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Judgment
Rajendra Badamikar, J
The petitioner has filed this petition under Section 439 of Cr.P.C. for admitting her on bail in Yalahanka New Town Police Station in Crime No. 0059/2024 initially registered for offence punishable under Section 363 of Cr.P.C. which subsequently culminated in the charge sheet for offence punishable under Sections 363, 366, 376(1) of IPC and Sections 3(b) and 4 of the POCSO Act.
Heard the learned counsel for the petitioner and the learned HCGP for respondent No. 1 – State and learned counsel for respondent No. 2. Perused the records.
The allegations of the prosecution disclose that the victim girl is closely related to the petitioner. This is an interesting case wherein the petitioner who is a female was prosecuted for offence punishable under Section 3(b) and 4 of the POCSO Act. As per the case of the prosecution the petitioner is the sister-in-law of the victim girl and she often used to visit the house of the victim girl and they developed close intimacy. It is further asserted that the petitioner used to touch the private parts of the victim girl with bad intention and this was noticed by the complainant and she had warned the victim girl as well as the petitioner. It is also alleged that the victim girl had certain issues with her mother, i.e., complainant. According to the prosecution, on 02.02.2024 the first informant had abused the victim girl and as such, she was upset. On 03.02.2024 at 06.30 am the victim girl had been to bring milk and then the petitioner took the victim girl outside and initially she took the victim girl on her Scooty to Ananthapura in Andhrapradesh wherein they arranged a room in Garlic Grand Hotel and they stayed there for a period of 2 days and later on went to Kurnool and there in a hotel they stayed for a day and later on they returned to Garlic Grand Hotel in Ananthapur wherein they again stayed for one day. Later on in DBR Restaurant they stayed for one day and on 08.02.2004 petitioner gained a job at Ulavachar Show Room and the person concerned with the show room provided accommodation to them in a room. It is alleged that on the said night at 08.30 pm the petitioner forced the victim girl to cooperate for homosexuality and she had undressed the victim girl and they had homosex and the petitioner had also done certain activities which were against natural behaviour. Later on, on 10.02.2024 the petitioner took the victim girl to her friend’s house and in the meantime, the Police got information and took both of them and on the basis of complaint lodged under Section 363 by the complainant, the Investigating Officer recorded statement of the victim girl and on the basis of the statement of victim girl offence under Sections 363, 376(1) of IPC and Sections 3(b) and 4 of the POCSO Act were incorporated. Petitioner was remanded to judicial custody and she continues to be in custody. It is reported that investigation is still in progress. The petitioner had approached the learned Sessions Judge/Special Judge and the learned Special Judge has rejected the regular bail petition filed by the petitioner. Hence, the petitioner is before this Court seeking regular bail.
Heard the arguments advanced by learned counsel for the petitioner.
Learned HCGP as well as respondent No.2 who has engaged an independent counsel have seriously objected the bail petition.
Having perused the records it is evident that the victim girl is admittedly minor but the petitioner is the sister-in-law of the victim girl. The victim girl is aged about 17 years and she is capable of understanding the things. The allegation of the prosecution discloses that the petitioner used the victim girl for homosexuality. Certain specific acts were quoted by the prosecution on the basis of Section 161 Cr.P.C. statement said to be given by the victim girl. However, it is also evident that statement of the victim girl under Section 164 Cr.P.C. was also recorded before the jurisdictional Magistrate. The victim girl in her Section 164 Cr.P.C. statement admitted that the petitioner is closely related and on 03.02.2024 she was enticed away by the petitioner. Her further statement discloses that on 3rd and 4th they stayed in Garlic Grand Hotel wherein no allegations of sexual assault is forthcoming and later on they stayed in Kurnool wherein also no allegations of sexual assault were forthcoming. Her further statement discloses that subsequently they secured a job in Ulavachar show room wherein they were accommodated by giving a room. However, in her Section 164 Cr.P.C. statement the victim girl did not narrate any of the sexual assault incidents as alleged in her Section 161 Cr.P.C. statement and simply said that the petitioner used to behave unnaturally and used to fall on her. But her statement discloses that she had also secured a job in a restaurant. Her further statement discloses that then they returned to Bengaluru to meet friend of petitioner by name Nisha and there the Police have secured them. The statement recorded under Section 164 Cr.P.C. by the victim girl is completely contrary to Section 161 Cr.P.C. statement recorded by the Investigating Officer.
