Calcutta High Court (Appellete Side)
Xxxx vs The State Of West Bengal & Anr on 2 March, 2026
2026:CHC-AS:358
IN THE HIGH COURT AT CALCUTTA
CRIMINAL MISCELLANEOUS JURISDICTION
APPELLATE SIDE
PRESENT:
THE HON'BLE JUSTICE BIVAS PATTANAYAK
C.R.M. (M) 1069 of 2025
XXXX
versus
The State of West Bengal & Anr.
For the Petitioner : Mr. Sabyasachi Banerjee, Senior Advocate
Mr. Anirban Dutta, Advocate
Mr. Ayan Mondal, Advocate
For the Opposite Party No.2 : Mr. Tilak Mitra, Advocate
Mr. Praloy Bhattacharyee, Advocate
Mr. Soumon Nanda, Advocate
Mr. Koushik Roy, Advocate
For the State : Mr. Arijit Ganguli, Advocate
Mr. Sujan Chatterjee, Advocate
Heard on : 06.01.2026, 13.01.2026,
20.01.2026, 27.01.2026
Judgment on : 02.03.2026
Bivas Pattanayak, J. :-
1. This is an application for cancellation of bail granted to the accused-
opposite party No.2 by learned Additional Sessions Judge, 1st Court,
Contai vide its order dated 20th July, 2024.
2. On 29th May 2024, the mother of the victim girl lodged a written
complaint before Inspector-in-charge, Egra Police Station against accused-
opposite party no.2 alleging of sexual exploitation of her minor daughter
aged about 14 years and of commission of serious offences under the
provisions of Protection of Children from Sexual Offences Act, 2012
(hereinafter referred to as 'POCSO Act'). On the basis of such complaint,
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FIR was registered as Egra P.S. case no. 340 of 2024 dated 29th May 2024
under section 376 (3) of India Penal Code (in short 'IPC) and section 6 of
POCSO Act. The accused-opposite party No.2 filed an application seeking
anticipatory bail being Criminal Misc case No. 127 of 2024 under section
438 of Code of Criminal Procedure (in short 'CrPC), which was rejected by
the learned trial court on 21st June 2024. Subsequent thereto, on 26th
June 2024 the accused- opposite party No.2 surrendered and prayed for
bail before the learned trial court. Such prayer for bail was fixed for
hearing and consideration on 10th July 2024, upon information to the de
facto complainant. On the said date upon considering the available
materials, the bail prayer of the accused- opposite party No.2 was rejected.
Thereafter, on 16th July 2024, chargesheet was submitted against the
accused-opposite party No.2 vide CS No.376 of 2024. On 20th July 2024,
copies were supplied to the accused under section 207 of CrPC and prayer
for bail of accused- opposite party No.2 was allowed by the learned trial
court. Being aggrieved by and dissatisfied with the aforesaid order granting
bail to the accused- opposite party No.2, the petitioner being the de facto
complainant has filed the present application seeking cancellation of bail.
