In this Writ Petition the High Court was considering the plea seeking issuance of certain guidelines for the working of the POSCO Act.

Vide orders dated 25.11.2019 and 27.01.2020, the High Court directed all Criminal Courts in Delhi to follow the Delhi High Court Practice Directions dated 24.09.2019 laid down in relation to amended Section 439 of the Code of Civil Procedure, 1973 which provides that notice/information be conveyed to the victim or her family members prior to entertaining an application seeking bail by the accused in cases of sexual offences under Section 376(3), 376-AB, 376-DA and 376-DB, IPC be implemented in cases of offences under the POSCO Act.

Further, vide Order dated 27.01.2020 the court noted that in POSCO offences which may arise in cases where the crime has been perpetrated by a close family member, issuing of notice to giving information to such family member in line with the Practice Directions, would not serve any purpose and that in such cases notice be issued to the concerned Child Welfare Committee and a copy of such notice/information be also sent to the Delhi State Legal Services Authority (‘DSLSA’). The court also directed the National Commission for Protection of Children Rights (‘NCPCR’) and State Commission for Protection of Children Rights (‘SCPCR’) to ensure that they comply with the mandate of Rule 6 of POSCO Rules in relation to monitoring and implementation of the provisions of the POSCO Act, strictly and faithfully.

Aggrieved by the order of the Sessions Judge Order by which the accused was released on interim bail for one month without issuance of notice of the bail application to the complainant, the victim through the natural guardian approached the High Court seeking cancellation of bail.

The court in assessing the facts of the case held that the order granting bail was passed without informing the complainant, who is the mother of the victim in this case. In this regard, the court issued notice.

Further, it held that courts are bound to follow the Practice Directions dated 24.09.2019 and orders passed in the case of Reena Jha & Anr. v Union of India & Ors. The Registrar General of the High Court was directed to once again circulated the Practice Directions and relevant orders passed in the case of Reena Jha & Anr. v Union of India & Ors, to courts dealing with POSCO cases.

Relevant Paras: 14 and 15

Facts: A Criminal Objection Petition had been filed for cancellation of bail granted by the Principal Sessions Judge (Mahila Court-Full in charge), Thoothukudi, Thoothukudi District, Tamil Nadu. The Petitioner/ defacto complainant was the father of the victim girls. The accused had taken compromising photographs of the victims. The accused had deceptively given gifts, etc. to the victims to show he was interested in their future. Further, he had harassed them by taking them on a holiday to Kodaikanal and had threatened the victims by showing them their photographs that he had taken.

Decision: The High Court cancelled the bail that had been granted by the Sessions Court on the grounds inter alia that a perusal of the Whatsapp conversation that the accused had with the victims revealed the ill-motive of the accused. It observed that the bail had been granted without a proper perusal of the judicial record. The bail was granted circumventing the decision of the Supreme Court which had clearly held that the accused had to surrender and only then apply for bail. Further, it was not known how many photos of the victim girls were available in his cell-phone and other devices and also considering the future of the young girl children’s life, a proper investigation in the matter was warranted.

Facts: A petition was filed under Section 482 of the Cr. P.C., 1973 assailing an order of the Sessions Court where the Respondent was arrayed as a sole accused and was granted anticipatory bail. The Respondent was accused of having abused a minor boy aged 13 years.

Decision: The Court observed that if the order granting bail is a perverse one or passed on irrelevant materials, it can be annulled by the superior court. There was a need for ascribing reasons and the Superior Court had the powers to cancel the same on the grounds of perversity and manifest illegality. The Public Prosecutor, in the lower court had clearly submitted that investigation was in progress and if bail was granted, the accused was likely to influence and threaten the victim boy and his family and he is also likely to abscond. The bail application of the other accused in related cases were already pending at the time of the consideration of this bail application and the High Court was unable to discern as to what weighed in the mind of the court below while taking a different stand insofar as the applicant is concerned. Even the avocation of the respondent herein had not been mentioned in the order. The Court held that the Sessions Court had granted pre-arrest bail on irrelevant considerations and by keeping out of consideration the relevant factors. Thus, the order granting bail to the respondent was cryptic, perverse, manifestly erroneous and unreasonable.

Important Extracts: 

“17. Keeping in mind, the aforesaid aspects, viz., the factors which are to be borne in mind while dealing with an application preferred under Section 438 of the Cr.P.C. involving serious offences under Act 32 of 2012, the need for ascribing reasons and the powers of the Superior Court to cancel the same on the grounds of perversity and manifest illegality, I shall deal with the submissions advanced by both sides.

 18. As extracted in paragraph (6), all that the learned Sessions Judge has mentioned was that the application was not seriously opposed by the learned Special Additional Public Prosecutor. This fact is seriously disputed. However, it is evident from the order passed by the court below that the Prosecutor had submitted that the investigation is in progress and if bail is granted, he would influence and threaten the victim boy and his family and he is also likely to abscond. Much more disturbing is the fact that the regular bail applications of Ali and Sainudheen @ Kuttukka were pending before the court when the application for anticipatory bail was considered by the learned Sessions Judge. By detailed orders dated 29.11.2018 and 10.11.2018, both those applications were dismissed. On going through the impugned order, I am unable to discern as to what weighed in the mind of the court below while taking a different stand insofar as the applicant is concerned. Even the avocation of the respondent herein has not been mentioned in the order. It was incumbent upon the Sessions Court to exercise its discretion judiciously, cautiously and strictly in compliance with the basic principles laid down in a plethora of decisions of Apex Court as well as this Court on the point.

20. I am constrained to observe that in the instant case, the learned Sessions Judge completely lost sight of the basic principles and relevant considerations governing the subject. I hold that the learned Sessions Judge has granted pre-arrest bail on irrelevant considerations and by keeping out of consideration the relevant factors. I hold that the order granting bail to the respondent is cryptic, perverse, manifestly erroneous and unreasonable.”

