Calcutta High Court (Appellete Side)
Yaqub Ali vs Unknown on 13 January, 2021
BR 13.1.
13 2021
CRA 225 of 2020
With
IA No. CRAN 1 of 2021
In the matter of :Yaqub Ali
...... appellant
In re: An application for bail under Section 389 of
the Code of Criminal Procedure..
,
Mrs. M.Gomes,
Mr. Nilendra Narayan Ray,
Mr. Kausik Biswas
.... For the appellant
Mr. Neguive Ahmed,
Ms. A. Gaur ... for the State
The petitioner was convicted and sentenced of
undergoing imprisonment for five years and to pay a fine
of Rs. 20,000/-, in default further imprisonment for
three years in Special Trial No. 03(09) 2020 for
convicting offence under Section 6 of the of the POCSO
Act.
It is submitted by the learned advocate for the
petitioner that he has preferred an appeal assailing the
judgment and order of conviction and sentence passed
by the trial Court and during pendency of the appeal
execution of sentence may be suspended and he should
be enlarged on bail. In support of his prayer for bail, it is
submitted by the learned advocate for the petitioner that
the accused was all along on bail during trial. He never
misused the condition for bail. He was sentenced to term
imprisonment for five years relying on the decision of the
Hon'ble Supreme Court in Kiran Kumar -vs- State of
Madhya Pradesh , reported in 2001 Cal Cr LR (SC)
page 6, he may be released on bail.
Learned P.P.- In-Charge , on the other hand has
raised objection against the prayer for bail. According to
her, the petitioner was not on bail. Subsequently she
agreed that the petitioner was on bail because after he
was convicted, the petitioner was taken into custody.
However, it is submitted by the learned P.P.-in-Charge
that the petitioner is an aged about of 55 years who
committed an offence under Section 6 of the POCSO Act
upon a minor girl aged about 8/9 years. Considering the
gravity of offence and unnatural lust of the petitioner she
raised objection against the prayer for bail.
It is true that in the ordering portion at page 20 it is
recorded by the learned Additional Sessions Judge cum
Special Judge under POCSO Act 1st Fast Track, Sealdah
that convict was taken into custody but in the same
judgment at page 2 under the heading charge framed it is
recorded that the accused person was produced before
the Court and the charge was read over and explained to
him. If the accused was on bail question of production of
the accused did not arise.
Be that as it may, this Court has given anxious
thought over the ratio of the judgment in Kiran Kumar's
case (supra). Kiran Kumar case was not passed by the
Hon'ble Supreme Court in a case under POCSO Act.
Here the allegation against the petitioner is that he being
a person of 55 years committed offence under Section 6
of the POCSO Act upon a minor girl of aged about 8/9
years. This goes to suggest unnatural lust of the
petitioner and the act of the petitioner should be
considered as a gross harm not only upon the victim but
also to the society at large
For the reasons as stated above, I am not inclined
to release the petitioner on bail. Prayer for bail is,
therefore, refused.
However, the petitioner is at liberty to file informal
paper book. On arrival of Lower Court Records mention
the matter for final hearing of the appeal at an early
date. On such mentioning the appeal will be finally heard.
( Bibek Chaudhuri, J. )
