Allahabad High Court
Pawan Agarwal vs State Of U.P. And 3 Others on 23 December, 2022
Bench: Siddharth
HIGH COURT OF JUDICATURE AT ALLAHABAD
Reserved on: 22.12.2022
Delivered on: 23.12.2022
Case :- APPLICATION U/S 482 No. - 24046 of 2022
Applicant :- Pawan Agarwal
Opposite Party :- State Of U.P. And 3 Others
Counsel for Applicant :- Vikas Sharma
Counsel for Opposite Party :- G.A.
Hon'ble Siddharth,J.
Heard Shri Vikas Sharma, learned counsel for the applicant and learned A.G.A for the State.
2. This application has been filed against order dated 02.07.2022 passed by the learned Court of Additional District and Session Judge/POCSO Court No.1, Special Court, Moradabad in Case Crime No.72 of 2021, S.C.No.164 of 2022, under Sections 323, 354-A, 506 I.P.C., 7/8 of the Protection of Children from Sexual Offences (hereinafter referred to as ''POCSO Act').
3.Learned counsel for the applicant has submitted that the applicant has applied for bail before the Court below and prayed for consideration of his bail application in the light of the judgment of the Hon'ble Apex Court in the case of Satender Kumar Antil Vs. Central Bureau of Investigation & Another [(2021) 10 SCC 773) and Aman Preet Singh Vs. C.B.I., [AIRonline 2021 SC 689], which has been rejected by the Court below by the impugned order holding that the case of the applicant is covered under category ''C' given in the judgment of the Hon'ble Apex Court in the case of Satender Kumar Antil (supra) and, therefore, his bail application cannot be considered regarding offences warranting below 7 years of punishment.
4.Learned A.G.A. has opposed the submissions and has supported the impugned order stating that the category ''C' in the aforesaid judgment of the Hon'ble Apex Court is regarding the offences punishable under Special Acts and even if the offences under the Special Acts are punishable below 7 years, no benefit can accrue to the applicant who has been implicated for offence under Section 7/8 of POCSO Act.
5. This Court after hearing the rival contentions finds that the Hon'ble Apex Court has categorised the offences under four categories as follows:
A) Offences punishable with imprisonment of 7 years or less not falling in category B & D.
B) Offences punishable with death, imprisonment for life, or imprisonment for more than 7 years.
C) Offences punishable under Special Acts containing stringent provisions for bail like NDPS (S.37), PMLA (S.45), UAPA (S.43D (5), Companies Act, 212 (6), etc.
D) Economic offences not covered by Special Acts.
6. After hearing the rival contentions this Court finds that the four categories of offences classified by the Hon'ble Apex Court in the case of Satender Kumar Antil (supra) are not mutually exclusive since while considering the cases under category ''C', the compliance of the conditions under Category ''B' and ''D' are required to be fulfilled. However, the Apex Court has not clarified as to how bail applications of the accused under POCSO Act would be considered when there is no special provision for consideration of bail application of an accused in POCSO Act like Section 37 of the NDPS Act.
7. The punishment under Section 7/8 of the POCSO Act is only five years. However, it cannot be denied that the provision of POCSO Act are stringent provisions exclusively made for protecting the children. The only provision in the POCSO Act which may be construed as stringent provision is Section 30 which provides for presumption of culpable mental state of accused. Clearly, in the present case, none of the offences alleged are punishable with imprisonment above seven years and therefore, the case of the applicant could have been considered under category ''A'. The only requirement before this Court below was to consider whether the applicant cooperated with the investigation or not.
8. The Apex Court in the latter judgment of Satender Kumar Antil Vs. CBI and Another passed in Misc.A.No.1849 of 2021 in Special Leave Petition (Criminal) No.5191 of 2021 has held in paragraph 64 that it does not wish to deal with individual enactments as each Special Act has got an objective behind it followed by rigour imposed.
9. This Court finds that in the POCSO Act there are number of offences like offence under Sections 6 and 14 which carry punishment upto10 years but under Section 7/8, 9/10 and 12, the punishment is below seven years.
10. Therefore, exclusion of the offences carrying punishment above 7 years or more from category ''A' is justified but not the offences carrying punishment below 7 years which though being part of a Special Enactment can be considered to be minor offence and would be covered under category ''A' of the judgment of the Hon'ble Supreme Court in the case of Satender Kumar Antil (supra). Needless to say that the rigour of Section 30 of POCSO Act would remain relevant in consideration of bail of the accused.
11. In view of the above consideration, the impugned order dated 02.07.2022 passed by learned Court of Additional District and Session Judge/POCSO Court No.1, Special Court, Moradabad in Case Crime No.72 of 2021, S.C.No.164 of 2022 is hereby quashed. He is permitted to consider the bail application of the applicant in the light of the above observations made by this Court.
12. This application is allowed.
Order Date :- 23.12.2022
Subham/Ruchi
