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2021 DIGILAW 273 (JK)

Sunny Kumar v. UT of J&K

2021-06-03

SINDHU SHARMA

body2021
Judgment 1. The applicant, accused Sunny Kumar, has filed an application for grant of bail in FIR No. 57/2019 registered with Police Station, Bari Brahmana, Samba for offences under Section 354 RPC read with Section 8/10 Protection of Children from Sexual Offences Act (POCSO) Act. 2. The prosecution case in brief is that on 30.04.2019, complainant filed an application in the Police Station, Bari Brahmana, Samba that her child aged three years was studying in Mount Litera School in Nursery class since 12th April, 2019. After some days of admission, she started behaving strangely and after some time disclosed that the driver and conductor of her school bus used to tease her and that they used to kiss and touch her private parts. This incident occurred on her way to school. The complainant immediately approached the School Management the very next day and they assured her that they would look into the matter but no action was taken. The name of vehicle drivers is Ravi Kumar S/o Krishan Lal and Sunny Kumar S/o Puran Chand. The police on this complaint registered the FIR and started investigation in the case. 3. The challan was produced against the applicant Sunny Kumar and one Ravi Kumar in the Court of learned Special Judge, Samba on 24.06.2019. The charges were framed by the trial Court vide order dated 19.08.2019. 4. The applicant had moved an application for grant of bail before the Court of Principal Sessions Judge, Samba, who rejected the same vide order dated 10.04.2020 on the ground that in view of the seriousness of the offence, no ground for bail was made out. 5. The applicant submits that he has been implicated in a false and frivolous criminal case. According to him, the complainant had some score to settle with school management on the issue of fee of her child and there was also exchange of hot words with the helper of the vehicle, over the issue that her daughter used to say that driver Uncle beats her. The rude behavior of the helper and coupled with the fee issue has led to this complaint. The allegations according to him are only against the co-accused and not against him, as the applicant was not involved in the case. The delay in trial has violated applicant rights of personal liberty as guaranteed to him under the constitution of India. 6. The allegations according to him are only against the co-accused and not against him, as the applicant was not involved in the case. The delay in trial has violated applicant rights of personal liberty as guaranteed to him under the constitution of India. 6. The respondents have resisted the bail application by filing objections. Mr. A.M.Malik, learned Dy.A.G. submits that the applicant alongwith other accused are involved in the commission of offence against a three years old child and are being tried under section 354 RPC and under Section 8/10 of POCSO Act. The offences are heinous in nature, therefore, the applicant does not deserve any concession of bail. 7. Mr. Jagpaal Singh, learned counsel for the complainant submits that the applicant alongwith the co-accused committed a very heinous offence against a small three years old child which has had a very deep impact on the mind of the child. It is a case where allegations of sexual assault upon three years child and as per Section 29 of the POCSO Act, the court must presume the applicant guilty and proceed against the applicant, therefore, his application deserves to be dismissed at the very outset. 8. The provisions of the Cr.P.C. for grant of bail are applicable to the proceedings for the offences of POCSO Act, but while considering this application in accordance with the provisions of Section 439 Cr.P.C., the provisions of POCSO Act are also required to be taken into consideration. Section 29 raises a presumption of commission of offence under Sections 3, 5, 7 of the POCSO Act against a person who is prosecuted for the commission of offences under the said Act unless the contrary is proved. Sections 29 & 30 of the POCSO Act read as under: “29. Presumption as to certain offences - Where a person is prosecuted for committing or abetting or attempting to commit any offence under Sections 3, 5, 7 and Section 9 of this Act, the Special Court shall presume, that such person has committed or abetted or attempted to commit the offence, as the case may be unless the contrary is proved.” 30. Presumption of culpable mental state.-(1) In any prosecution for any offence under this Act which requires a culpable mental state on the part of the accused, the Special Court shall presume the existence of such mental stage but it shall be a defence for the accused to prove the fact that he had no such mental state with respect to the act charged as an offence in that prosecution. (2) For the purposes of this Section, a fact is said to be proved only when the Special Court believes it to exist beyond reasonable doubt and not merely when its existence is established by a preponderance of probability”. 