An application was filed seeking bail in a case under offences of Protection of Children from Sexual Offences (POCSO) Act, 2012 and Indian Penal Code (IPC), 1860.
FACTS OF THE CASE
The facts of this case were really shocking. The applicant was father of 11-yr-old victim girl. There were allegations against the applicant of raping her own daughter. The victim girl supported the prosecution version in her statement recorded under Sec-164 CR.P.C. The applicant was charged under Sec-376AB, Sec-323, Sec-506 of IPC and Sec-5m (Aggravated penetrative sexual assault) and Sec-6 (Punishment for aggravated penetrative sexual assault) of POCSO Act, 2012.
- The learned counsel of applicant submitted that there was a matrimonial dispute between the applicant and the mother of the victim, though he was taking care of his four children (all daughters). They said that in order to take revenge and to harass the applicant, the FIR was lodged by the mother of the victim. They said it was a false implication.
- It was further submitted that a father cannot commit such an offence when he is taking care of his four daughters. It was highlighted that there was no complaint whatsoever by other children.
- It was contended that the applicant is languishing in jail. There was no likelihood of early disposal of trial and the applicant undertook that if enlarged on bail, he will never misuse his liberty and will co-operate in the trial.
OBSERVATIONS BY THE COURT
- Court said that law on bail is well settled that “Bail is a rule and jail is an exception”. Bail should not be granted or rejected in a mechanical manner as it concerns liberty of a person. At the time of considering a bail application, the Court must take into account certain factors such as existence of a prima facie case against the accused, gravity of allegations, severity of punishment, position and status of the accused, likelihood of the accused fleeing from justice and repeating the offence, reasonable apprehension of tampering with the witnesses and obstructing the Courts as well as the criminal antecedents of the accused.
- Court further observed that the Court while considering an application for bail must not go into deep into merits of the matter such as question of credibility and reliability of prosecution witnesses which can only be tested during the trial. Even the ground of parity is one of the abovementioned aspects which are essentially required to be considered.
- Court noted that the grant or refusal of bail is entirely within the discretion of the judge hearing the matter and though that discretion is unfettered, it must be exercised judiciously and in a humane manner, compassionately and not in whimsical manner. It was observed that the Court should record the reasons which have weighed with the court for the exercise of its discretionary power for an order granting or rejecting bail. Conditions for the grant of bail ought not to be so strict as to be incapable of compliance, thereby making the grant of bail illusory.
- Lastly, court considered the facts of the matter not only shocking but inhuman also. Applicant, who was the father of victim, committed the offence of rape with her own 11-yr-old daughter and she supported the prosecution case in her statements recorded under Sec-161 and Sec-164 of CR.P.C. Court, while considering that it was a case where minor was subjected to such cruelty by the hands of her own father, i.e., the applicant.
The Hon’ble Court rejected the bail application.
– Vaishali Jain, Advocate & Associate – POSH at Work & Riddhima Khanna