Title: Sushil Kumar v State of Himachal Pradesh
Citation: Cr.MPM No. 2705 of 2023
Coram: Hon’ble Mr Justice Rakesh Kainthla
Decided On: 9th November, 2023
Introduction:
The petitioner has filed the present petition for seeking pre-arrest bail. It has been asserted that F.I.R. No. 146/2023, dated 27.08.2023, was registered for the commission of offences punishable under Sections 376, 506 of IPC, Sections 6 and 21 of the Protection of Children from Sexual Offences Act (POCSO Act) and Section 67 of the Information Technology Act in Police Station Bhoranj, District Hamirpur, H.P. The petitioner was not made accused initially in the F.I.R. but, subsequently, he was made an accused for the commission of an offence Punishable under Section 21 of the POCSO Act.
Facts:
It was asserted that the victim was studying in 10+2 standard. In September 2022, there was a tournament in the school where, the main accused administered some substance to the victim and took her to the hotel, where he prepared an indecent video and raped her. He threatened the victim to make her video viral in case of reporting the incident to any person. The main accused subsequently uploaded the Video on the Facebook. The police registered the F.I.R. and conducted the investigation. The victim was found to be a minor.
The main accused had raped the victim in September 2022, November 2022, December 2022, January 2023, and 15th February 2023, when he was a minor but he had attained the majority in April 2023 at the time of the commission of offence. The main accused was arrested. It was found during the investigation that the incident had taken place in Hotel River View. The victim had visited the hotel four times in school dress. The Manager and owner of the hotel knew that the victim was in school dress and she was a minor but they failed to report the matter to the police. Hence, the offence punishable under Section 21 of the POCSO Act was made out against the petitioner.
learned counsel for the petitioner submitted that the offence punishable under Section 21 of the POCSO Act is bailable and the petitioner is entitled to the bail as a matter of right. There is no evidence that the petitioner was aware of the commission of a crime and the offence punishable under Section 21 of the POCSO Act was not made out against him. Hence, he prayed that the present petition be allowed and the petitioner be released on pre-arrest bail.
Court’s Analysis and Judgement:
A perusal of the Section shows that it provides imprisonment of six months/one year or/and a fine. It does not mention whether the offence is bailable or not. Since the POCSO Act does not provide the nature of the offence; hence, it has to be determined with reference to the Code of Criminal Procedure. The classification of the offences under the Code of Criminal Procedure clearly shows that if the offences are punishable with imprisonment for less than three years, the offences are bailable and non-cognizable. Section 21 of the POCSO Act provides a punishable of six months/1 year; therefore, the same will be a bailable offence as per the Code of Criminal Procedure.
The reason is that a person accused of a bailable offence is entitled to bail as a matter of right. Therefore, the present petition is not maintainable and the same is dismissed by the court.
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Written by- Sushant Kumar Sharma
