Delhi High Court
Jaishree vs State Govt. Of Nct Of Delhi & Anr. on 20 November, 2015
$-30
* IN THE HIGH COURT OF DELHI AT NEW DELHI
DECIDED ON : 20th NOVEMBER, 2015
+ CRL.M.C. 2372/2015
JAISHREE ..... Petitioner
Through : Mr.Ram Niwas Buri, Advocate.
versus
STATE, GOVT. OF NCT OF DELHI & ANR. ..... Respondents
Through : Mr.Ashok K.Garg, APP with SI
Jitender Rana.
Ms.Divya Attri, Advocate for R2.
CORAM:
HON'BLE MR. JUSTICE S.P.GARG
S.P.Garg, J. (Oral)
1. Instant petition under Section 482 Cr.P.C. has been preferred
by the petitioner / complainant to challenge the legality and propriety of
an order dated 25.02.2013 of learned Metropolitan Magistrate by which
respondent No.2 was granted regular bail in case FIR No.63/13 registered
under Sections 354/506/452 IPC and 8/12 POCSO Act. Petition is
contested by respondent No.2.
2. I have heard the learned counsel for the parties and have
examined the file. FIR No.63/13 was registered at Police Station Burari
under Sections 452/354/506 IPC and 8/12 POCSO Act on petitioner's
complaint on 22.02.2013. It led to respondent No.2's arrest on
23.02.2013. A bail application was moved by his counsel before the
learned Metropolitan Magistrate on 23.02.2013 which was taken up for
hearing on 25.02.2013. On perusal of the bail application, it reveals that
the counsel omitted to disclose registration of FIR under Sections 8/12
POCSO Act also. In the status report, the Investigating Officer, however,
reported registration of FIR under Sections 8/12 POCSO Act. Though the
IO W/SI Neeraj appeared in person at the time of consideration of bail
application on 25.02.2013, she did not point out the omission of offences
under POCSO Act in the bail application. Considering that the FIR was
registered under the provisions of Indian Penal Code only, the Trial Court,
by the impugned order, granted bail to respondent No.2 as he was in
custody since 23.02.2013. Certain conditions were put at the time of grant
of bail.
3. Subsequently, application under Section 437 (5) Cr.P.C. was
moved by the victim / complainant for cancellation of bail on 08.03.2013.
It was disposed of after notice to the accused, his counsel and the
Investigating Officer. It records assurance of the Investigating Officer to
remain careful in future. The Trial Court was fair enough to record that
there was an irregularity in passing the bail order which she was unable to
rectify. Certain observations about the functioning of the IO / SHO were
also made. The said order was challenged before Special Court. By an
order dated 24.07.2013, the learned Addl. Sessions Judge dealing with
POCSO matters declined to cancel the bail.
4. Main grievance of the petitioner is that learned Metropolitan
Magistrate had no jurisdiction to entertain and grant bail to respondent
No.2 as offences under Sections 8/12 POCSO Act were exclusively triable
by a Special Court. Reliance has been placed on 'Ramrahit Singh vs.
Dhananjoy Singh & Ors.', MANU/WB/0218/2015, 'Ramu Ram vs. State
of Rajasthan & Ors.', 2014(2)RLW 987 (Raj), 'State of Andhra Pradesh
vs. Mohd.Hussain @ Saleem', 2014 (1) SCC 258, 'State of Gujarat vs.
Salimbhai Abdulgaffar Shaikh', 2003 (8) SCC 50, 'State of Tamil Nadu
vs. Paramasiva Pandian', 2002 (1) SCC 15 & 'State of Bihar vs. Braj
Nandan Raut', 2001 Cri.L.J. 3678.
5. Without going into controversy as to whether the learned
Metropolitan Magistrate was competent to grant bail under POCSO Act, it
is to be noted that at the time of grant of bail, the Trial Court was of
bonafide belief that respondent No.2 was booked by the Investigating
Agency only for commission of offences under Sections 354/506/452 IPC.
The counsel for the respondent No.2 had not revealed in the bail
application if Sections 8/12 POCSO Act were also there in the FIR. Since
respondent No.2 was in custody for the last two days and the statement of
the prosecutrix had already been recorded under Section 164 Cr.P.C., the
Trial Court deemed it fit to grant bail putting certain conditions. Perusal of
the file reveals that even FIR (At page-41 'annexure P-7') does not reflect
if Sections 8/12 POCSO Act were mentioned at the relevant place in
column No.2. In other copy of the said FIR (At page-30 'annexure P-4')
Sections 8/12 POCSO Act appear against column No. 2(ii). It is not clear
as to how and when, these Sections came to be added in the original FIR.
The discrepancy has remained un-explained.
6. Besides it, the Court dealing with POCSO matters after
considering the rival submissions of the parties did not find any ground to
cancel the bail on merits. Apparently, Special Court dealing with POCSO
matters has considered the merits of the case and did not find fault with
the bail granted to the respondent No.2 on merits.
7. Considering the peculiar facts and circumstances of the case
whereby due to bonafide mistake, bail was granted by the Trial Court and
the fact that the said order was upheld by the Special Court, no sound
reasons exist to cancel bail specifically when the investigation is over and
charge-sheet has already been filed before the Special Court.
8. The petition lacks merit and is dismissed. Trial Court record
(if any) be sent back forthwith with the copy of the order.
(S.P.GARG)
JUDGE
NOVEMBER 20, 2015 / tr