Relevant Paras: Para 30 onwards

Facts: The application for cancellation of bail was filed in respect of bail granted to the three Respondent-Accused by the Sessions Court. When the bail application had come up for hearing, an application had been moved by the Investigating Officer for grant of three days time for obtaining documents and filing para-wise response to the bail application. Another application had been moved by the Additional District Government Counsel, Criminal, making similar request since he had not received the documents of the prosecution including the case diary. The application of the IO had been dismissed whereas no orders were passed on the application moved by the Government Counsel and bail was granted on the same day. The bail was arrayed before the High Court on the grounds that the same was passed in haste and without any reasonable opportunity to the prosecution.

Decision: The High Court cancelling the bail order observed that the Sessions Court had while disposing of the IO’s application recorded in its order that the Additional District Government Counsel (Criminal) has asserted that he is ready to advance arguments on bail on the ground of case diary which is available. Hence, no further comments were needed and accordingly, the application seeking time bears no cogent ground and was rejected. Further, the second application was very much in existence and it was not understood as to why the Sessions Court did not dispose of the same. In this backdrop, the recording of the order on the application moved by the Investigating Officer that the Additional District Government Counsel (Criminal) had agreed to proceed with the arguments became seriously doubtful. The recital contained in the bail order about the matter having been heard on behalf of the State and the material having been perused is under a serious cloud. It was not understood how the Court had relied on the Case Diary when the same had not been relied upon by the Public Prosecutor.

The Court had erroneously recorded that there were no criminal antecedents. The antecedents could have been brought to the fore had the Public Prosecutor received the opportunity to peruse the Case Diary and advance arguments. The bail application was heard and granted for irrelevant considerations by ignoring the process of law.

Important Extracts:

“37. It is here that the Court may record that this is a bail cancellation application that stands co-related with the provisions Sub-Section (2) of Section 439 Cr.P.C. but at the same time the powers under Section 482 Cr.P.C. are clearly attracted wherever there is a miscarriage of justice and gross violation of procedure thereby subverting the cause of justice, that too even on account of the conduct of a Judicial Officer acting in haste. The High Court in exercise of such powers can proceed to correct and rectify any such error and therefore even applying the ratio of the judgments that have been relied upon by the learned Counsel for the opposite parties on the parameters of cancellation of bail, such an instance, would be also an illustrative example where a bail can be cancelled when it is found that the bail has been granted in undue haste and without reasonable opportunity to the Public Prosecutor as is evident on the facts of the present case.

44. Learned counsel for the opposite parties have vehemently urged that in the absence of any reliable material and in view of the contradictory statement under Section 164 and the long span of time, after which the FIR came to be lodged, clearly establishes that the opposite parties have been falsely implicated on the notions and apprehensions of the complainant, who has obvious reasons as indicated above, has tried to blackmail the opposite parties. Having gone through the ingredients it would have been appropriate for the Court below to have allowed the prosecution to file it’s response and then assess the case diary and material for the purpose of consideration of grant of bail or otherwise. As indicated above, the entire process was concluded as if the grant of bail had been preordained. In the circumstances, there cannot be a presumption of the impugned order having been passed in good faith. Rather, the entire episode indicates that the manner in which the bail was granted almost on the eve of the retirement of the officer concerned, that too even without any opportunity being afforded to the prosecution in the real sense, the grant of bail was clearly vitiated.

45. The Court below as rightly urged by the learned Additional Advocate General has not discussed the ingredients of the provisions of the POCSO Act and it’s implications, and therefore there is a total absence of relevant consideration of the aforesaid provision of law that raises a strong presumption against the accused. It has also been rightly urged, and is evident, that the learned Judge took into consideration that there were two possible views in the matter and has then recorded a positive finding to disbelieve the story of the prosecution and the statement of the prosecutrix. The Court below certainly travelled beyond the parameters of considerations for bail by recording findings on evidence which has to be avoided at the stage of bail.

46. Shri Vishal Dixit, learned counsel appearing for the accused raised a plea that speedy justice did demand the disposal of the bail application on the very next day of it’s moving. The Court is unable to appreciate the said argument as the learned counsel has not appreciated the distinction between hasty justice and speedy justice. The argument is too thin to plough and too thick to drink. A court while dealing with such serious matters having the potential of wide ramifications has to act with gravity and patience. It is therefore trite to remember that safety first and speed afterwards.”

Facts: The Respondent- Accused herein had been granted bail by the High Court. The State of Bihar assailed the same in an SLP filed before the Supreme Court. When the SLP was taken up, the High Court’s order had been kept suspended by the Supreme Court for some time till certain aspects of the investigation had been completed. The matter thereafter was taken up for final disposal when the Government argued that the individual should be kept in custody for the remaining period of the trial.

Decision: The Supreme Court observed that this case fell in the category where the order granting bail was passed by ignoring material evidence on record and without giving reasons which could make it perverse and contrary to the principles of law. The appellant was not seeking cancellation of bail on the ground that the respondent misconducted himself after the grant of bail or new facts have emerged which warrant cancellation of bail.

The case record and the earlier applications that were moved by the Respondent indicated that the trial court was persuaded by the arguments of the that direct and specific allegations had been levelled against the Respondent of committing rape upon the victim minor girl and he was identified by the victim during the course of investigation, the bail of the co-accused had been rejected and the case of the Respondent was on graver footing. The Respondent had a long criminal diary. The State administration had in fact deputed a force of 1+4 for the safety and security of the prosecutrix and her family. Despite the same, the High Court had made casual and cryptic remarks that there is no material showing that the accused had interfered with the trial by tampering evidence. On the other hand, it had discussed the merits of the case/evidence which was not called for at this stage. No doubt, in a particular case if it appears to the court that the case foisted against the accused is totally false, that may become a relevant factor while considering the bail application. However, it could not be said at this stage that the present case fell in this category. That would be a matter of trial. Therefore, the paramount consideration should have been as is pointed out above, whether there are any chances of the accused person fleeing from justice or reasonable apprehension that the accused person would tamper with the evidence/trial if released on bail. These aspects were not dealt with by the High Court appropriately and with the seriousness they deserved. The provisions of Section 29, POCSO Act were ignored. This constituted a sufficient reason for interfering with the exercise of discretion by the High Court.

