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2016 DIGILAW 971 (CAL)

In Re Narayan Majumder v. .

2016-12-06

AMITABHA CHATTERJEE, NADIRA PATHERYA

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JUDGMENT : 1. By this application, the de facto complainant-petitioner seeks cancellation of the bail granted to the Opposite Party No. 2 by order dated 8th June, 2016 in G.R. Case No. 1054 of 2016 arising out of New Town Police Station Case No. 253 dated 15.05.2016. Counsel for the de facto complainant submits that the offence levelled against the Opposite Party No. 2 is under section 376(2)(f) and Section 6 of the Protection of Children from Sexual Offences Act, 2012. The said two sections were not read by the Court below properly. The age of the minor girl was also not considered by the Court below, and bail has been granted without considering the materials in the Case Diary properly. Therefore, the order dated 8th June, 2016 has been rendered perverse per se and is liable to be cancelled. 2. Counsel for the Opposite Party No. 2 submits that the anticipatory bail was granted to the Opposite Party No. 2 on 8th June, 2016 and no post-bail conduct can be alleged against the Opposite Party No. 2. The offence under section 376(2)(f) I.P.C. does not lie as both the Opposite Party No. 2 and the father of the victim girl are tenants. The said order dated 8th June, 2016 was passed only on consideration of the materials in the Case Diary which was produced before the court below. Therefore, it cannot be said that the said order is either perverse or without application of mind. 3. Section 6 of the Protection of Children from Sexual Offences Act, 2012 will not apply, in view of the medical treatment sheets and no injury being found. For the last six months, the Opposite Party No. 2 has been enjoying his freedom and this liberty of his ought not to be curtailed. 4. Having considered the submissions of the parties and on scrutiny of the Case Diary so also the medical treatment sheets at pages 11 to 13, the 164 statement of the victim girl and the 161 statements at pages 6, 72 and 73 so also the date of birth of the victim girl which will appear from the birth certificate at page-10 - a document, which ought to have been considered by the Court below, the Court below has based its order and granted anticipatory bail to the Opposite Party No. 2 based on the medical report alone. Although there is a mention of the 164 statement of the victim girl, but the said 164 statement of the victim girl is not the basis for passing the order. It is true that the victim girl is of nine years, but at this stage her 164 statement cannot be nullified and will have to be taken as recorded. The 164 statement of the victim girl and the 161 statement at pages 6, 72 and 73 were to be looked into. It is true that the medical treatment sheets does not support the offence under section 376(2)(f) of the Indian Penal Code. It must not be forgotten that Charge sheet till today has not been submitted and investigation is still ongoing. 5. Section 6 of the Protection of Children from Sexual Act, 2012 (2012 Act) deals with punishment for aggravated penetrative sexual assault, but to consider what aggravated penetrative sexual assault is, one must read section 5 and before reading section 5, section 3 must be read as it is section 3 of the 2012 Act which deals with penetrative sexual assault, the question of aggravate will arise only after the term 'penetrative sexual assault' is considered. Penetrative sexual assault, according to section 3, is committed when-- "3. Penetrative sexual assault....................................... (a) he penetrates his penis, to any extent, into the vagina, mouth, urethra or anus of a child or makes the child to do so with him or any other person; or" 6. In the instant case, we are only concerned with section 3(a) of the 2012 Act and therefore, having found that the conditions of section 3 have been fulfilled, we move on to section 5 which deals with aggravated penetrative sexual assault and the present case is covered by section 5 (m) which reads as follows : "5. Aggravated penetrative sexual assault- (m) whoever commits penetrative sexual assault on a child below twelve years; or.." 7. The victim girl is below 12 years of age. As will appear from her birth certificate, she is only nine years of age. Therefore, the contention of counsel for the opposite party No. 2 that section 6 will not be applicable, cannot be accepted. It will not be impertinent to mention that medical of the Opposite Party No. 2 was also conducted and we have considered the report at page-56 of the Case Diary. Therefore, the contention of counsel for the opposite party No. 2 that section 6 will not be applicable, cannot be accepted. It will not be impertinent to mention that medical of the Opposite Party No. 2 was also conducted and we have considered the report at page-56 of the Case Diary. On consideration of the aforesaid materials, which were before the Court below on 8th June, 2016, when order No. 3 was being passed, it cannot be said that the said materials were considered in the proper perspective and having not been considered in its true term, spirit and purport, renders the order dated 8th June, 2016 perverse per se and calls for cancellation of the anticipatory bail granted to the Opposite Party No. 2 by order dated 8th June, 2016. 8. Accordingly, the bail granted to the Opposite Party No. 2 by order dated 8th June, 2016 stands cancelled. 9. Let this order be communicated to the Special Court dealing with the POCSO 2012 Act, North 24-Parganas to take steps in accordance with law. Certified copy of this order, if applied for, be given to the parties on priority basis upon compliance of all formalities.