Criminal Procedure Code, 1973
Section 438—Anticipatory bail—FIR was initially registered under Section 377 IPC read with Section 6 of POCSO Act and during the course of investigation, Section 376AB IPC has been invoked—Contention that Section 376AB could not have been directed to be invoked by the ASJ during the pendency of bail application—Rejected—Offence could not have been diluted by prosecution out of sheer ignorance, as on the face of record offence under Section 376AB is manifestly attracted in the facts and circumstances of the case—Invocation of correct section by the Investigating Agency on pointing out of the ASJ during the stage of investigation is not barred—Application dismissed.
Section 438—Anticipatory bail—Bar of Section 438(4) of CrPC—Petitioner challenges the finding of the trial court that the court is proscribed to deal with application under Section 438 CrPC for grant of anticipatory bail in view of Criminal Law Amendment Act, 2018—Changes in the penal laws were provided specifically for welfare of women and children, keeping in view the rising crime rate and to provide for a deterrent punishment—By virtue of Section 42 of the 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, whichsoever provides for punishment greater in degree—It cannot be inferred that rigor of Section 438(4) of CrPC stands obliterated at the stage of bail since offender stands charged with both Section 376AB IPC as well as Section 6 of the POCSO Act and may be punished on conviction under Section 6 of the POCSO Act instead of Section 376AB IPC—In view of sub-section (4) of Section 438 CrPC, the application for anticipatory bail is not maintainable before the trial court—After perusing the statement of victim under Section 164 CrPC, that it may be far too stretched at this stage to assume that statement may have been made by victim aged about 5 years at the behest of complainant or that statement was being used for settling the score—Legal presumption as to 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—After considering totality of facts and circumstances, grave nature of allegations and statutory bar placed under sub-section (4) of Section 438 CrPC, no grounds for anticipatory bail are made out—Application dismissed.
[Paras 10 to 12]
Protection of Children from Sexual Offences Act, 2012
Sections 29 & 30—Presumption—Legal presumption as to commission of offence and culpable mental state as legislated under POCSO Act has to be kept in perspective while dealing with offences under POCSO Act.
Section 42—Purpose of Section 42 of the POCSO Act is to ensure that an act constituting offence under two different enactments does not lead to double punishment for the same act constituting an offence.
Decision : Application dismissed