Important Extracts:

“We may observe at the outset that we are conscious of the limitations which bind us while entertaining a plea against grant of bail by the lower court, that too, which is a superior court like High Court. It is expected that once the discretion is exercised by the High Court on relevant considerations and bail is granted, this Court would normally not interfere with such a discretion, unless it is found that the discretion itself is exercised on extraneous considerations and/or the relevant factors which need to be taken into account while exercising such a discretion are ignored or bypassed. In the judgments relied upon by the learned counsel for the respondent, which have already been noticed above, this Court mentioned the considerations which are to be kept in mind while examining as to whether order of bail granted by the court below was justified. There have to be very cogent and overwhelming circumstances that are necessary to interfere with the discretion in granting the bail. These material considerations are also spelled out in the aforesaid judgments, viz. whether the accused would be readily available for his trial and whether he is likely to abuse the discretion granted in his favour by tampering with the evidence. We have kept these very considerations in mind while examining the correctness of the impugned order.

We may also, at this stage, refer to the judgment in the case of Puran v. Rambilas & Anr., wherein principles while dealing with application for bail as well as petition for cancellation of bail were delineated and elaborated. Insofar as entertainment of application for bail is concerned, the Court pointed out that reasons must be recorded while granting the bail, but without discussion of merits and demerits of evidence. It was clarified that discussing evidence is totally different from giving reasons for a decision. This Court also pointed out that where order granting bail was passed by ignoring material evidence on record and without giving reasons, it would be perverse and contrary to the principles of law. Such an order would itself provide a ground for moving an application for cancellation of bail. This ground for cancellation, the Court held, is different from the ground that the accused misconducted himself or some new facts call for cancellation.”

Facts: A Criminal Revision Petition had been filed against bail orders granted in respect of an accused police officer. The accused police officer had allegedly sexually assaulted his two minor daughters.

Decision: On a perusal of the case records, the Court observed that it appeared that there was a prima facie material for establishing the case of the prosecution against the accused Police Officer Md. Nurul Islam. It is now fairly settled law that the bail order for granting bail to the accused who involves in heinous offence, cannot be cryptic and reason should be recorded for granting bail after carefully considering the prosecution case as well as the material available on record and also at the same time while passing order for bail, there shall not be consideration on the merit of the prosecution case. It is also fairly settled that once the bail had been granted it should not be cancelled unless there is evidence that the conditions of bail are being infringed. But it is to be kept in mind that the concept of setting aside the unjustified, illegal or perverse orders is totally different from the concept of cancelling the bail on the ground that the accused had misconducted himself or because of some new facts requiring such cancellation. The High Court under Section 439(2) of the Cr.P.C. has the power to see as to whether the bail order granted by the court below is unjustified, illegal or perverse or not. If the bail order is vitiated by serious infirmity, the accused in whose favour an illegal bail order had been granted could be directed to commit to custody.

The Court set aside the bail orders observing that they had been passed by non-application of mind and also ignoring the relevant material indicating prima facie involvement of the accused Police Officer Md. Nurul Islam.

Facts: The Appellant had allegedly sexually assaulted the prosecutrix (his niece) of 14.5 years of age from October, 2010 to 10th February, 2013. The appellant is related to the prosecutrix being his uncle. The accused was a visitor to the father of the prosecutrix at their house and used fiduciary relationship to sexually exploit her. The learned Trial Court convicted the appellant for the offences charged and sentenced the appellant in the manner indicated hereinabove. While considering the third application for suspension of sentence, the High Court passed an order on 09.12.2016 admitting the appellant to bail.

In the present decision, the High Court explored the locus of the complainant/prosecutrix to file an application for cancellation of an order of suspension of sentence.

Decision: The Court observed that the victim has a right to seek cancellation of an order of suspension of sentence, as it is her rights and honour, which is in issue apart from the crime against humanity protected by the State.

Important Extracts:

“22. The judgment in Puran’s case (supra) arises out of an order passed by the High Court cancelling bail granted by Additional Sessions Judge. The Court has drawn distinction when conditions of bail are being infringed such as interference or attempt to interfere with the due course of administration of justice or evasion or attempt to evade the due course of justice or abuse of the concession granted to the accused in any manner or when the cancellation of bail is sought when bail is granted by ignoring material evidence on record or a perverse order granting bail is passed in a heinous crime. Such an order was said to be against the principles of law. That was a case of an offence under Section 498 and 304-B of IPC. The Court noticed that such offences are on the rise and have a very serious impact on the Society. The Court held that concept of setting aside unjustified, illegal or perverse order is totally different from the concept of cancelling the bail on the ground that accused has misconducted himself or because of some new facts require such cancellation. The Court considered an argument that a third party cannot move a petition for cancellation of bail as the prosecution has not moved for cancellation. The Court held that an application for cancellation of bail is not by a total stranger but by the father of the deceased. Therefore, it was held that powers so vested in the High Court can be invoked either by the State or by an aggrieved party. The said power could also be exercised suo motu by the High Court. In view of the aforesaid judgment, which pertains to era prior to amendment in Section 372 of the Code giving right to a victim to file an appeal against the order of conviction, clearly gives right to the prosecutrix, a victim of heinous crime on her person to approach this Court for cancellation of bail.

