POCSO is a special act enacted with the objective to protect children from sexual assault and to ensure that the person accused of crime under the POCSO Act, should not get away with the accusations as easily’, therefore section 30 was incorporated in the Act, which presumes culpable mental state of the accused unless rebutted in accordance with the law.
Because of the sensitivity of the matter (child being the victim) and stringent provisions involved (presumption against the accused), it is very difficult to seek bail in POCSO ACT, in my this column I will be sharing some focus areas and considerations, wherein the accused persons were granted Bails’ in POCSO Act.
- Delay without reasonable explanation in lodging complaint or even not disclosing the matter to her mother for a period of 4 years gives benefit to the accused and bail was granted. (Anu Devi Vs State of Himachal Pradesh Crl MP 187 of 2019)
- Material difference in victims statement recorded under section 161, 164 Cr.P.C gives benefit to the accused and bail was granted (Amarjeet Panday Vs State of NCT of Delhi Bail Appln. 2340/2017)
- Substantial improvement in victims statement, unexplained delay in lodging an FIR gives benefit to the accused and bail was granted (Bhusan Malik Vs State of NCT of Delhi Bail Appln. 1545/2018)
- Victim frequent changing her stand gives benefit to the accused and bail was granted (Dilshad Khan Vs State Bail Appln. 2350/2018)
- Friendly relation between the accused and prosecutrix established , no independent witness stating anything incrimination against the petitioner, investigation complete and chargesheet already filed, benefit to accused and bail was granted (Jatin Sethi Vs State Bail Appln. 1995/2018)
- Victim and accused already got married, victim do not support the case of the prosecution in her statement recorded under section 164 Cr.P.C and victim is blessed with a daughter from accused, benefit to accused and bail was granted (Manoj Kumar Vs State Bail Appln. 2552/2019)
- Victim is aged 17 years and 11 months, was in friendship with the accused since 3-4 years, was in touch with the accused on social media and even on the date of alleged incident the victim and the accused were touch on social media, FIR was merely registered on the pressure of the family members of the victim, benefit to the accused and bail was granted (Shashank Vs State of NCT of Delhi Bail Appln. 692/2019)
- Since the accused is in custody for more than four years, whereas section 35 of the Act postulates the trail to be concluded within one year from the date of court taking cognizance, benefit to the accused and bail was granted ( Sanjay Mahawal Vs State of NCT of Delhi Bail Appln. 18/2020)
- Victim already aged 21 years, no material to corroborate except bald statement made by the victim, forensic or medical report does not support forcible relationship with the victim, prosecutrix already examined and cross-examined and as such there is no possibility that the victim be influenced, benefit to accused is given and bail is granted (Paramdeep Vs State of NCT of Delhi Bail Appln. 656/2019)
- Prosecutrix herself stated that there was a quarrel that took place between her family on one side and between the family of the accused on the other side, to which no enquiry was made by the police rather “ at the instance of the police, she was made to write the present complaint”, also in her statement U/S 164 Cr.P.C before the Magistrate the prosecutrix informed the Court that “ Whatever she stated was told by the police and neighbors”, keeping the abovementioned facts,benefit to accused and bail was granted (Rajeev Chauhan Vs State of NCT of Delhi Bail Appln. 284/2018)
- Prosecutrix does not object to grant of bail, also keeping in mind that the accused is only 25 years of age, his subsequent conduct as well as the assurances given by the family of the accused, benefit to accused and bail was granted (Rajeev Ghaloth Vs State of NCT of Delhi Bail Appln. 2116/2018)
- Testimony of the prosecutrix before the trial court has already been recorded and there is no possibility that the prosecutrix can be influenced, benefit to accused and bail was granted (Ramkishan @ Sonu Vs State of NCT of Delhi Bail Appln. 599/2018)
- There was friendship between the petitioner as well as the complainant for the last four years and the complaint has been lodged at the behest of her parents, Call Details Record (CDR) obtained by the Investigating Officer shows that even after the incident as late 9 pm in the evening of 07.11.2017 and on the following day, i.e. on 09.11.2017, there were calls made by the complainant to the phone of the petitioner, lasting in one instance for 1105 seconds, benefit to accused was given and bail was granted (Sohan Kumar @ Sonu Tomar Vs State of NCT of Delhi Bail Appln. 1294/2018)
- Prosecutrix was a friend of the petitioner, used to roam around with the petitioner and had written several love letters to the petitioner, which are available with the petitioner including a letter in which she has used her own blood to write "sorry, I love you", the complaint has been lodged at the behest of the family members, chargesheet has already been filed, benefit to accused and bail was granted (Sunny Vs State of NCT of Delhi Bail Appln. 2558/2017)
- Allegation against the petitioner for sexually assaulting the minor girl were false, as the complainant party demanded money from the petitioner that he refused to give. From the medical report also, the allegation was not proved. Also the charge sheet was not filed against the petitioner on expiry of 90 days. Therefore, default bail was granted to the petitioner (Paras Ram v. State of Rajasthan, 2019(3) Cri.CC 487: 2019(4) Crimes 455)
- The ingredients of offence are not made out against the applicant, since the victim herself left her house and went to the applicant. She was not enticed away by him and she also married the applicant on her sweet will. Also the applicant has no criminal history to his credit and he is languishing in jail since 13.11.2019. Thus, court agreed to grant bail under certain conditions (Kamlesh Kumar vs State Of U.P., CRIMINAL MISC. BAIL APPLICATION No. - 13901)
- Since in view of the restricted working of the Courts due to pandemic COVID-19 situation, the trial was likely to take some time and in view of the facts that the petitioner herein has been in custody since 08.06.2019 and that the statements of the material witnesses have been recorded, no useful purpose would have been served in keeping the petitioner behind bars. Thus, petitioner was released on bail on certain conditions (Ajaib Singh Alias Naibu vs State Of Punjab, CRM-M-11469-2020)
Though it is difficult to seek bail in POCSO Act, but if we focus on the parameters basis which bails were already granted to accused persons, the courts can grant bail by imposing certain conditions in the interest of Justice.