The Himachal Pradesh High Court recently comprising of a bench of Justice Satyen Vaidya while granting bail to an accused booked under the POCSO act observed that the POCSO Act, which punishes sexual interactions with minors, does not impose any special prohibition for grant of bail. (Pratap v State of Himachal Pradesh)
The bench remarked, "POCSO Act does not impose any special prohibition for grant of bail in offence(s) committed under the Act. Rather, Section 31 thereof makes provisions of Code of Criminal Procedure including provisions as to bail and bonds applicable to the proceedings therein."
Facts of the case
The case was registered against the petitioner on the basis of a written complaint filed by the complainant Sh. Nanak Chand alleging inter alia that his grand-daughter (victim) was not traceable since 11.04.2022 and as per the information with the family, she has been kidnapped by the petitioner. After registration of FIR, investigation was initiated. It was found that the date of birth of victim was 10.11.2005. She was recovered from the house of petitioner.
Her initial statement under Section 161 Cr.P.C. was recorded. Subsequently, the statement of the victim under Section 164 Cr.P.C. was also recorded before the learned Judicial Magistrate First Class. Her medical examination was conducted. On 9.5.2022 the victim was subjected to ultra-sonography in which it was found that she was pregnant by six weeks. On completion of investigation, the challan has been presented before the learned Special Judge, Rampur on 26.05.2022. The age of the petitioner was verified as 21 years.
Petitioner has prayed for grant of bail, in the above noted case, under Section 439 of the Code of Criminal Procedure on the ground that he is innocent.
Contention of the Parties
In response, the respondent has placed a record status report. As per the case of respondent, on 11.04.2022 petitioner kidnapped the victim and committed rape on her. It was alleged that the victim was recovered from the house of the petitioner. Petitioner was fully aware of the fact that the victim was below 18 years of age.
Courts Observation and order
The bench at the very outset observed that the Hon’ble Supreme Court in X (Minor) vs. The State of Jharkhand and another [Cr. Appeal No. 1391 of 2022 (Arising out of SLP (Crl.) No. 9317 of 2021)], refused to accept ‘love affair’ as relevant consideration for grant of bail in POCSO offences keeping in view the age of victim in that case which was only 13 years.
The bench further noted that, "The facts of instant case divulge that at the time of alleged offence victim was 16 years 5 months old and the petitioner was 21 years old. Victim was recovered from the home of petitioner and is inhabited by other members of the family of petitioner including his parents. Victim has nowhere alleged that petitioner had used force or deceit or any other alike means to take her to his home. All these facts have been noticed only to assess gravity and seriousness of allegations against the petitioner.
POCSO Act (for short ‘Act’) does not impose any special prohibition for grant of bail in offence(s) committed under the Act. Rather, Section 31 thereof makes provisions of Code of Criminal Procedure including provisions as to bail and bonds applicable to the proceedings therein."
The bench noted that the petitioner has been in custody since 17.04.2022. The trial was going to take time before conclusion. The charges against petitioner are yet to be proved. Pre-trial incarceration is not the rule. No past criminal history has been attributed to the petitioner. Moreover, further detention of petitioner in judicial custody will not serve any fruitful purpose, rather may prove prejudicial to the rights of petitioner, who also is in early and career building years of his life.
The bench allowing the petition remarked, "In the peculiar facts and circumstances of the case, the application is allowed and the petitioner is ordered to be released on bail in case registered vide FIR No. 24 of 2022 dated 16.04.2022 at Police Station, Nirmand, District Kullu, H.P. under Sections 363, 366A, 376 IPC and Section 4 of the POCSO Act, on his furnishing personal bond in the sum of Rs.50,000/- (Rs. Fifty Thousand) with one surety in the like Any observation made hereinabove shall not be taken as an expression of opinion on the merits of the case and the trial Court shall decide the matter uninfluenced by any observation made hereinabove. The petition is disposed of accordingly."
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