23. Once right of appeal has been given to a victim, it shall include all ancillary rights which are attached with the right to appeal. Such right to appeal will include right to seek cancellation of bail if the victim is aggrieved against such an order.”

R/Criminal Appeal No. 884 of 2019

Facts: The appellant has challenged the impugned judgment and order passed by the learned Special Judge and Additional Sessions Judge, Jamnagar enlarging the respondent No. 2 on bail.

Decision: The Gujarat High Court allowed the appeal quashing the bail order passed by the Sessions Judge. It observed that the learned Sessions Judge has wrongly exercised the discretion in favour of the respondent No. 2 releasing him on bail by ignoring relevant consideration and statement of the victim recorded under Section 164 of Cr.P.C. wherein she has categorically stated that against her consent and desire rape was committed by the respondent No. 2 with her and wrongly observed that it was the case of consent.

Facts: The prosecutrix-complainant was aged 15 years and the petitioner was accused No. 1 and his parents were accused Nos. 2 & 3 in the said case. It was alleged that when ‘X’ was alone in the house at Nandageri village, the petitioner trespassed into the house and committed rape on her and intimidated her of her life, if she reveals the incident to anyone. Bail was granted to the accused however, after the bail was granted, it was alleged that the accused had intimidated the prosecutrix contravening one of the conditions of bail granted. The bail was thus cancelled and the cancellation of the bail was challenged before the Karnataka High Court.

Decision:The Court allowed the challenge to the cancellation and thus restored the bail. It focussed on the delay in filing the complaint alleging contravention of the bail conditions. The allegations that the bail conditions were violated had not been adequately proved.

Important Extracts:

“9. There is no dispute that though the complaint was registered on 26.01.2019 since about eight months no charge sheet is filed in Crime No. 46/2019. There was ten days delay in filing the complaint. In Ms. X Vs. The State of Telangana and another 2018(3) Crimes 24 (SC) relied upon by the learned counsel for the petitioner, the facts and circumstances were similar. In the said judgment, it was held that it is a settled principle of law that bail once granted should not be cancelled unless cogent case based on supervening event has been made out.

10. In the case on hand, the application for cancellation of bail was moved by the Special Public Prosecutor. The affidavit of the victim girl was also not filed to substantiate the allegations. She has not moved the application. There was delay in filing the complaint as well as in filing the application for cancellation of bail.

11. The very fact of respondent-Police not filing the charge sheet for about eight months in the subsequent case runs counter to the material produced by the prosecution being cogent. Under the circumstances, the trial Court was in error in holding that registration of subsequent complaint is supervening circumstance of the degree attracting the cancellation of bail. Therefore, the petition is allowed.”

Facts: Complainant-Petitioner has preferred a Criminal Bail Cancellation Application seeking cancellation of bail granted to Respondents No. 2 & 3. An F.I.R. was lodged by the petitioner with the specific allegation that the daughter of prosecutrix has been kidnapped and raped by the Respondents No. 2 & 3.

Decision: The bail granted to Respondents No. 2 & 3 was cancelled by the High Court.

Important Extracts:

“19. In the light of above judgments, reverting to the facts of this case, in the F.I.R. there was specific allegation against Respondents No. 2 & 3 of abducting the prosecutrix and of committing rape upon her. In her statement under Section 164 Cr.P.C. also, prosecutrix specifically levelled allegations against Respondents No. 2 & 3. Court below while granting bail did not go into the merits of the case, rather it allowed the bail, as there was direction by the High Court to consider and allow the bail application. The order passed by the High Court to the extent it directed the Court below to consider and allow the bail application, was set-aside by the Apex Court. However, since the Court below had already allowed the bail application and no application was moved by the respondents for grant of bail before the Court, the Court below could not comply with the directions given by the Apex Court to consider the bail application on merits.

20. As per Section 29 of the POCSO Act, 2012, if a person is prosecuted for committing an offence under Section 3, 5, 7 & Section 9 of the Act, the Court shall presume that such person has committed the offence, unless the contrary is proved.

21. There being a statement of the prosecutrix recorded under Section 164 Cr.P.C., wherein she has made specific allegations against the respondents. Plea of alibi raised by the respondents on the basis of tower location or statement of witnesses recorded by the Police, cannot come in aid of the respondents at this stage.”

Facts: State of West Bengal had preferred the application for cancellation of bail granted to the accused by the Sessions Court.

Decision: The High Court cancelled the bail granted on the grounds primarily that the Sessions Court had granted the same in a highly laconic and casual manner.

Important Extracts:

“4. We have given our anxious consideration to the rival submissions of the parties. Undoubtedly, cancellation of bail stands on a higher pedestal than denial of bail. However, if an order granting bail/pre-arrest bail to an accused suffers from patent non-application of mind as to the gravity of offence and other relevant considerations, it is the duty of the superior court to set aside such perverse order.

5. We have examined the order granting pre-arrest bail to the opposite party-accused in that perspective. Apart from referring to the health condition of the opposite party-accused, there is absolutely no reference to the nature and gravity of the offence as well as evidence collected in support thereof and the involvement of the said opposite party-accused in the alleged crime in the impugned order. We are pained by the laconic and casual manner in which the learned Judge chose to allow an application for pre-arrest bail and that too in a case where the allegations relate to commercial sexual exploitation of underage girls by an organised crime racket. Undeniably, the opposite party-accused is the owner of the premises where such immoral activities were being carried on.

