The well-being of the child victim and the prevention of potential influence on witnesses are paramount considerations in cases involving offences under the POCSO Act.

JUDGMENT

Subramonium Prasad, J. - The petitioner seeks bail in FIR No. 558/2021 dated 30.08.2021 registered at Police Station Prashant Vihar for offences under Section 354, 354A IPC read with Section 8 of the Protection of Children from Sexual Offences Act, 2012 (POCSO Act).

2. The brief facts leading to the present case are as follows:-

i. The FIR was registered on the complaint of the prosecutrix, who is 16 years of age. It is stated that the prosecutrix resides with her parents and she used to take Mathematics classes from the petitioner since 10th Standard. It is stated that she is now in 11th Standard and offline classes begun on 29.08.2021.

ii. It is stated that on the first day of her offline class, the petitioner asked her to stay back to understand the concept taught on the previous day. He gave his notebook and went to take classes for 10th Standard. It is stated that when 10th Standard students left, the petitioner came to her to clear her doubts. He asked the prosecutrix about her 10th Standard marks and asked for a party.

iii. It is stated that the petitioner told her that she is cute and hugged her and even pulled her cheek. It is stated that the prosecutrix thought that the petitioner was doing it as an elder but that touch felt bad and uncomfortable. It is stated that when the prosecutrix packed her bag and was leaving, the petitioner stopped her and said that she was very cute and touched her cheek, closed the door and kissed her on her right cheek and then on the left.

iv. It is stated that the prosecutrix was scared since she was alone, so she did not scream. It is stated that she felt very uneasy and was in pain. It is also stated that she left but she was feeling extremely uncomfortable because of the manner in which the petitioner had hugged her three to four times as well as the manner in which he was talking to her.

v. It is stated that she called her parents on her way home. Material on record reveals that after she went home, a PCR call was made and it was recorded vide DD Entry No. 49A. The Police reached the residence of the prosecutrix and met the prosecutrix along with her parents wherein her mother told the Police that the prosecutrix had been molested by the petitioner herein.

vi. It is stated that an NGO was called and the victim was counselled. Medical examination was conducted vide MLC No.2518/2021. A written complaint was handed over to the Police and the instant FIR being FIR No. 558/2021 dated 30.08.2021 was registered at Police Station Prashant Vihar for offences under Section 354, 354A IPC read with Section 8 of the Protection of Children from Sexual Offences Act, 2012 (POCSO Act) was lodged.

vii. The petitioner was arrested on the same day i.e. 30.08.2021. Charge sheet stands filed. The petitioner filed an application for grant of bail which was dismissed vide order dated 04.10.2021 passed by the learned Additional Sessions Judge stating that a reading of the facts shows that an offence under Section 10 of the POCSO Act is made out which is a more serious offence than the offence under Section 8 of the POCSO Act. The petitioner has approached this Court by filing the instant bail application.

3. Mr. Mohit Mathur, learned Senior Advocate contends that a reading of the FIR shows that no offence under Section 8 of the POCSO Act against the petitioner is made out. He states that Section 7 of the POCSO Act defines sexual assault and the allegations in the FIR are not sufficient to bring the case within the ambit of Section 7 of the POCSO Act and, therefore, the petitioner cannot be punished under Section 8 of the POCSO Act. He states that assuming that there is sufficient material to proceed against the petitioner for an offence under Section 8 of the POCSO Act, for which the maximum punishment is only 5 years. He contends that the petitioner is in custody from 30.08.2021 and charge sheet stands filed and, therefore, there is no chance of the petitioner tampering with the evidence.

4. Mr. Mohit Math