SANTOSH KUMAR MANDAL Vs. STATE

JUDGEMENT

(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 Sec. 12 of Protection of Children from Sexual Offence Act, 2012 (in short "the POCSO Act").

(2.) The submissions of learned 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 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 (NCT) of Delhi and (2007) 14 SCC 325 Avinash Bhosale Vs. Union of India and anr. and of the High Courts reported as 2005 (2) KLJ 115 C.K. Boban Vs. The Union of India, 2007 Crl.L.J. 2025 Amarnath Vyas Vs. State of Andhra Pradesh and 2013 (56) PTC 282 (Del) State Govt. of NCT of Delhi Vs. 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 Sec. 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 8th and 9th 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 and ors. Vs. Jarnail Singh and anr., 118 (2005) DLT 194 Inderjeet Nagpal v. Directorate of Revenue Intelligence (DRI), and 2006 (91) DRJ 384 Pradeep Mehta Vs. State and anr. it is stated that the offence punishable under Sec. 12 of the POCSO Act is a non-bailable offence and thus the petitioner cannot claim bail as a matter of right.