected even more than a major victim because a major victim being an adult may still be able to withstand the social rationalization and mental harassment meted out by society, but a minor victim will find it difficult to do so. Most crimes against minor victims are not even reported very often, the perpetrator of the crime is a member of the family of the victim or a close friend. Therefore, the child needs extra protection.”
The Court further noted that the victim was 12 years old, and the accused was a teacher. The teacher is expected to act as a protector. The accused, instead of showing fatherly love, affection and protection to the child against the evils of society, made her the victim of lust. Such heinous acts by the accused would cast a lifelong psychological and emotional impact on the victim. Crimes like this by a person of trust change the perception of a child to look forward towards life in a positive way. It is a case where trust has been betrayed and social values are impaired. Therefore, the accused does not deserve any sympathy or leniency.
The Court further opined that practice of amicable settlement is unwarranted when such a serious and heinous crime is committed. It also amounts to tampering with the witness or evidence by the accused. Such a heinous crime affects the entire society, and the relation between ‘Guru’ and ‘Disciples’ should be viewed very strictly.
Placing reliance on State of Kerala v. Mahesh, 2021 SCC OnLine SC 308, the Court held that the prima facie case has been clearly established against the accused. Hence, rejected the bail application.
[Nihar Ranjitbhai Barad v. State of Gujarat, R/Criminal Misc. Application No. 18985 of 2022, decided on 30-11-2012]
Advocates who appeared in this case :
Counsel for Accused:- Advocate AJ Yagnik;
Counsel for Respondents:- Advocate Param R Buch, Advocate C.M. Shah.