3. Mr. Sabyasachi Banerjee, learned Senior advocate along with Mr.
Anirban Dutta, learned advocate appearing for the petitioner submitted
that the accused-opposite party No.2 was working as a civic volunteer in
the said police station, however, surprisingly he was not arrested by the
investigating agency upon initiation of FIR. On 21st June 2024, considering
the seriousness of the allegations and the stage of investigation, the
learned trial court rejected the prayer of the accused seeking anticipatory
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bail. Upon surrender before the trial court, the accused sought for regular
bail, which was also rejected by the learned trial court taking into
consideration the gravity of the offence and the stage of investigation. On
16th July 2024, a chargesheet was filed with extraordinary haste within 48
days of registration of the FIR, though several aspects of investigation
remained incomplete, including non-seizure of mobile phone of the
accused and non-collection of vital medical records of the victim girl which
are foundational in a criminal proceeding under POCSO Act. On 20th July
2024, the learned trial court which all along on the earlier dates rejected
the prayer of the accused for bail on the ground of gravity of the offence,
allowed the prayer for bail of the accused on the sole ground that
chargesheet has been submitted treating such submission of chargesheet
as a determinative factor for grant of bail. The accused was granted bail
within 24 days from the date of his surrender in court. The petitioner-de
facto complainant on the said date raised objection to such bail prayer of
the petitioner and also filed an application before the learned court with
the contention that the investigating agency has not collected necessary
papers relating to the treatment of the victim girl and prayed for necessary
order. However, without considering the objections raised and the
contention of such petition, the learned trial court proceeded to grant bail
to the accused-opposite party No.2 in a mechanical manner ignoring the
seriousness of the offence, the vulnerability of the victim, the likelihood of
witness intimidation and the possibility of tampering with evidence. The
order dated 20th July 2024, granting bail to the accused-opposite party
No.2 is patently perverse. In the instant case, the learned trial court
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completely failed to apply the parameters governing grant of bail including
heinous and grave nature of offence, the severity of punishment
prescribed, the likelihood of accused tampering with evidence, the
imminent possibility of threatening or influencing witnesses and the
vulnerability of child witness. To buttress his contention, he relied on the
following decisions.
(i) State of Karnataka versus Sri Darshan & Ors1;
(ii) Kaushalendra Pratap Singh versus State NCT of Delhi and
Another2;
(iii) XYZ versus State of Maharashtra and Another 3;
(iv) In the matter of: State of West Bengal 4.
Moreover, the learned trial court failed to take into account the
presumption envisaged under Section 29 of the POCSO Act which provides
that the Special Courts must presume an accused is guilty of committing,
abetting or attempting to commit offences under Sections 3, 5, 7, and 9
unless the contrary is proved. Non-consideration of presumption under
Section 29 of the POCSO Act strikes at the very root of the order granting
bail and, therefore, the impugned order under challenge is infirm and not
sustainable in law. In support of his contention, he relied on the decision
of Hon'ble Supreme Court passed in State of Bihar versus Rajballav
Prasad Alias Rajballav Prasad Yadav Alias Rajballabh Yadav 5.
1 2025 SCC OnLine SC 1702
2 2024 SCC OnLine Del 5272
3 2021 SCC OnLine Bom 12401
4 2023 SCC OnLine 4563
5 (2017) 2 SCC 178
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Further, subsequent to his release, the accused misused his liberty of bail
by threatening the victim girl on 5th August 2024 and a general diary was
lodged on the subsequent date at the police station in respect of the said
incident being GDE No.296 dated 6th August 2024. The investigating
officer sought permission to conduct an enquiry. However, the learned trial
court was of the opinion that the offence alleged in the said general diary
falls under Bharatiya Nyay Sanhita, 2023 (in short, 'BNS') and therefore it
is not the appropriate forum to pass any order in such regard and instead
advised the investigating agency to file proper application before the
concerned Magistrate. Thereafter, two applications were filed by the
petitioner, one for cancellation of bail and another for further investigation
before the learned trial court. Since the application for further
investigation was not taken up by the learned trial court, the petitioner
was constrained to file a writ petition before this Hon'ble Court being WPA
3674 of 2025 for early disposal of the same and upon direction of this
Hon'ble Court both the applications were disposed of on 3 rd April 2025.
Though the application for cancellation of bail was turned down however,
the learned trial court directed for further investigation. Upon further
investigation, more materials have been collected by the investigating
agency leading to filing of supplementary charge-sheet against the
accused.
In light of his aforesaid submissions, he prayed for cancellation of the bail
granted by the learned trial court to the accused-opposite party No.2 and
commit the accused to custody forthwith for ends of justice.