6. We have considered the materials which have been collected in the course of investigation. We note that innumerable victims have graphically described the principal role of the opposite party-accused in sexually exploiting them for gains. We have also taken into consideration the fact that the delayed recording of the statements of the said witnesses was due to the laxity in investigation by the initial Investigating Agency and such statements were recorded only after the transfer of investigation to the more specialised agency. We, however, note with concern although the said victims made incriminating disclosures in the course of their statements recorded under Section 161 of the Code of Criminal Procedure, their statements were not recorded before the learned Magistrate under Section 164 of the Code of Criminal Procedure. The instant case relates to exploitation of underaged girls and other women. The victims are without doubt vulnerable witnesses who require preservation not only of bodily integrity but also support and rehabilitation on a social and economic plane. It would be a matter of minutes for powerful organised criminals to win over such witnesses if they are left to the vagaries of life and to survive on their own strength. It is, therefore, most important that witnesses of such fragile and vulnerable status should be given adequate protection and care not only at the time of their recovery but also during the course of investigation, trial and even thereafter so that they can depose without fear of consequences which may befall on them in future.

7. In the backdrop of the aforesaid facts where prima facie involvement of the opposite party-accused in a grave organised crime racket for exploitation of women was wholly ignored and pre-arrest bail was granted merely on the ground of health of the opposite party-accused, we are constrained to hold that the impugned order such order granting pre-arrest bail to her is perverse and is liable to be set aside. Consequential order of bail is also set aside.”

Facts: The petitioner herein was the minor victim, represented by her natural grandfather and guardian. The accused is the paternal uncle of the victim. Hence, a close relative. It was alleged that during Durga Puja vacations, the accused came to school and took her for a walk and then raped her and threatened her with dire consequences. The Sessions Court had directed the DMO Yingkiong to constitute a Board and examine the accused, who was sick, but no report was sent. As PP was absent, considering the submissions made by the learned defence counsel, bail was granted to the accused. A petition was filed against the bail that was granted.

Decision: Because there was no Special Public Prosecutor who had yet been appointed for the case, the Court observed that it was not a fit case for it to interfere in the order and order the accused to be taken back into custody. A direction was given to the Government to appoint a SPP at the earliest possible.

However, the Court observed that before granting bail, the provisions of fourth proviso to Section 439 , Cr.P.C. requires that the court should hear the PP. Moreover, on a perusal of the impugned order it is not discernible whether any requisition was actually served on the DMO, Yingkiong to examine the respondent No.2- accused and to submit his report on the next date fixed. Therefore, the learned trial court had passed the impugned order to release the respondent No.2 on bail without arriving at a satisfaction that the accused was actually suffering from any ailment and that it was expedient to enlarge the respondent No.2 on bail without waiting for the DMO’s report to arrive. Moreover, the trial Curt has also not recorded its satisfaction why it was necessary to enlarge on bail without hearing the Special P.P. appointed for prosecuting the accused in POCSO cases. Further, Section 29 was not kept in mind by the Sessions Court. The learned trial court ought to have recorded a finding as to whether any notice issued by the said learned was actually served on the DMO, Yingkiong to constitute a Medical Board and to examine the accused- respondent No.2 and to submit its report on 08.12.2017, before arriving at a finding that the DMO had not send his report.

Criminal Application Number: 128 of 2018

Facts: The applicant (original complainant) sought cancellation of the bail granted to the respondent No. 1-Brillant Patrick Jacky Henry Mauris. The applicant was the original complainant and mother of the survivor, aged 3 years at the time of the alleged incident. The accused herein was allegedly the school teacher of the survivor.

Decision: The Court cancelled the bail and set aside the impugned bail order. It observed that the statement of the applicant (original complainant) as well as all the statements of the survivor were consistent with each other and there was no infirmity in the same. Even the history given by the applicant to the doctor on 3rd June, 2017 is consistent with the statements. A perusal of the statement of the survivor which was in question and answer form, showed the nature of sexual violence perpetuated by the respondent No. 1, on her, on several occasions. The observation of the Sessions Judge about any contradiction in the statements recorded was contrary to the record at hand. The observation that the APP had submitted that there was prima facie no incriminating evidence, was completely contrary to the facts on record. Prima facie there was overwhelming incriminating evidence against the respondent No. 1.

Important Extracts:

“18. During the hearing of this application, it was pointed out that the parents of the boy, who was sexually assaulted, were summoned by the police to the police station. Learned A.P.P. assures that there will be strict compliance of the provisions of the POCSO Act. The POCSO Act is a special enactment, enacted to protect children from offences of sexual assault, sexual harassment and pornography and provide for establishment of Special Courts for trial of such offences and for matters connected therewith or incidental thereto. Section 24 of the POCSO clearly states that the statement of the child shall be recorded at the residence of the child or at a place where he usually resides or at the place of his choice and as far as practicable by a woman police officer not below the rank of sub-inspector. Clause (2) of Section 24 states that the police officer while recording the statement of the child shall not be in uniform. Learned A.P.P. also assures that the police will ensure that the child and their families are also apprised of their rights under Sections 39 and 40 of POCSO. (Section 39 which is with respect to guidelines for the child to take assistance of experts or persons having knowledge of psychology, social work, physical health, mental health and child development to be associated with the pre-trial and trial stage to assist the child; and under Section 40, the family or the guardian of the child has a right to take assistance of a legal practitioner of their choice for any offence under POCSO and if the family or the guardian of the child are unable to afford a legal counsel, the Legal Services Authority shall provide a lawyer to them.) Statement of the learned A.P.P. is accepted.”

Criminal Application Number: 1498 of 2017

Facts: The applicant was accused of committing offences punishable u/s. 363, 376 of the IPC and Sections 3 and 4 of the POCSO Act. After certain sections were added post investigation, the Investigating Officer preferred an application before the Sessions Court for cancellation of bail and rearrest of applicant. The police was allowed to arrest the applicant. Challenging the same, the accused approached the High Court.

