Judgment

1. The applicant, accused Sunny Kumar, has filed an application for grant of bail in FIR No. 57/2019 registered with Police Station, Bari Brahmana, Samba for offences under Section 354 RPC read with Section 8/10 Protection of Children from Sexual Offences Act (POCSO) Act.

2. The prosecution case in brief is that on 30.04.2019, complainant filed an application in the Police Station, Bari Brahmana, Samba that her child aged three years was studying in Mount Litera School in Nursery class since 12th April, 2019. After some days of admission, she started behaving strangely and after some time disclosed that the driver and conductor of her school bus used to tease her and that they used to kiss and touch her private parts. This incident occurred on her way to school. The complainant immediately approached the School Management the very next day and they assured her that they would look into the matter but no action was taken. The name of vehicle drivers is Ravi Kumar S/o Krishan Lal and Sunny Kumar S/o Puran Chand. The police on this complaint registered the FIR and started investigation in the case.

3. The challan was produced against the applicant Sunny Kumar and one Ravi Kumar in the Court of learned Special Judge, Samba on 24.06.2019. The charges were framed by the trial Court vide order dated 19.08.2019.

4. The applicant had moved an application for grant of bail before the Court of Principal Sessions Judge, Samba, who rejected the same vide order dated 10.04.2020 on the ground that in view of the seriousness of the offence, no ground for bail was made out.

5. The applicant submits that he has been implicated in a false and frivolous criminal case. According to him, the complainant had some score to settle with school management on the issue of fee of her child and there was also exchange of hot words with the helper of the vehicle, over the issue that her daughter used to say that driver Uncle beats her. The rude behavior of the helper and coupled with the fee issue has led to this complaint. The allegations according to him are only against the co-accused and not against him, as the applicant was not involved in the case. The delay in trial has violated applicant rights of personal liberty as guaranteed to him under the constitution of India.

6. The respondents have resisted the bail application by filing objections. Mr. A.M.Malik, learned Dy.A.G. submits that the applicant alongwith other accused are involved in the commission of offence against a three years old child and are being tried under section 354 RPC and under Section 8/10 of POCSO Act. The offences are heinous in nature, therefore, the applicant does not deserve any concession of bail.

7. Mr. Jagpaal Singh, learned counsel for the complainant submits that the applicant alongwith the co-accused committed a very heinous offence against a small three years old child which has had a very deep impact on the mind of the child. It is a case where allegations of sexual assault upon three years child and as per Section 29 of the POCSO Act, the court must presume the applicant guilty and proceed against the applicant, therefore, his application deserves to be dismissed at the very outset.

8. The provisions of the Cr.P.C. for grant of bail are applicable to the proceedings for the offences of POCSO Act, but while considering this application in accordance with the provisions of Section 439 Cr.P.C., the provisions of POCSO Act are also required to be taken into consideration. Section 29 raises a presumption of commission of offence under Sections 3, 5, 7 of the POCSO Act against a person who is prosecuted for the commission of offences under the said Act unless the contrary is proved. Sections 29 & 30 of the POCSO Act read as under:

“29. Presumption as to certain offences - Where a person is prosecuted for committing or abetting or attempting to commit any offence under Sections 3, 5, 7 and Section 9 of this Act, the Special Court shall presume, that such person has