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4. In reply to contention raised on behalf of the petitioner, Mr. Tilak
Mitra, learned advocate appearing for accused-opposite party No.2
submitted that precisely the petitioner has taken two grounds for
cancellation of the bail, firstly, a threat committed by the accused which
was not taken into consideration by the learned trial court for cancellation
of the bail of the accused and secondly, that the investigation has not been
carried out in the manner in which it should have been carried out. The
ground of misuse of the condition of bail was canvassed before the learned
trial court, which has elaborately examined the contention of the general
diary lodged in relation to the incident of threat and has rejected the
prayer for cancellation of bail on the said ground on 3rd April 2025. The
petitioner has not challenged the said order of the learned trial court dated
3rd April 2025, however, surprisingly in paragraph No. 11 of the affidavit-
in-reply the petitioner states that she has challenged the said order. The
order by which the learned trial court rejected the prayer for cancellation
of bail and the reason shown therein are all relevant considerations before
this Hon'ble Court as well and until and unless the said order is
challenged before this court, the reason shown therein cannot be
interfered with and the said order of the learned trial court would stand.
The petitioner herein has challenged the order granting bail dated 20th
July 2024 when the incident of 6th August 2024 alleging of threat has not
seen the light of the day. Therefore, there cannot be any perversity or
illegality in order dated 20th July 2024 for not considering the alleged
incident which has taken place subsequently. In such backdrop, the
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application for cancellation of bail on the ground of misconduct is not
maintainable.
Further, the general diary in question does not really disclose any grievous
offence and that has only been taken out in order to harass the accused.
The allegations made therein have not been corroborated by any
sustainable materials. No case has been made out to cancel the liberty
which has been granted to the accused-opposite party No.2. Where the
grounds of intimidation being the only ground is not satisfactorily proved,
the court cannot cancel the bail granted to the accused. In support of his
contention, he relied on the decision of Hon'ble Supreme Court passed in
Samarendra Nath Bhattacharjee versus State of W.B. and Another. 6
In order to sustain an application for cancellation of bail there has to be
special and supervening circumstances which are extremely exceptional
and there should be a gross misuse of liberty. A bail once granted cannot
be cancelled mechanically. To buttress his contentions, he relied on the
following decisions of the Hon'ble Supreme Court.
(i) State (Delhi Administration) versus Sanjay Gandhi 7;
(ii) Dolat Ram and Others versus State of Haryana8;
(iii) Subhendu Mishra versus Subrat Kumar Mishra and
Another9;
(iv) Central Bureau of Investigation, Hyderabad versus
Subramani Gopalakrishnan and Another10;
6 (2004) 11 SCC 165
7 (1978) 2 SCC 411
8 (1995) 1 SCC 349
9 2000 SCC (Cri) 1508
10 (2011) 5 SCC 296
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(v) Vipan Kumar Dhir versus State of Punjab and Another 11;
(vi) Raghubir Singh and Others versus State of Bihar 12;
(vii) Imran versus Mohammed Bhava and Another13
Relying on the decision of Hon'ble Supreme Court passed in Aslam
Babalal Desai versus State of Maharashtra14 he submitted that
rejection of bail stands on one footing but cancellation of bail is harsh
order because it interferes with the liberty of the individual and hence it
must not be lightly resorted to.
Moreover, the two paramount considerations while dealing with an
application seeking for cancellation of bail are namely the likelihood of
accused fleeing from justice and tampering of evidence. In the instant case,
none of the aforesaid two grounds are attracted. Thus, the prayer for
cancellation of bail of the accused- opposite party No.2 is not sustainable.
In support of his contention, he relies on the decision of Hon'ble Supreme
Court passed in Gurcharan Singh and Others versus State (Delhi
Administration)15.
