The court ruled that the serious nature of the charges against a first-time offender does not guarantee bail under Section 479 of BNSS, emphasizing the gravity of the offense involving a minor.

JUDGMENT :

MADHAV J. JAMDAR, J.

1. Heard Mr. Tapan Thatte, learned Counsel for the Applicant and Ms. Anuja Gotad, learned APP for the State.

2. This is the second Bail Application. The first Bail Application bearing Bail Application No.2450 of 2023 has been allowed to be withdrawn by this Court by Order dated 17^th January 2024. By the said Order, the Applicant is granted leave to file a fresh Bail Application, if the trial is not concluded within a period of one year. Pursuant to the said liberty, the present Bail Application is filed.

3. The relevant details are as under :-

4. At the outset, Mr. Thatte, learned Counsel for the Applicant submitted that the Applicant is not seeking bail on merits and he is only seeking benefit under Section 479 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (“BNSS”). It is his submission that the Applicant is first time offender and therefore as per first proviso to Section 479, the Applicant is required to be released on bond by the Court as the Applicant has undergone detention for a period up to one-third of the maximum period of imprisonment under the law. He submitted that the Applicant has completed detention for 2 years. The maximum punishment under Section 354A of IPC is one year. He submitted that although the maximum punishment under Section 354-B is 7 years and although charge-sheet is filed under said Section the said offence is not disclosed in the entire charge-sheet. He submitted that as far as the offence under Section 11 and 12 of the Protection of Children from Sexual Offence Act, 2012 (“POCSO Act”) the maximum punishment is 3 years and therefore the Applicant is entitled to be released on bail as he has undergone2 years of imprisonment.

5. It is the submission of Mr. Thatte, learned Counsel for the Applicant that the Applicant is the first time offender and has completed one-third of the maximum punishment for the offence which is disclosed from the chargesheet. He submitted that the second proviso of Section 479 of BNSS giving power to the Court to reject the bail application even if the undertrial has completed one-half of the imprisonment will not apply to the first proviso and the same will only apply to the Sub-Section 1 of Section 479 of BNSS in view of the clear language of second proviso clearly indicating that the same applies to Sub-Section (1) of Section 479 of BNS. He therefore submitted that as the Applicant has completed 2 years of imprisonment, the Applicant is entitled to be released on bail.

6. On the other hand, Ms. Gotad, learned APP submitted that the offence in question is very serious and heinous as the victim is 8 years and inter alia the offence is under the POCSO Act and therefore the Applicant is not entitled to be released on bail.

7. Before considering rival contentions, it is necessary to set out the prosecution case:

i. It is the case of the prosecution that the victim at the relevant time was studying in 2^nd standard. The victim commutes to School by School bus. On 20^th March 2023, the victim, aged about 8 years went to the School by School bus and returned at around 2.00 p.m.. When the mother of the victim picked-up the victim from the bus, the victim was crying while getting down from the bus and informed that the present Applicant i.e. the driver of the said school bus had stopped the bus, took the victim aside and sexually assaulted the victim.

ii. The victim in her statement recorded by the police on 21^st March 2023 has inter alia stated as follows:-

Thus, it is clear that the offence is very serious. The child aged 8 years has been subjected to sexually assault by the Applicant.

8. Although Mr. T