Priya Gour
Published on: 6 August, 2022 at 18:48 IST
A sensitive stance was taken by the Delhi High Court where it observed there is need that the Courts be sufficiently sensitive in cases related to sexual assault. The Court was particularly referring to a matter where a mother of a minor victim had made allegations on her husband of sexual contact with the daughter, in her presence.
About the Case:
The wife had alleged that the petitioner had sexually assaulted her five year old daughter, in her presence in their house. FIR was registered against the petitioner under Section 377 of Indian Penal Code as well as Section 6 of POCSO Act. Later, the petitioner was charged under Section 376B (punishment for rape of minor under 12 years of age)
The petitioner had defended the allegations, claiming discrepancy in timings of the event and estranged matrimonial history. And thus, filed for a bail plea before the court, which was rejected.
Court Decision:
The Bench of Justice Anoop Kumar Mendiratta said, “It cannot be ignored that the future of the victim child also gets impacted, at least in close circles and any mother would normally desist from taking the issues which may adversely affect her own child in social circles.”
“The legal presumption as to the commission of offence and culpable mental state as legislated under POCSO Act has also to be kept in perspective while dealing with offences under POCSO Act.”
The petitioner had also made submission regarding Section 438 CrPC for grant of anticipatory bail in view of Criminal Law Amendment Act, 2018. The said Section 438(4) barred anticipatory bail for alleged commission of offences under Sections 376(3), 376AB, 376DA and 376DB IPC.
To this, the High Court noted about the welfare nature of the amendment that was made in the context of rising crimes against women and children.
“In view of sub-Section (4) of Section 438 Cr.P.C., the application for anticipatory bail is not maintainable before the learned Trial Court and the observations to this extent cannot be faulted with.”
The petitioner had submitted about the non invocation of Section 376AB IPC by the Additional Sessions Judge during the pendency of bail application, to which the bench remarked:
“The invocation of correct section by the Investigating Agency on pointing out by the learned Additional Sessions Judge during the stage of investigation is not barred…if an error in not invoking the correct section comes to the notice of the Trial Court/MM at the stage of investigation..”
“….cannot be deemed that the concerned judicial officer oversteps his jurisdiction in pointing out the error/deficiency though the power to invoke the relevant section of law rests with the Investigating Agency.”
The Court also quoted that that under Section 42 of POCSO Act, if the offence is punishable under POCSO Act as well as Section 376AB IPC and if the offender is found guilty of such offence, he shall be liable to punishment either under POCSO Act or under the IPC, whatsoever provides for punishment greater in degree.
Hence, the plea for anticipatory bail was dismissed by the Court.