Furthermore, the presumption as enumerated in Section 29 of POCSO Act
is a rule of evidence which can only come into effect at the time of trial of a
proceeding. The presumption under Section 29 of the Act is not conclusive
and is rebuttable. The section allows the court to draw presumption
against the accused only at the time of trial upon giving the accused an
opportunity to rebut/dislodge the said presumption of evidence at the time
11 (2021) 15 SCC 518
12 (1986) 4 SCC 481
13 (2022) 13 SCC 70
14 (1992) 4 SCC 272
15 (1978) 1 SCC 118
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of trial. The provisions of the said Section do not have any application at
any stage of the proceeding except trial. The present proceedings before
this Hon'ble Court are at pre-trial stage and, therefore, the provisions of
the said Section will not be applicable at this stage. While dealing with the
provisions of section 139 of the Negotiable Instruments Act which also
postulates of a rebuttable presumption, the Hon'ble Supreme Court in its
decision in Shiv Kumar Alias Jawahar Saraf versus Ramavtar
Agarwal16 has held that rebuttable presumption cannot have any effect in
any stage but only at the time of evidence.
In view of his aforesaid submissions, he prayed that the application for
cancellation of bail is deserved to be rejected summarily.
5. On the contrary, Mr. Dutta, learned advocate for the petitioner
submitted that it is a settled practice, firmly grounded in law, that when a
bail application is rejected by a Court of Sessions, the aggrieved accused
does not challenge the rejection by filing a revision petition. Instead, a bail
application is filed before the Hon'ble High Court with disclosure of earlier
rejection. This is because the High Court is not exercising the
revisional/appellate powers over the Sessions Court but its own original
jurisdiction. The same principle applies with equal force to application
seeking cancellation of bail. The present application before this Hon'ble
Court is not a challenge to the decisions of the order dated 3rd April 2025
refusing to cancel bail but an independent invocation of this Hon'ble
Court's original power under Section 439(2) of CrPC to examine whether
the accused deserves to remain in bail and whether the order dated 20th
16 (2020) 12 SCC 500
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July 2024 is sustainable in law. The distinction between review by the
same court and cancellation by a superior court has been lucidly explained
by the Hon'ble Supreme Court in Gurusharan Singh (supra). The Hon'ble
Supreme Court has held that where cancellation of bail is sought on the
ground of violation of bail conditions or subsequent change in
circumstances, the same court which granted bail may be approached
under Section 437(5) CrPC or Section 439(2) CrPC, as the case may be.
However, where the challenge is that the order granting bail is itself illegal,
unjustified or perverse the same court cannot sit in judgment over its own
order, as such an exercise would amount to review and would attract the
bar under Section 362 of CrPC. In such cases the only efficacious remedy
lies before the superior court. Therefore, the petitioners approached this
Hon'ble Court, which is not only permissible but is legally mandated
course, seeking the Hon'ble Court to exercise its inherent powers.
Relying on the decision of Hon'ble Supreme Court in Puran versus
Rambilas and Another17, he submitted that where the bail has been
granted on irrelevant considerations or by ignoring material aspects, the
superior Court is fully competent to cancel bail even in the absence of
supervening circumstances. It further clarified that in such cases it is
futile to approach the same court again as the proper course is to invoke
the jurisdiction of the High Court under Section 439(2) of CrPC.
Moreover, the decision cited on behalf of the accused- opposite party No. 2
of the Hon'ble Supreme Court in Shiv Kumar (supra) relating to rebuttable
17 (2001) 6 SCC 338
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presumption pertains to section 139 of the Negotiable Instruments Act and
not to POCSO Act and thus is not applicable to the instant proceedings.
The proposition in other cited decisions adduced on behalf of the accused-
opposite party No.2 are settled propositions which cannot be disputed and
denied, however, those are not applicable to the facts of the present case.
6. Mr. Sujan Chatterjee, learned advocate for the State submitted that
on an application of the de facto complainant the learned trial court issued
direction for further investigation. Pursuant thereto the investigating
agency caused investigation and on completion of the same, has submitted
supplementary chargesheet against accused-opposite party no.2.
7. Upon hearing the learned advocates for respective parties following
issues have fallen for consideration:
(i) Whether the instant application for cancellation of bail is
maintainable or not?
