O R D E R

% 12.02.2013 Crl.M.A. No.1660/2013 (Exemption) Allowed, subject to all just exceptions.

Bail Appln. No. 216/2013 Petitioner’s counsel states that inadvertently the translated copy of the FIR appearing at page 16 and 17 is not the correct copy. However, the vernacular version of the FIR (Annexure A) is on record at page 12 of the paper book.

Petitioner is real paternal uncle (chacha) of the victim aged

15 years, who is accused of sexually assaulting the victim which carries a minimum sentence of three years, extending to a period of five years as per Section 8 of The Protection of Children from Sexual Offences Act, 2012. Order of 21st January, 2013 of the Sessions Court declining pre-arrest bail to petitioner notes that the offence committed by petitioner is of attempt to rape and is punishable under the Indian Penal Code also.

When the offence under Sections 376 read with Section 511 of I.P.C. is also an offence under The Protection of Children from Sexual Offences Act, 2012 then there is no need of simultaneously prosecuting petitioner for the offence of attempting rape by invoking relevant provision of Indian Penal Code. However, upon bare perusal of the F.I.R. No. 23/2013 under Sections 8 of The Protection of Children from Sexual Offences Act, 2012 registered at Police Station Uttam Nagar, Delhi, I prima facie find that plea of petitioner being falsely implicated on account of some property dispute as advanced by petitioner’s counsel does not appear to be plausible on the face of it as in Indian society neither the victim, who is a child here, nor her family would come forward to stake the honor of their family to settle a so called property dispute. It is being so said because, admittedly no civil or any other kind of litigation in respect of any property dispute is pending in any court of law. The contention of petitioner’s counsel that Section 164Aof Cr.P.C. has not been complied with while referring to Section 27 of The Protection of Children from Sexual Offences Act, 2012 is without any basis because mandate of Section 27 of this enactment is that if FIR or a complaint has not been registered under this enactment, then medical examination of a child is to be conducted in accordance with the provisions of Section 164A of Cr.P.C. Since FIR in question stands already registered under this enactment, therefore resort to Section 164A of Cr.P.C. is not called for.

Much emphasis was laid by petitioner’s counsel at the hearing that medical examination of a child/victim is essential for prosecuting any accused under this enactment, but upon plain reading the FIR in question, I find that there was no need for a medical examination of the victim in this case because petitioner is not accused of aggravated penetrative sexual assault.

To seek pre-arrest bail in a serious offence like the present one, petitioner being aged 24 years or of his being married for the last six months only and his possessing clean antecedents do not provide enough justification to grant discretionary relief of stay from arrest in this matter.

During the course of hearing, reference was made to Sections 29 and 30 of The Protection of Children from Sexual Offences Act, 2012 to point out that there is presumption of culpable mental state of accused and of accused being inebriated is of no defense, may not be of any relevance in this matter for the reason that it is not petitioner’s case that he was under some kind of intoxication when this act is allegedly committed.

The factors to be taken into consideration while dealing with anticipatory bail applications, as reiterated by Apex Court in Siddharam Satlingappa Mhetre vs. State of Maharashtra and Ors., (2011) 1 SCC 694 are as under:-

“The following factors and parameters can be taken into consideration while dealing with the anticipatory bail:

i. The nature and gravity of the accusation and the exact role of the accused must be properly comprehended before arrest is made;

ii. The antecedents of the applicant