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NAFR

HIGH COURT OF CHHATTISGARH, BILASPUR

M.CR.C. No. 5344 of 2015

1. Philomena Kerketta, D/o. Guruwaro, aged about 19 years, Presently

residing at Jyoti Mission School, Gram Sarbhoka, Thana – Podhi,

District Koriya (C.G.)

----Applicant

Versus

1. State Of Chhattisgarh, Through : Police Station – Podhi, District Koriya

(C.G.)

---- Respondent

For Applicant

: Mr. Anand Dadariya, Advocate

For Respondent/State

: Mr. Anant Bajpai, Panel Lawyer

Hon'ble Shri Justice Goutam Bhaduri

Order On Board

23/11/2015

1.

This is the first bail application filed under Section 439 of the Code of

Criminal Procedure, 1973 for grant of regular bail to the applicant who

has been arrested in connection with Crime No.105/2015, registered at

Police Station – Podhi, District – Koriya (C.G.) for the offence

punishable under Section 377 of Indian Penal Code, 1861 read with

Section 5(f), (i), (m) and Section 6, 19 (1), 20 and 21 of the Protection

of Children from Sexual Offences Act, 2012 (henceforth 'POSCO Act)..

2.

Case of the prosecution, in brief, is that a report was lodged on

10.09.2015 by the complainant, Smt. Laxmaniya, the mother of the

prosecutrix and on such report, on primary investigation, the offence

under Section 377 of Indian Penal Code, 1861 read with Section 5(f),

(i), (m) and Section 6, 19 (1), 20 and 21 of the POSCO Act is

registered and still the matter is under investigation. It was the case

that the minor girl aged about 9 years, student of Class-4th was

sexually abused and penetrative sexual assault was committed

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causing grievous hurt and bodily injury on the girl. The offence is being

investigated.

3.

Learned counsel for the applicant would submit that the case against

the applicant under the POSCO Act can not be made against this

applicant as Section 3 of the POSCO Act, would only take within its

ambit penetrative sexual assault for male person and here the

applicant is a female. He read out the Section 3 of POSCO Act and

submits that in such circumstances, the offence under POSCO Act is

not made out. He would further submit that the name of the applicant

has not been named in the FIR and even the statement recorded of

the mother of the prosecutrix/child, name of the present applicant has

not been stated. He would further submit that the prosecutrix at the

relevant time had some infection in her private part and on account of

that some bleeding occurred, which was informed to the in-charge of

the hostel. He would further submit that the District Child Protection

Committee do not have any jurisdiction to investigate such type of

offence. He would further submit that the statement of the mother of

the prosecutrix read with statement of the prosecutrix would not make

out the case under the sections against this applicant which is being

investigated. He would further submit that the applicant is in jail since

10.09.2015 and taking into the fact that the applicant could not have

committed sexual overt act being a lady, therefore, she may be

released on bail.

4.

On the other hand, learned counsel for the State opposes the bail

application. He would submit that the mother of the prosecutrix has

made a report and the investigation is going on, therefore, at this

stage, it can not be conclusively stated that no offence has been

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committed.

5.

I have heard learned counsel appearing for the parties and perused

the case diary.

6.

Perusal of the case diary would show that the offence is still under

investigation. It further show that mother of the prosecutrix was

informed while the prosecutrix aged about 9 years was in acute pain

and trouble and thereafter she came down alongwith her mother and

subsequently the report was made. The case diary contains FSL report

and FSL report confirms that inner garments of the prosecutrix shows

presence of spermatozoa. The medical report a