9. In most cases, there is presumption of innocence towards the accused but Section 29 of the POCSO Act, creates a presumption of guilt on the part of the accused. Section 30 is about the presumption of mental state. In Badrinath Vs. Union Territory of J&K through Police Station Bari Brahamana, 2020(6) JKJ [HC] 255, it has been held in para 24 and 25 as under: “24. For the foregoing reasons, I am of the considered opinion that at the time of considering the bail application of an accused, who has been booked for the offences under Sections 3, 5, 7 & 9 of the POCSO Act, the presumption under Section 29 of the Act would come into play even at the pre-trial stage. The accused, of course, would have a right to bring to the notice of the Court the material or lack of it to show that the foundational facts giving rise to the presumption are prima facie not established in the case. 25. The Supreme Court in the case of State of Bihar vs. Rajballav (2017) 2 SCC 178 has held that the presumption of innocence of an accused is not applicable to the cases where there is contrary statutory presumption of his guilt such as when prosecuted under Sections 3, 5, 7 & 9 of the Act. To hold that presumption of innocence is available even to an accused booked for offences under POCSO Act, would be against the aforesaid ratio laid down by the Supreme Court.” 10. The object of the POCSO Act is to protect the children from the offence of sexual assault including the sexual harassment and pornography. To hold that presumption of innocence is available even to an accused booked for offences under POCSO Act, would be against the aforesaid ratio laid down by the Supreme Court.” 10. The object of the POCSO Act is to protect the children from the offence of sexual assault including the sexual harassment and pornography. The special law was enacted towards securing the interest of the children and that tender age of the children are not abused and their childhood and youth are protected so that they develop in a healthy manner. 11. The victim was three years old and the allegations of offences under Section 8/10 POCSO Act are against the applicant, driver of school Bus and the helper who were entrusted with safety taking her to school and dropping her back to home. The applicant was about 32 years of age, while the victim was only three years of age, the difference in the age of the minor victim and the applicant accused makes this offence very heinous and there is element of perversion is also involved in this case. This heinous allegation against him has shaken the confidence and trust of the child. 12. The applicant has submitted that delay in trial has affected his liberty and, therefore, he is entitled to be released on bail. The delay in trial is due to the circumstances beyond the control of the Special Court. This, however, cannot be the ground for admitting him to bail. 13. Similar view has been held in Criminal Petition No.2951/2020 c/w Criminal Petition No.3000/2020 the case titled Hanumantha Mogaveera Vs. State of Karnataka para 43 which reads as under: “As discussed above, there may be various reasons and circumstances beyond that control of the Special Court under which the conclusion of the proceedings within a period of one year may not happen. As already noted, the reasons for the same have been discussed above. Under such circumstances, the accused cannot enforce the right to be released on bail. No such right is envisaged under the said provisions of the Act and the same cannot be read into it by way of an interpretation which may go against the interest of the child victims. Under such circumstances, the accused cannot enforce the right to be released on bail. No such right is envisaged under the said provisions of the Act and the same cannot be read into it by way of an interpretation which may go against the interest of the child victims. If the aforesaid interpretation is to be made then, there would be every attempt made to delay the proceedings before the Special Court beyond the period of one year and seek release of accused on bail. Such a position cannot be encouraged not is it envisaged under the POCSO Act.” 14. There is sufficient material on record to prima facie show the involvement of the applicant in the alleged crime and in view of Section 29 of the POCSO Act, the presumption of innocence is not available to the applicant. 15. In view of the aforementioned reason, I do not find any merit in this application. The same is accordingly dismissed. The trial Court is directed to conclude the trial expeditiously, preferably within three months.