The Delhi High Court has directed its Registrar (Vigilance) to seek an explanation from a trial court judge for passing a “non-reasoned” order while granting bail to a man accused of “sexually assaulting” a three-year old child under the Protection Of Children from Sexual Offences (POCSO) Act.
While setting aside a trial court order granting bail to the man, a single judge bench of Justice Saurabh Banerjee in its August 29 order said, “The Registrar (Vigilance) of this Court is directed to seek explanation on the administrative side from the concerned Judge, as to the reasons for passing the non-reasoned impugned order, report whereof shall be placed before the concerned Hon’ble Inspecting Judges Committee of this Court within one week for consideration.”
The order came in a plea challenging a February 4 order of the trial court in an FIR dated October 2, 2021 registered under various sections of the IPC, including 354 (assault of criminal force to woman with intent to outrage her modesty), 363 (kidnapping) and Section 10 (punishment for aggravated sexual assault) of the POCSO Act.
The High Court observed that the trial court’s order revealed that it had granted bail to the accused in a “purely mechanical manner without expressing any opinion or without application of judicial mind on the facts and/ or merits of the case”.
Justice Banerjee said that this is against the “very pre-requirements of granting bail” to an accused especially in the present case which involves not only offences under the IPC but also Section 10 of the POCSO Act.
“A bare reading of the FIR reveals that specific allegations have been levelled against the accused (and) under such circumstances, it is the duty of a Court while considering the grant bail to ascertain as to whether a prima-facie case exists against the accused. In the opinion of this Court, the impugned order being unreasonable, cryptic, ambiguous…against the settled proposition of law laid down by the Supreme Court and followed by various High Courts across the Country from time to time. This is especially whence grant of bail requires taking into consideration various factors primarily including the nature of the offence, heinousness of the crime, punishment involved and the role of the accused. While dealing with cases arising out of the POCSO Act, a Court is called upon to balance the ‘public cause’ of the society at large against the private interest/right,” the bench said.
The High Court also said that a court while passing such an order has to be mindful of purposes, objects and reasons of the POCSO Act.
On such offences Justice Banerjee said that once a child (or a woman) has been hurt physically, emotionally and mentally at a tender age, the same is bound to have adverse effects on their overall growth and development. On the purpose of the POCSO Act, the High Court said that it was designed to “safeguard the interest of children”.
The High Court reemphasised the basic tenets of the law where a court while considering the grant of bail is required to “judicially apply its mind” and be “satisfied” based on the facts made out from the FIR and the report of the investigating officer as well as the surroundings, documents and materials in existence.
It further said that apart from the bail conditions set out by the Supreme Court in Prasanta Kumar Sarkar vs. Ashis Chatterjee & Anr. and Deepak Yadav vs. State of Uttar Pradesh, the court while grant of bail to an accused in matters relating to sexual offences under POCSO Act should consider the “victim’s age, the age difference between the victim and the accused, the ferociousness of the offence, the relationship between the victim and the accused and the vicinity of residence of the accused and the victim and if they are in proximity then if the accused is willing to reside elsewhere, till the pendency of trial”.
The High Court thereafter said that as the plea and observations in the order are of “judicial importance”, a copy of the High Court order be sent to all the principal district and sessions judges through the High Court Registrar General for information and compliance and for better administration of justice.
As per the FIR, in the morning of October 2, 2021, the complainant father of a three-year-old girl upon waking did not find his daughter sleeping next to him on the first floor of the house. After looking for her, the father found the “child at the second floor of his house, where the accused was residing as a tenant, who was indulging in a grievous act of sexual misconduct with the child involved”.
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