Decision: The Court observed that it was pertinent to note that in the present case, the bail was granted to the applicant by the Court of Judicial Magistrate First Class and the applicant was at liberty. Subsequently, the other offences were registered. The application was preferred before the Sessions Court on the ground that custody is required for medical examination and recovery of clothes. The Sessions Court allowed the rearrest of the applicant. The order of bail granted earlier was not disturbed. The contention of the prosecution that earlier offences were bailable in nature and only permission to arrest the accused is required due to addition of serious charges is not tenable in law. It is pertinent to note that the impugned order was passed on 29.6.2016, it seems there were no attempts to arrest the applicant and the affidavit is silent in that regard. The affidavit also do not indicate that custody of applicant is required. It has to be noted that custody was sought for medical examination and recovery of clothes in the application which was preferred on 18.6.2016. The purpose for custody is also lost due to lapse of time. In view of the same, the Court observed that the impugned order permitting the Police to arrest the applicant ought not to have been passed and the same was not tenable in law.

Facts: The Union Territory of Lakshadweep invoked the inherent jurisdiction under Sec. 482, Cr.P.C., of the Kerala High Court for challenging the order granting bail to the respondents by the Assistant Sessions Judge, Amini Island.

Decision: The High Court allowed the challenge to the grant of bail on the grounds that the Court lacked the jurisdiction to pass the order granting bail.

Important Extracts:

“12. It is very much clear from a bare reading of Section 10(3) of the Code that the power for authorisation is vested by the said Section only with the Sessions Judge and not with the Special Judge. In this case, the Special Judge as per Annexure-VI authorised the Sub Judge-cum-Chief Judicial Magistrate, Amini to deal with the POCSO matters during the absence of the Special Judge, Kavarathi under Section 10(3) of the Code. Section 10(3) of the Code confers power on the Sessions Judge and not on the Special Judge. It is true that the Sessions Judge, Kavarathi is also a Special Judge. That does not mean that the Special Judge gets jurisdiction under Section 10(3) of the Code. There can be no doubt that no court can be authorised to deal with the POCSO matters and no court can act as a special court without any notification as provided under Section 28 of the POCSO Act. In view of the above reason, the direction issued under Annexure-VI could not confer power on the Assistant Sessions Judge, Amini to act as a Special Court for any purpose. The learned Assistant Sessions Judge passed Annexure-VIII Order on the strength of Annexure-VI. Since the learned Special Judge, Kavarathi had no power to issue any such direction, the conferring of power on the Assistant Sessions Judge, Amini, to deal with the matters under the POCSO Act, cannot be said to be legal and correct. Consequently, the Assistant Sessions Judge, Amini had no jurisdiction at all to deal with the matters under the POCSO Act. In view of the above reason, the bail granted by the learned Assistant Sessions Judge as per Annexure-VIII Order to the respondents herein cannot be sustained, and consequently, I set aside the same. However, the present situation has arisen not due to any fault of the respondents herein. Therefore, the respondents herein shall be at liberty to approach the Special Court concerned and apply for regular bail. If the respondents surrender before the regular court within 15 days of receipt of this order and apply for regular bail, the respondents shall be granted regular bail by the Special Court on such terms and conditions as the Special Court may deem fit and proper.”

Facts: The petitioner filed the instant petition aggrieved by order whereby on the date fixed for prosecution evidence, after the examination of the prosecution witnesses, his bail was cancelled by the Trial Court on the oral information given by counsel for the complainant (father of the child victim) about presence of Sh. Suresh (brother of the accused/petitioner and father of the child victim) alongwith his wife and son outside the Court. The bail of the petitioner has been cancelled by Trial Court for the following reason: ‘Considering the fact of the accused of bringing the persons, who had no concern with the case, the bail of the accused is cancelled. Accused be taken into custody.’

Decision: The High Court allowed the petition observing inter alia that the persons stated to be present outside the Court were not strangers or bad elements. They were closely related to the parties as Suresh was the real brother of the petitioner and father of the child victim and other two persons were wife and son of Suresh. It is not uncommon for the relatives to accompany on the dates of hearing in the litigation involving family members. The petitioner/accused must have remained present in the Court only during Court proceedings. Mention of the incident of previous date in the order dated 5th May, 2017 is not supported by any ordersheet, police complaint or any other action taken by the complainant against the accused brother or another brother Suresh for extending any kind of threat. The bail granted to the petitioner could not have been cancelled by the Trial Court merely on an allegation which the learned Trial Court even did not bother to verify. The petitioner/accused is a government servant. He had been in custody for almost two months now. The father of the child victim when failed to get the bail cancelled by making various complaints to the police, has been able to achieve by making just an oral submission and bail was cancelled without the incident being affirmed by the learned APP. The learned ASJ, without even caring to verify the correctness or such allegations or giving an opportunity of being heard to the accused/petitioner, cancelled the bail and sent him to judicial custody.

Important Extracts:

“8. It is settled legal proposition of law that the Court which has granted the bail has also the power to cancel the same. The discretion of grant or cancel the bail can be exercised by the Court at the instance of complainant or public prosecutor on account of finding new material or circumstances or on account of misuse or abuse of liberty. It is also settled proposition of law that the Court which considers the bail application must try to maintain a balance between social interest viz-a-viz. personal liberty while adhering to the fundamental principles of criminal jurisprudence that accused has to be presumed to be innocent till he is found guilty by the Court of competent jurisdiction.”

Facts: In this case, an FIR was registered on the complaint of the Petitioner for offences punishable under Section 376, IPC and Section 4 of the POCSO Act. After completion of investigation, charge-sheet was filed and the petitioner was examined and cross-examined. After the petitioner was examined, the ASJ noting that the statement of the prosecutrix had been recorded and it would take time to conclude the trial, keeping in view the facts and circumstances of the case admitted the respondent No. 2 to bail. Challenging the said order being perverse and that after being released on bail the respondent No. 2 was harassing the petitioner, application for cancellation of bail was filed by the petitioner which was dismissed by order and this petition was filed.

