IMPORTANT POINT
Where the prosecutrix alleged that accused tried to force her perform oral sex, said allegation was covered under the definition of penetrative sexual assault as defined under Section 3(d) of the Protection of Children From Sexual Offences Act and under Section 375(A), IPC.

JUDGMENT

Nirmaljit Kaur, J. —This is second bail application under Section 439 Cr.P.C. The petitioner is seeking bail in Session Case No.152/2013 arising out of FIR No.122/2013, P.S. Mahila Thana (West) Jodhpur and 0/2013, P.S. Kamla Market Delhi, pending trial in the Court of Sessions Judge, Jodhpur for offence under Sections for the offence under Sections 342, 376(2)(f), 376(d), 370(4), 354a, 506, 509/34, 120-B of the IPC, Sections 23 & 26 of the Juvenile Justice (Care and Protection of Children) Act, 2000 and Section 5(f)/6, 5 (G)/6, 7/8 of the Protection of Children from Sexual Offences Act, 2012.

2. The first bail application of the petitioner was dismissed on 1.10.2013 by a detailed order. The second bail application has been filed on the ground that challan has since been filed and that the earlier bail was dismissed at the point of time when the investigation of the case registered against the petitioner was in progress.

3. Learned Senior Counsel, Shri Ram Jethmalani, addressed arguments on 7.1.2014 as well as on 13.1.2014, which were continued by Mr. C.V. Nagesh, Senior Counsel, on the subsequent date and finally concluded by handing over written submissions on 3.2.2014.

4. It was argued that the material collected does not make out a serious offence for which a sentence of imprisonment exceeding five years can be imposed upon the petitioner. The allegations alleged against the petitioner are under three different enactments. Firstly, under Sections 23 and 26 of the Juvenile Justice (Care and Protection of Children) Act, 2000. Under these Sections, a child should be procured for the purpose of any hazardous employment and the offence should be committed by a person who is in actual charge of or control over the child, whereas, there is no evidence available on record that the prosecutrix, who is a child, was procured for the purpose of any employment or that the petitioner was the person having the actual charge of or control over the child so assaulted.

5. Secondly, accusations are under the provisions of Protection of Children from Sexual Offences Act, 2012 of having committed the act of aggravated penetrative sexual offence. Under Section 6 of the said Act, aggravated penetrative sexual assault is attributable to certain class of persons who have committed the act of penetrative sexual assault; they being a police officer, member of the armed force or security forces, a public servant, a person on the management or on the staff of jail, remand home, protection home, observation home, or other place of custody or care and protection established by or under any law for the time being in force, management or staff of a hospital and the management or staff of an educational institution or religious institution, whereas, in the present case, the prosecutrix was a student of Gurukul, which is run by a trust and therefore, the petitioner has got nothing to do with the institution where the prosecutrix was studying and the said offence was not committed in such an institution. Further, from the several statements of the prosecutrix, it is evident that there is no allegation of penetration. Thus, from the statement of the prosecutrix, if taken on face value, the only conclusion one can be arrived, is that her modesty came to be outraged and nothing else, for which the maximum sentence that could be imposed is for a period extending upto five years only. The offence was not so serious that would disentitle the petitioner to have the benefit of bail.

6. Thirdly, the petitioner is alleged to have committed offences which are made penal under Sections 342, 354-A, 506, 509 and under Section 376(d)(f) and 370(4) of the Indian Penal Code. Section 375 of the Indian Penal Code defines “Rape”. “Rape” as defined under Section 375 of the Indian Penal Code is in para materia with the definition of penetrative sexual assault as defined under Section 3 of the Protection of Children from Sexual Offences Act. While dealing with the penetrat