A Criminal Misc. Bail Application under Sec-439 CR.P.C. was filed after a Bail Application rejected by the Special Judge (POCSO)/Additional Sessions Judge, Kannauj in criminal case under Protection of Children from Sexual Offences (POCSO) Act, 2012 and Indian Penal Code (IPC), 1860.

Brief facts of the Case:

Applicant is a carpenter by profession and allegedly engaged for some work at the house of victim’s father. He committed rape with the victim, who is a minor girl of 3-year-old. The medical examination of victim was done and the report shows that her hymen was torn and there were swelling over labia major and tenderness present over genitalia. While recording her statement under Sec-164 CR.P.C., she communicated by words and actions that applicant raped her and blood was oozing out from her private parts. The applicant was arrested from the spot and FIR was lodged against him. Applicant is charged under Sec-376 of IPC and Sec-5 and Sec-6 of POCSO Act. A Bail Application was filed before by the applicant, which was rejected by the Special Judge (POCSO)/Additional Sessions Judge, Kannauj. Hence, the present application was filed.

Applicant’s Arguments:

The learned counsel for applicant submits that there was a delay of about 5 days in lodging FIR. They said that applicant was falsely implicated in the present case. They also submitted that the applicant was at victim’s father’s house for some carpentry job, however, there was some dispute on payment of wages.

Observation of the Court:

1. Court said that at the time of considering the Application of Bail, the Court must take into account certain factors such as existence of a prima facie case against the accused, gravity of the 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 criminal antecedents of the accused.
2. Court further noted that while considering an application for bail must not go into deep merits of the matter such as question of credibility and reliability of prosecution witnesses which can only be tested during the trial. They also said 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.
3. Court finally held that by considering the background of the given facts and legal position of the present case, it was prima facie evident that the applicant has committee an inhuman act of rape on a minor girl of 3 years. By considering the ordeals narrated by victim by words and signs and explained entire incident of rape and also the medical report showing that victim’s hymen was torn and swelling on private parts, court rejected the application.

– Vaishali Jain, Advocate & Associate – Child Safety at Work & Riddhima Khanna