Decision: The Court observed that it is clear that when a person to whom bail has been granted either tries to interfere with the course of justice or attempts to tamper with evidence or witnesses or threatens witnesses or indulges in similar activities which would hamper smooth investigation or trial, bail granted can be cancelled. Rejection of bail stands on one footing, but cancellation of bail is a harsh order because it takes away the liberty of an individual granted and is not to be lightly resorted to.

It is well settled that even in serious cases if material witnesses are examined and the trial is likely to take time, the exercise of discretion by the Court in granting bail to the accused cannot be held to be perverse. As noted by the Supreme Court in (2004) 2 SCC 362 Mehboob Dawood Shaikh Vs. State of Maharashtra cancellation of the bail and deprivation of the personal liberty is a serious matter and the Court while exercising the jurisdiction should act with circumspection and should carefully weigh the acceptability of the allegations for cancellation of bail. Testing the allegations of the petitioner on the touchstone noted by the Supreme Court present is not a case wherein cancellation of bail of the respondent No. 2 is warranted as in none of the FIRs, the allegations of the petitioner are corroborated by any independent material.

Facts: The de facto complainant-petitioner sought cancellation of the bail granted to the Opposite Party No. 2. The complainant submitted that the offence levelled against the Opposite Party No. 2 was 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.

Decision: The Court considered the submissions of the parties, the medical treatment sheets, the 164 statement of the victim girl and the 161 statements so also the date of birth of the victim girl appearing from the date of birth certificate. The Court below had based its order and granted anticipatory bail to the Opposite Party No. 2 based on the medical report alone. The Court observed that the victim girl was below 12 years of age. As would appear from her birth certificate, she was only nine years of age. Therefore, the contention of counsel for the opposite party No. 2 that section 6 will not be applicable, could be accepted. It will not be impertinent to mention that medical of the Opposite Party No. 2 was also conducted and the report at page-56 of the Case Diary. On consideration of the aforesaid materials, which were before the Court below when order was being passed, it could be said that the said materials were considered in the proper perspective and having not been considered in its true term, spirit and purport, rendered the order perverse per se and called for cancellation of the anticipatory bail granted to the Opposite Party No. 2.

Facts: The present petition was filed by the State requesting the court to cancel the bail granted by the VI Additional Sessions Judge and Special Judge, Mysuru.

Decision and Relevant Extracts: The Court observed that this was not a case where bail should have been granted. While perusing the record and the lower Court’s decision, the Court observed, inter alia, the following:

“10. It is ununderstandable as to how the statement of the victim girl and other materials placed on record could have been so easily ignored by the learned judge, relying solely on the defence set up by the accused in the written arguments.

14…..Apart from this, Section 29 of the POCSO Act provides for a reasonable presumption about the case of the prosecution till it is rebutted during the course of trial.”

Facts: It was alleged that the accused had assured the CW-2, a girl aged about 17 years of marrying her, and forcibly took her in an autorickshaw belonging to the 2nd accused towards Chowdapur village and persuaded her to cooperate with him, and raped her and later on sent her to the house of CW-20. There were subsequent dates also on which the accused had raped her, in different circumstances. An application had been filed seeking regular bail before the special court at Chikmagalur during the pendency of investigation which was dismissed. Admittedly, the accused was arrested on 17.01.2015 and enlarged on bail on 10.06.2015. Since the accused was in judicial custody for nearly 6 months and charge sheet had been filed and the 2nd accused being already released on bail, and the 1st accused being the only bread earner of the family, the judge has chosen to grant bail. A petition was moved challenging the bail granted.

Decision: The bail granted was cancelled by the Court.

Relevant Extracts:

Apart from discussion on the seriousness on the allegations, the Court observed that:

“bail should not be mechanically granted without adverting to relevant considerations. If bail is granted without such considerations, it would suffer from the vice of non-application of mind and therefore the order becomes illegal. But at the same time in the said case, caution is given to the courts while granting or refusing bail, not to make elaborate assessment of evidence and touching the merits of the case since it may prejudice the accused. But it is made clear that there is a need to indicate in such order the reasons for prima facie concluding why bail is granted, particularly where the accused is charged of having committed a serious offence.

8. There is no second opinion about the seriousness of the allegations made against the accused in the present case by the victim girl aged 17 years

9. The learned judge should have made at least some reference about the materials placed on record. …… The parity of granting bail to 2nd accused could not have been taken into consideration since there was no allegation that the 2nd accused too had sexually assaulted the victim girl.

12. …….. But the learned judge has not at all assigned reasons as to whether there were any altered circumstances to take a different view from that of the one already taken earlier while rejecting the bail application when investigation was still in progress. Whether the materials produced along with the charge sheet were not sufficient to make out a prima facie case, is not forthcoming. The reasons like investigation was over and the accused was in judicial custody for 6 months are ‘not cogent reasons’ to grant bail subsequently. Apart from this, the materials placed on record inclusive of the statement of the victim girl recorded under Section 164, Cr.P.C. have not at all been taken into consideration in any manner.

13. Though elaborate discussion on the material placed on record is not required, at least there must be some indication of having considered all the relevant materials to grant bail. One cannot forget that the case on hand relates to an offence committed on a girl aged 17 years and she will be a ‘child’ for all practical purposes. The provisions of POCSO Act, 2012, are stringent and special courts have been established to deal with such offences against children, whether girls or boys. Apart from this, presumption available under Section 29 of POCSO Act will have to be raised when the charge sheet is filed. The learned judge has not kept in mind the gravity of the offence, nature of allegation and the punishment contemplated therefor.