(ii) Whether the impugned order dated 20th July 2024 of the learned
trial court granting bail to the accused-opposite party no.2 is
sustainable or not?
8. With regard to the first issue relating to maintainability of the
application, it is found that the principle contention, which is vouched, is
that the petitioner has not challenged the order of the learned trial court
dated 3rd April 2025 whereby the prayer of the petitioner for cancellation of
bail of the accused was rejected. Thus, the said order of the learned trial
court would stand until and unless it is set aside by a higher Court. The
question, which is to be examined, is whether perversity in the order
granting bail can be examined independently without there being any
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challenge to order of the learned trial court rejecting the prayer for
cancellation of bail.
9. At the outset it should be borne in mind that the concept of setting
aside an unjustified, illegal or perverse order is totally different from the
concept of cancelling the bail on the ground that the accused has mis-
conducted himself or because of some subsequent new facts necessitating
for cancellation of bail. The above position is made clear by the Hon'ble
Supreme Court in Gurcharan Singh (supra), the relevant observation is
reproduced hereunder.
"If, however, a Court of Session had admitted an accused person to bail,
the State has two options. It may move the Sessions Judge if certain new
circumstances have arisen which were not earlier known to the State and
necessarily, therefore, to that Court. The State may as well approach the
High Court being the superior Court under Section 439(2) to commit the
accused to custody. When, however, the State is aggrieved by the order of
the Sessions Judge granting bail and there are no new circumstances that
have cropped up except those already existed, it is futile for the State to
move the Sessions Judge again and it is competent in law to move the
High Court for cancellation of the bail. This position follows from the
subordinate position of the Court of Session vis-a- vis the High Court."
10. Further in Puran (supra) following the decision in Gurcharan Singh
(supra), the Hon'ble Supreme Court observed as follows:
"13. Our view is supported by the principles laid down in the case of
Gurcharan Singh & Others, etc. vs. State (Delhi Administration) reported in
1978 (1) S.C.C. 118. In this case it has been held, by this Court, that
under Section 439(2), the approach should be whether the order granting
bail was vitiated by any serious infirmity for which it was right and
proper for the High Court, in the interest of justice, to interfere.
14. Mr. Lalit next submitted that a third party cannot move a Petition
for cancellation of the bail. He submitted that in this case the Prosecution
has not moved for cancellation of the bail. He pointed out that the father of
the deceased had moved for cancellation of the bail. He relied upon the
cases of Simranjit Singh Mann vs. Union of India and another reported in
AIR 1993 S.C. 280 and Janata Dal, etc. etc. vs. H.S. Chowdhary and
others, etc. etc. reported in 1991 (3) S.C.C. 356. Both these cases dealt
with Petitions under Article 32 of the Constitution of India whereunder a
total stranger challenged the conviction and sentence of the accused. This
Court held that neither under the provisions of the Criminal Procedure
Code nor under any other statute is a third party stranger permitted to
question the correctness of the conviction and sentence imposed by the
Court after a regular trial. It was held that the Petitioner, who was a total
stranger, had no 'locus standi' to challenge the conviction and the
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sentence awarded to the convicts in a Petition under Article 32. The
principle laid down in these cases have no application to the facts of the
present case. In this case the application for cancellation of bail is not by a
total stranger but it is by the father of the deceased. In this behalf the
ratio laid down in the case of R. Rathinam vs. State by DSP, District Crime
Branch, Madurai District, Madurai and anr. reported in 2000 (2) S.C.C.
391, needs to be seen. In this case Bail had been granted to certain
persons. A group of practising advocates presented petitions before Chief
Justice of the High Court seeking initiation of suo motu proceedings for
cancellation of bail. The Chief Justice placed the petitions before a Division
Bench. The Division Bench refused to exercise the suo motu powers on the
ground that the petition submitted by the advocates was not
maintainable. This Court held that the frame of sub-section (2) of Section
439 indicates that it is a power conferred on the Courts mentioned therein.
