Bombay High Court: In a bail application under Section 439 of Criminal Procedure Code, 1973 (‘CrPC') for offences punishable under Sections 363 and 376 of Penal Code, 1860 (‘IPC') and Section 4 of Protection of Children from Sexual Offences Act, 2012 (‘POCSO Act'), Anuja Prabhudessai, J. allowed the bail while commenting on the object of stringent penal provisions under the POCSO Act for protection of children from offences of sexual assault, sexual harassment etc.
The Court perused the FIR lodged by victim's mother which reveals that the victim left the house and had not returned. Due to mother's suspicion of her daughter being kidnapped, offences under Sections 363 and 367 of IPC were registered. The victim was subsequently traced, and her statement revealed that she left home on 27-12-2020, stayed with her friend for 2-3 days and was afraid of returning home since she left without informing her parents. Meanwhile, on 29-12-2020 while she was sleeping in a rickshaw, the applicant took her to a terrace and forced sexual relationship, and the instance was repeated on 7-1-2021.
The Court acknowledged the fact that victim was a child as per Section 2(d) of POCSO Act, and the applicant was also a 22-year-old young boy at the time of incident. It further said that the victim's mother's statement prima facie indicates a consensual relationship.
The Court commented that “POCSO Act has been enacted to protect children from offences of sexual assault, sexual harassment etc., and contains stringent penal provisions as to safeguard the interest and the well-being of the children. The object is certainly not to punish minors in romantic or consensual relationship and brand them as criminals.”
The Court pointed out that the applicant has been in custody since 17-2-2021 and the trial is yet to commence, nor is likely to commence in the immediate future, considering the larger pendency. The Court expressed concern that further detention of the applicant will bring him in the association of hardened criminals, being detrimental to his interest.
The Court thus, granted bail while imposing suitable terms and conditions to make sure that the trial is not affected by the applicant's release.
[Imran Iqbal Shaikh v. State of Maharashtra, 2023 SCC OnLine Bom 1040, Order dated 26-4-2023]
Order by: Justice Anuja Prabhudessai
Advocates who appeared in this case :
For Applicant: Advocate Sunny Aaron Waskar, Advocate Harshada Morey, Advocate Shamish Marwadi
For State: Assistant Public Prosecutor S.V. Gavand, Advocate Veerdhawal Deshmukh,