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Synopsis

The Delhi High Court has recently directed the Registrar (Vigilance) to seek an explanation on the administrative side from the Trial Court Judge, as to the reasons for passing the non-reasoned order granting bail to an accused under the Protection of Children from Sexual Offences Act and the Indian Penal Code.

A bench of Justice Saurabh Banerjee has asked the report to be placed before the Inspecting Judges Committee of the Delhi High Court within one week for consideration. 

The bench was hearing a plea challenging a Trial Court's order, which granted bail to an accused under Section 10 (aggravated sexual assault) of the POCSO Act and Sections 342 (wrongful confinement), 354, 354-B (assault or using criminal force on woman) and 363 (kidnapping) of IPC.

It has been alleged that the Trial Court failed to consider the gravity and heinousness of the offence involved while granting bail to the accused and no reasonable amount of time to enter appearance and make submissions opposing the grant of bail was given to anyone on behalf of the child involved. 

Additionally, it was argued, "that the impugned order is unreasoned and not apposite in law."

Given the above, the bench opined that "while considering matters involving sexual offences, a Court has to be mindful that the incidents of sexual violence against children (or against the women) in a society always involve the life and limb of a child (or a women) as what is at stake is the prestige and future of the victim which has been lowered and shattered into pieces."

Justice Banerjee also stated, "Once a victim being a child (or a woman) has been hurt physically, emotionally, and mentally at a tender age, the same is bound to have adverse effects on the overall growth and development of the said human being. It is, thus in the interest of justice and of course the overall interest of the society at large that proceedings are handled with due care and precaution, especially when the Court is dealing with an application for releasing the accused on bail."

It has been opined that the legislature, after taking note of the societal milieu of the country, recognised that since offences against the children were neither reported nor penalised. A need was felt for enacting a statute clearly defining the varied degrees of the offences as punishable under the law and which also propagates restorative and compensatory justice to the sufferer. 

Dealing with the case in hand, the bench said that the bail had been granted to the accused in a purely mechanical manner without expressing any opinion or without application of judicial mind on the facts and merits of the case. "The same is against the very pre-requirements of granting bail to an accused, especially in the present case, when it is involving, not only offences under Section(s) 342/354/354-B/363 IPC but also Section 10 POCSO Act," the bench added.

Furthermore, the bench observed that "the Court is required to examine if there is a prima facie case made out against the accused or if there is a reasonable doubt created in the mind of the Court for granting bail to the accused. While dealing with cases arising out of the POCSO Act, a Court is called upon to balance 'public cause' of the society at large against the 'private interest/right'."

The Court also noted that other than the conditions led down in prior judgments for the grant of bail in such cases, the following considerations should be kept in mind while considering the grant of bail to an accused in matters relating to sexual offences specially POCSO Act: 

i. The age of the Victim; 

ii. The age difference between the victim and the accused; 

iii. The ferociousness of the offence;

iv. The relationship between the victim and the accused and; 

v. The vicinity of residence of the accused and the victim and if they are in proximity then if the accused is willing to reside elsewhere, till the pendency of trial. 

Additionally, the bench also set aside the order of the trial court granting bail to the accused and sought an explanation from the trial court judge through the Registrar (Vigilance) on passing a non-reasoned order.

Case Title: Ms. N Vs. State & Anr.