It was held that there was nothing to indicate that the said power can be
exercised only if the State or investigating agency or a Public Prosecutor
moves by a petition. It was held that the power so vested in the High
Court can be invoked either by the State or by any aggrieved party. It was
held that the said power could also be exercised suo motu by the High
Court. It was held that, therefore, any member of the public, whether he
belongs to any particular profession or otherwise could move the High
Court to remind it of the need to exercise its power suo motu. It was held
that there was no barrier either in Section 439 of the Criminal Procedure
Code or in any other law which inhibits a person from moving the High
Court to have such powers exercised suo motu. It was held that if the
High Court considered that there was no need to cancel the bail then it
could dismiss the Petition. It was held that it was always open to the High
Court to cancel the bail if it felt that there were sufficient enough reasons
for doing so."
11. From the above proposition it manifest that the frame of sub-section
(2) of Section 439 of CrPC indicates that a power of cancellation of bail is
conferred on the High Court or the Court of Sessions. Under Section 439
(2) of CrPC, the approach should be whether the order granting bail was
vitiated by any serious infirmity for which it was right and proper for the
High Court, in the interest of justice, to interfere. Moreover, where a party
is aggrieved by the order of the Sessions Judge granting bail and there are
no new circumstances that have cropped up except those which already
existed, it is futile for the said party to move the Sessions Judge again and
it is competent in law to move the High Court for cancellation of the bail.
In Puran (supra) it is also observed by Hon'ble Apex court that there was
no barrier either in Section 439 of CrPC or in any other law which inhibits
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a person from moving the High Court to have such powers exercised suo
motu. The application for cancellation of bail before the learned trial court
was sought for on the ground of misconduct, which was rejected by the
concerned Court. During hearing it has vociferously been pressed into
service by learned advocate for the petitioner that the order granting bail
by the learned trial court is perverse as the same has been granted on
irrelevant consideration. Bearing in mind the proposition of the Hon'ble
Supreme court in the present context, this court is of the view that even if
the order of the trial court rejecting the prayer of the petitioner for
cancellation on the ground of misconduct is not challenged, the infirmity
in the order granting bail can be examined by the High Court under
Section 439(2) of the CrPC. Accordingly, the present application is
maintainable before this court.
12. With regard to the second issue pertaining to the sustainability of the
order granting bail, let me examine the impugned order in the light of
available materials on record.
12.1. The instant case is initiated against the accused-opposite party no.2
under Sections 376 (3) of IPC and Section 6 of POCSO Act. The POCSO Act
is a specialized legislation in India aimed at addressing child sexual abuse
with child-centric procedures. A child victim's statement is not that of an
accomplice but of a victim suffering physical, psychological, and emotional
trauma, and stands on a higher pedestal than even an injured witness's
testimony and as such is relevant and highly significant.
12.2. In such backdrop, let me appraise the nature of allegations made by
the minor victim girl, aged 14 years, in her statement recorded by the
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learned Judicial Magistrate under Section 164 of CrPC. Upon going
through the aforesaid statement of the victim girl, it is found that she has
categorically implicated the accused, who was her English tutor, of causing
penetrative sexual assault upon her. There are also allegations against the
accused of capturing obscene objectionable photographs of the victim girl
and blackmailing her on the basis of such photographs and coercing her
into repeated sexual assault. Ultimately the victim girl reported the fact to
her grandmother. Moreover, it is stated by the victim girl before the
learned Judicial Magistrate that due to such act of the accused person she
became mentally ill and she tried to commit suicide and was admitted to
Egra Super Speciality Hospital. The medical examination report also notes
the fact that the victim has gone through sexual intercourse with her tutor
in the month of August 2023.
