Uttarakhand High Court
CRLA/113/2022 on 2 December, 2022
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IA No. 1 of 2022
In
CRLA No. 113 of 2022
Hon'ble Sharad Kumar Sharma, J.
Mr. Parikshit Saini, Advocate, for the
appellant.
Mr. Pratiroop Pandey, A.G.A., for the State
of Uttarakhand.
The appellant/applicant is a convict for the
commission of offence under Section 10 of the
POCSO Act.
It has been argued by the learned counsel for
the applicant, that for the purposes of attracting
Section 10 of the POCSO Act, for convicting an
accused person for his or her allegedly involved in
the commission of an "aggravated sexual
assault", there has had to be an assault, which falls
under definition of Section 9 of the POCSO Act,
and the nature of assault, which has been described
therein. Apart from it, the learned counsel for the
applicant has also argued, that until and unless a
charge is framed in relation to the commission of
the offence under Section 10 of the POCSO Act,
the applicant could not have been convicted by the
learned Sessions Court, in relation to the said
offence under Section 10 of the POCSO Act.
On the contrary, it has been argued by the
learned A.G.A, for the State, that in view of the
provisions contained under Section 222 of the
Cr.P.C., the Court can convict an accused for minor
offences, though he despite that he may not have
been charged for it. He further argues, that the
conviction of the applicant is permissible under law
even without framing of a charge, would be
justified in the light of the language used under
Section 222 of the Cr.P.C., to be read with the
observations, which has been made in para 35, 36
and 37 of the impugned judgment, where the Court
has drawn an inference, that the sexual assault,
which has been committed on the victim, would fall
to be within an ambit of an "aggravated sexual
assault", and hence, it was argued that he has been
rightly convicted under Section 10 of the POCSO
Act.
Lastly, the learned counsel for the applicant
argues, that the applicant has already been
languishing in jail for more than two years, and has
approximately served 50% of the sentence, which
in commensuration to the total sentence imposed
upon him is sufficient enough to release him on
bail.
After having heard the learned counsel for
the parties, this Court is of the view, that the first
argument which has been extended by the learned
counsel for the applicant, pertaining to non framing
of a charge under Section 10 of the POCSO Act, is
absolutely an untenable argument, in the light of the
implication of provisions contained under Section
222 of the Cr.P.C., where a minor punishment is
permissible, without even framing of charge, where
an act has been observed to be or found by way of
trial to be an "aggravated sexual assault" and would
be failing under Section 9 of the POCSO Act, and
the finding as recorded in that regard has to be
taken into consideration on a composite reading of
the finding recorded in para 36 and 37 of the
impugned judgment.
The second limb of argument of the learned
counsel for the applicant, that he has already served
more than two years of sentence, out of the total
sentence of five years. That in itself will not suffice
to be a logical reason to release the applicant on
bail, particularly, when the offence, which has been
complained of was committed on a minor, who, on
the date of commission of offence was only of
seven years of age.
In view of the aforesaid, the argument
extended by the learned counsel for the applicant in
support of the Bail Application is not accepted at
this stage, by this Court.
The Bail Application is accordingly rejected.
(Sharad Kumar Sharma, J.)
Dated 02.12.2022
Shiv