No doubt the statement of the victim girl discloses that she was enticed by the petitioner and was taken to Ananthapura and Kurnool by the petitioner. But it is a fact that the victim girl is aged 17 years and she has not raised any objection while traveling with the petitioner. They are alleged to have traveled on a Scooty from Yelahanka to Ananthapur. The victim girl being aged about 17 years is capable of understanding things. Though her consent becomes irrelevant considering her minority, but considering the fact that she was capable of understanding the things, it becomes relevant that she was upset with her mother and went with the petitioner, who is closely related to her.
The petitioner is a woman and falls under exception and she is in custody since 11.02.2024. The Investigating Officer has not sought her custody for interrogation and hence it is evident that custodial interrogation is not required by the investigating agency. No purpose will be served by keeping the petitioner in custody. Section 164 Cr.P.C. statement given by the victim girl does not corroborate with the Section 161 Cr.P.C. statement recorded by the Investigating Officer as per the remand yadi placed before the Court. Hence, prima facie there is no much evidence placed to show sexual assault.
Further, even Section 3 and 4 of the POCSO Act cannot be made applicable as against the present petitioner, as Section 3 refers to penetrative sexual assault and the word used is specifically `he’ and Section 4 of the POCSO Act is the punishment prescribed for offence under Section 3 of the POCSO Act.
Though learned counsel for respondent No. 2 invited the attention of the Court to General Clauses Act by arguing that when the word `he’ is used, it is required to be treated as `she’ also when there is no specific provision under the said enactment. However, Section 7 of the POCSO Act refers that any person with sexual intention touches the private parts of the victim is said to have committed an offence of sexual assault and Section 8 of the POCSO Act deals with the punishment for sexual assault and Section 9 deals with aggravated sexual assault. Section 9 is not applicable to the present case in hand since the victim girl is not below the age of 12 years and at the most Section 7 or Section 8 are applicable to the case in hand. The intention of the Legislation clearly discloses that they have used the word `he’ in Section 3 of the POCSO Act but the same word is not used in Section 7 of the POCSO Act and hence considering the clarity in the mind of the Legislation, the provisions of General Clauses Act cannot be made applicable to the facts and circumstances of the case in hand.
As observed above, even considering the other allegations, the provisions of Sections 7 and 8 of the POCSO Act are applicable as against the present petitioner and not Sections 3 and 4 of the POCSO Act. However, the said offences are not punishable with death or life imprisonment. Further, the petitioner herself is a woman and falls under exception and as observed above her custodial interrogation is not sought for by the Investigating Officer. No purpose would be served by keeping her in custody. Other apprehensions raised by the learned HCGP as well as learned counsel for respondent No. 2 can be meted out by imposing certain conditions. Hence, petition needs to be allowed and accordingly, I proceed to pass the following;
ORDER
Petition is allowed.
Petitioner is ordered to be enlarged on bail in crime No. 0059/2024 of Yalahanka Police Station registered for the offence under Sections 363, 366, 376(1) of IPC and Sections 3(b) and 4 of the POCSO Act, on her executing a personal bond in a sum of Rs.1,00,000/- (Rupees One Lakh only) with one surety for the likesum to the satisfaction of the trial Court subject to the following conditions:
(i) She shall not indulge in any of the criminal activities;
(ii) She shall not tamper the prosecution witnesses either directly or indirectly;
(iii) She shall attend the Court on all the dates of hearing, unless she is exempted by a specific order.
(iv) She shall co-operate for speedy disposal of the matter.