14. It is true that the prosecution has not made any allegation against the accused that he has violated the bail conditions imposed on him while granting bail on 10.6.2015. Suffice to state that the judge has not kept in mind the important factors to be considered while granting or rejecting bail in a case of this nature. The respondent herein cannot be considered as similarly placed with the 2nd accused who is already enlarged on bail. On the other hand, the learned judge should have taken up the case for trial at the earliest since he was in judicial custody. Granting bail on the ground of charge sheet being filed and accused being in judicial custody for 6 months in a case of this nature are wholly incorrect and improper.

15. Taking into consideration all these factors and no cogent and valid reasons being assigned to grant bail to the accused, though his earlier bail application was rejected, this court is of the opinion that bail granted to the respondent-1st accused is liable to be cancelled. In the light of the facts of the case and special court being established to take up cases of this nature, directing the concerned court to dispose of the matter at the earliest and imposing few conditions on the accused would meet the ends of justice.”

(C.R.R. No. 2562 of 2014)

Facts: An application was filed under Section 401 read with Section 482 of the Code of Criminal Procedure, 1973 by the petitioner praying that an order passed dismissing the revision and affirming the order in respect of granting of bail of the O.P. No. 1 be quashed and set aside.

Decision & Relevant Extracts: The Court referred to the provisions of Sections 6, 28, 31, 33 and 42-A of the POCSO Act observing:

“12. A conjoint reading of the aforesaid provisions of the Act clearly spells out that cognizance of an offence under the Act without any order of committal or trial can be taken by the Special Court on a complaint disposing facts, which constitute such offence, or upon a police report on such facts. Such being the position, where the Special Court is empowered to take cognizance of the offence on a complaint or police report on facts constituting an offence under the Act, the Judicial Magistrate has no jurisdiction to entertain and consider the application for bail moved by any accused proceeded for an offence under the Act. The Act does not interdict the Magistrate in passing the order for the first remand of an accused suspected and prosecuted for an offence under the Act, the accused being produced before him since he is empowered under Section 167 of the Cr.P.C. to do so. However, he has no jurisdiction to pass any subsequent order of remand and to entertain or to consider any application of bail filed by such accused and that can only be done by the Special Court.”

The Court further referred to the case of State of Tamil Nadu Vs. V. Krishnna Swami Naidu (Supra) observing that, “there remains no scope for harbouring even the slightest doubt to accept the legal proposition that under the POCSO Act only the Special Court has been singularly vested with all the powers to try an offence under the Act and to entertain and consider application for bail filed by the accused and to deal with any incidental matter thereto including the power of detention and remand of the accused.”

“16. Like most things in life, there is an ever present duality in the criminal justice process. There is a never ending dialectic in legal philosophy between the right of the accused to be presumed innocent until proven guilty and the need of the complainant (s) or victim (s) for a fair trial, uninfluenced by powerful or nasty (or both) accused persons. Bail is a legal provision which has great potential to provide mischievous or criminal elements an opportunity to influence the course of a trial in all the wrong ways. Sometimes people are bailed out and they misuse their freedom. Bail cancellation is the most obvious post-facto way in which such abuse can be curtailed.”

“18. ……. The order granting bail by the Learned Magistrate is absolutely perverse as he did not record any reason for granting bail in such serious and atrocious offence save and except that further detention of the accused would not help the investigation of the case. It is horrible to note the lack of legal conception demonstrated by the Learned Magistrate by recording such reason as only after completion of the investigation the charge sheet was submitted. Therefore, the impugned order granting bail to the accused is not only without jurisdiction but is also vitiated by illegality and perversity. The conduct of the Learned Additional Sessions Judge cannot also be appreciated either. The manner in which he approached and addressed the issue is highly condemnable as he missed the wood for the trees and totally misdirected himself in passing the impugned order dated 15.07.2014 which is equally perverse.”

“19. …….. The present one is basically an application challenging grant of bail where the Learned Magistrate passed such order despite having no jurisdiction to entertain or consider the bail application which makes the order perverse.”

The Court distinguished the case of Sanjay Narhar Malshe vs. State of Maharashtra 2005 CRI.L.J. 2984 as follows:

“20. Before concluding the discussion, I would like to add that the decision in the case of Sanjay Narhar Malshe vs. State of Maharashtra (Supra) cited by Mr. Dasgupta, Learned Counsel appearing for the O.P. No. 2, was in connection with an offence punishable under Section 3 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 which is though triable by a Special Court but in that Act there is no provision empowering the Special Judge of the Special Court to take cognizance of the offence as a Court of original jurisdiction without the case being committed to it for trial. In that view of the matter it was held in that decision that there is no total prohibition against grant of bail by the Magistrate. Striking dissimilarity between the said Act and the present Act is that in the POCSO Act the Special Judge has been empowered to take cognizance of an offence under the Act without any order of committal and the Magistrate has no jurisdiction to entertain and consider the application for bail. Therefore, that decision can have no manner of application in the instant case. The other decision cited by him being MANU/SC/1148/2012 : (2012) 2 Supreme Court Cases (Cri) 481 : (2012)4 Supreme Court Cases 516 (Supra) also relates to an offence punishable under Section 3(1)(X) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 and other Sections of the Indian Penal Code. In that case the Learned Special Court took cognizance directly without commitment of the case to it by the Magistrate in accordance with the provisions of Sections 209 and 193 of the Cr.P.C. That case ended into conviction of the accused persons. Appeal was preferred before the High Court and it was dismissed. Against that the appellants moved before the Hon’ble Supreme Court and the Hon’ble Supreme Court held that mere non-compliance with Section 193 of the Cr.P.C. does not vitiate the trial and on the said ground alone the conviction cannot be set aside or there cannot be a direction for retrial. Therefore, this decision also does not have any bearing upon the instant matter. On the contrary the decisions referred to by Mr. Bhattacharya, the Learned State Counsel, are quite relevant and on the point and thus have a sound bearing upon the case in hand.”