Delhi High Court: A petition was filed under Section 482 of the Criminal Procedure Code for setting aside order dated 04-02-2023 passed by the Trial Court in FIR registered under Section(s) 342, 354, 354-B and 363 of Penal Code, 1860 (IPC) and Section 10 of Protection of Children from Sexual Offences, 2012 (POCSO). Saurabh Banerjee, J., sets aside the order in view of the factual matrix and the legal proposition involved in the present case.
As per the FIR, the complainant alleged that the accused who was residing as a tenant was caught indulging in a grievous act of sexual misconduct with the child of the complainant aged 3 years. The accused was then taken into custody on 02-10-2021. The accused filed a bail application which was thereby granted vide order dated 04-02-2023. The present petition was filed by the complainant challenging the bail.
Counsel for the petitioner submitted that the Trial Court had failed to consider the gravity and heinousness of the offence involved while granting bail to the accused and moreover, no reasonable amount of time to enter appearance and make submissions opposing the grant of bail was given to anyone on behalf of the child involved, thus the order is unreasoned and not apposite in law.
The Court noted that while considering matters involving sexual offences, a Court has to be mindful that the incidents of sexual violence against children (or against the woman) in a society always involve the life and limb of a child (or a woman) as what is at stake is the prestige and future of the victim which has been lowered and shattered into pieces. Once a victim being a child (or a woman) has been hurt physically, emotionally, and mentally at a tender age, the same is bound to have adverse effects on the overall growth and development of the said human being. It is thus in the interest of justice and of course the overall interest of society at large that proceedings are handled with due care and precaution, especially when the Court is dealing with an application for releasing the accused on bail.
The Court further noted that a perusal of the impugned order revealed that the Trial Court has granted bail to the accused in a purely mechanical manner without expressing any opinion or without application of judicial mind on the facts and/ or merits of the case. The same applies against the very pre-requirements of granting bail to an accused, especially in the present case, when it involves not only offences under Section(s) 342, 354, 354-B, 363 IPC but also Section 10 POCSO Act. A bare reading of the FIR revealed that specific allegations levelled against the accused under such circumstances, it is the duty of a Court while considering the grant bail to ascertain whether a prima-facie case exists against the accused.
The Court opined that while dealing with cases arising out of the POCSO Act, a Court is called upon to balance the “public cause” of the society at large against the “private interest/right”. Therefore, in cases of grant of bail, it is required to take into consideration various factors primarily including the nature of the offence, the heinousness of the crime, the punishment involved, and the role of the accused. The Court is also required to examine if there is a prima facie case made out against the accused or if there is a reasonable doubt created in the mind of the Court for granting bail to the accused. Therefore, in addition of the aforesaid conditions, a Court must be mindful of the purposes, objects, and reasons of the POCSO Act supplemental with the basic settled position enshrined in Section 438 of the CrPC and Section 439 of CrPC as held by the Supreme Court in various decisions.
Placing reliance on Deepak Yadav v. State of Uttar Pradesh, (2022) 8 SCC 559, the Court noted the considerations for a Court while granting bail to an accused that are as follows:
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whether there is any prima facie or reasonable ground to believe that the accused had committed the offence;
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nature and gravity of the accusation;
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severity of the punishment in the event of conviction;
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danger of the accused absconding or fleeing, if released on bail;
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character, behaviour, means, position and standing of the accused in society;
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likelihood of the offence being repeated;
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reasonable apprehension of the witnesses being influenced; and
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danger, of course, of justice being thwarted by the grant of bail.
The Court laid down the following considerations in addition to the aforesaid considerations that should be kept in mind while considering the grant of bail to an accused in matters relating to sexual offences especially POCSO Act:
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Age of the Victim;
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Age difference between the victim and the accused;
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Ferociousness of the offence;
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Relationship between the victim and the accused and;
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Vicinity of residence of the accused and the victim and if they are in proximity then if the accused is willing to reside elsewhere, till the pendency of trial.
[N v State, 2023 SCC OnLine Del 5387, decided on 28-08-2023]
Advocates who appeared in this case :
Ms. Kamna Vohra, Mr. Dipika Saxena, Mr. Shivam Tyagi, Mr. Deepanshu Dudeja, Ms. Manaswini Singh, Mr. B. Chaturvedi, Mr. Suraj Kumar and Mr. Rohan Khanna, Advocates for petitioner
Mr. Mukesh Kumar, APP for the State with SI Manish, PS. Welcome, Respondent no.2 in person.
Buy Code of Criminal Procedure, 1973 HERE
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