(Prayer: For Anticipatory Bail in Crime no.10/2019 on the file of the respondent police.)

This petition has been filed by the petitioner/accused, seeking anticipatory bail for the alleged offences punishable under Sections 11 (i), (ii) and Section 12 of Protection of Children from Sexual Offences Act, 2012 (hereinafter referred to as POCSO Act) in Crime No.10 of 2019.

2. The case of the prosecution is that on 31.05.2019 at about 4.00 p.m., the defacto complainant's 5 years old daughter was playing along with her friends in front of Mariamman Temple and later, the said child went to the petitioner's house, which is situated nearer to the said temple. Subsequently, one child by name Vishal, aged about 11 years found that in the petitioner's house, the petitioner was standing in a nude position and the defacto complainant's child was also standing in a nude position. The said Vishal informed the said fact to the defacto complainant's wife Kavitha and thereafter, the said Kavitha went to the house of the petitioner and found that her child was standing in the Veranda (front yard) of the house without any dress in a crying condition and she took the child and went to her house and informed the said fact to her husband (defacto complainant) and that the defacto complainant lodged a complaint before the respondent Police on 02.06.2019 at 07.00 p.m.

3. The learned counsel appearing for the petitioner has submitted that in the POCSO Act, nowhere, it is specifically stated that the offences under the said Act are bailable or non-bailable. He further submitted that since the POCSO Act is a Special Act, Part II of the Schedule I of the Code of Criminal Procedure, 1973 (hereinafter referred to as Cr.P.C) will apply. He further submitted that the offence under Section 11(i), (ii) of the POCSO Act is punishable under Section 12 of the Act. He further submitted that since the offence punishable under Section 12 of the POCSO Act provides for a punishment of imprisonment of either description for a term which may extend to 3 years and also be liable to fine, same will not fall in Category 2, but in Category 3 of Part-II of Schedule-I of Cr.P.C and would be thus a bailable offence. He further submitted that even if it is assumed that the offence punishable under Section 12 of the Act is non-bailable, the averments made in the FIR would not attract Section 11(i),(ii) of the POCSO Act. He further submitted that due to property dispute, defacto complainant has lodged a false complaint against the petitioner. He further submitted that the petitioner is aged about 70 years and at this age, it is highly unbelievable that the petitioner has committed any offence. He further submitted that the victim child has not stated anything about the alleged offence in the statement recorded under Section 164 Cr.P.C and therefore, he prayed to grant anticipatory bail to the petitioner.

4. The learned counsel for the petitioner, in support of the aforesaid contentions, relied upon the decision in Sivaji Hi-Tec Foods Private Limited, rep. By its Director, KSS Karunakaran, Chennai-600117, reported in (2019) 2 MLJ (Crl) 313.

5. Per contra, the learned Additional Public Prosecutor appearing for the respondent has submitted that since the petitioner was standing in a nude position in front of 5 years old female child and the said child was also found in nude position, the said act would fall under Section 11(i),(ii) of the POCSO Act and the same is liable to be punished under Section 12 of the POCSO Act. He further submitted that since the offence punishable under Section 12 of the POCSO Act provides for a punishment of imprisonment of either description for a term which may extend to 3 years and fine, the same would fall within the Category 2 of Part II of Schedule I of Cr.P.C. Hence, the said offence is cognizable and non-bailable. He further submitted that the