BAIL APPLN. 1763/2016

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IN THE HIGH COURT OF DELHI AT NEW DELHI

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Reserved on: 7^th September, 2016

Decided on: 28^th September, 2016

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BAIL APPLN. 1763/2016

SANTOSH KUMAR MANDAL

..... Petitioner

Represented by:

Mr. Vikas Malik and Mr.

Nishant Gautam, Advocates.

versus

STATE

..... Respondent

Represented by:

Mr. Ravi Nayak, APP for the

State with SI Pradeep Rawa, PS

Vasant Kunj, North.

CORAM:

HON'BLE MS. JUSTICE MUKTA GUPTA

1.

By the present petition, the petitioner seeks regular bail in case FIR

No.320/2016 under Sections 354(D)/342/363/506 IPC and Section 12 of

Protection of Children from Sexual Offence Act, 2012 (in short „the POCSO

Act‟).

2.

The submissions of leaned counsel for the petitioner are twofold,

firstly that as per the allegations in the FIR, ingredients for offences as

alleged have not been made out including the one punishable under Section

12 of the POCSO Act and even if made out, the same being bailable

offences, the petitioner is required to be released on bail on his furnishing

surety bond. To press the first contention, learned counsel for the petitioner

contends that even as per the allegations of the prosecutrix, the petitioner had

blocked phone number of the prosecutrix, thus it was the prosecutrix who

was after the petitioner and not vice-versa. Further even taking the

allegations on the face of it, no act has been attributed to the petitioner with

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sexual overtones which is an essential ingredient for the offences alleged.

With regard to the second contention, referring to the decisions of the

Supreme Court reported as (2001) 5 SCC 34 Rajeev Chaudhary Vs. State

Naresh Kumar Garg it is stated that rest of the offences invoked against the

petitioner are bailable and as per the law laid by the Supreme Court and

various High Courts, since for the offence punishable under Section 12 of

the POCSO Act, the sentence provided is imprisonment upto 3 years, it is a

bailable offence. Therefore, bail was required to be granted as of right to the

petitioner.

3.

Learned APP for the State on the other hand contends that no doubt as

per statement of the prosecutrix, the petitioner blocked her number however

the call details of the petitioner‟s mobile phone call reveal that he had made

number of calls to the prosecutrix on her mobile phone and on the

intervening night of 8^th and 9^th June, 2016 he made repeated calls to the

prosecutrix from nearly 11 O‟clock in the night till he took her to the

institute in the midnight and was apprehended at 1.00 AM when the parents

of the prosecutrix reached the institute with the police. Relying upon the

decisions reported as (2006) 6 SCC 277 Bhupinder Singh & Ors. Vs. Jarnail

State and Anr. it is stated that the offence punishable under Section 12 of the

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POCSO Act is a non-bailable offence and thus the petitioner cannot claim

bail as a matter of right.

4.

The above-noted FIR was registered on the complaint of the

prosecutrix who stated that she was a student of 11^th standard. The petitioner

used to come to her house to give tuitions at around 6-7 pm and was teaching

her for the last two years. The petitioner used to talk to her on the phone

occasionally. For the last 2-3 days, the petitioner wanted to meet her and

was calling her on the roof at night however she refused to do so. On 8^th

June, 2016 the petitioner put her phone on the rejected list and did not take

up. The prosecutrix tried to make a number of calls and finally when she

made a call at night, he picked it up. The petitioner called her outside her

house at the night itself and the prosecutrix went out of the house without

telling anybody as everybody was sleeping. When she reached outside the

house, the petitioner caught hold of her hand and asked her to come along

with him as he wanted to talk to her. When the pro