12.3. On 10th July 2024 after considering the statement of the victim girl
and other available materials as well as the statement of the victim girl
made before the attending doctor that she has gone through sexual
intercourse with her tutor in the month of August 2023, the learned trial
court rejected the bail prayer of the accused with an observation that there
is indication that the accused might have established physical relationship
with the victim with the knowledge that she has not attained 18 years.
However, by the impugned order dated 20th July 2024, the learned trial
court just after 10 days despite finding that there are materials in the case
diary against the accused, yet granted bail to him on the sole ground that
upon completion of investigation chargesheet has been submitted and that
there is no other material which is presumably required to bring home the
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charge against the accused person. It is seen from the order under
challenge that the learned trial court has not dealt with the allegations
revealed from the statement of the victim girl and materials concerning the
gravity of the offence. It is surprising to note that the same court which
held in its earlier order that there are sufficient incriminating materials
against the accused, proceeded to grant bail to accused after 10 days
without any change in the circumstances save and except filing of the
chargesheet.
12.4. The court granting bail should exercise its discretion in a judicious
manner and not as a matter of course. Though at the stage of granting bail
a detailed examination of evidence and elaborate documentation of the
merit of the case may not be undertaken, however, there is a need to
indicate in such orders the reasons for prima facie concluding why bail
was being granted particularly where an accused is charged of having
committed a serious offence. Any order devoid of such reasons would
suffer from non-application of mind. It is also necessary for the court
granting bail to consider among other circumstances the following factors:-
(i) Whether there is any prima facie or reasonable ground to believe
that the accused had committed the offence;
(ii) Nature and gravity of the charge;
(iii) Severity of punishment in the event of conviction;
(iv) Danger of accused absconding or fleeing from justice, if released
on bail;
(v) Character, behaviour, means, position and standing of the
accused;
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(vi) Likelihood of offence being repeated;
(vii) The impact that the release of the accused may make on the
prosecution witnesses, its impact on the society;
(viii) Reasonable apprehension of tampering with witness or
apprehension of threat to the complainant;
(ix) Prima facie satisfaction of the court in support of the charge.
[See Prahlad Bhati versus State (NCT of Delhi)18; Anil Kumar
Yadav versus State (NCT of Delhi)19].
12.5. It is pertinent to note that none of the above parameters have been
taken into consideration by the learned trial court while granting bail to
the accused-opposite party no.2 save and except the fact that upon
completion of investigation chargesheet has been submitted therefore
further detention of the accused is not required. The above parameters
need to be adhered to and disposed of by a reasoned and speaking order.
[See Kalyan Chandra Sarkar versus Rajesh Ranjan @ pappu Yadav &
Anr20]. The jurisdiction to grant bail has to be exercised on the basis of
well settled principles having regard to facts and circumstances of each
case. The court should not be impressed by irrelevant considerations.
Discretionary jurisdiction of the court should be exercised carefully and
cautiously thereby balancing the rights of the accused and the interests of
the society. The learned trial court failed to consider the seriousness of the
offence under the POCSO Act. Needless to say, that commission of offence
against the children should be viewed as heinous and serious offence and
18 (2001) 4 SCC 280
19 (2018) 12 SCC 129
20 (2004) 7 SCC 528)
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should not be taken lightly as offence of private nature and in fact such
offences are bound to be taken as an offence against the society. At this
stage it would be profitable to reproduce the relevant observation of
Hon'ble Supreme Court in Ramji Lal Bairwa & Anr versus State of
Rajasthan & Ors21 taking into consideration the object of the POCSO Act,
as hereunder.
"17. The Objects and Reasons for the enactment of the Pocso Act, as
extracted above, would undoubtedly show that quashment of proceeding
initiated under the Pocso Act abruptly by invoking the power under
Section 482CrPC without permitting it to mature into a trial, except on
extremely compelling reasons ex facie mala fide initiated or initiated solely
to settle the score, etc. would go against the very intention of the
legislature behind the enactment. As noted earlier, it is the inadequacy of
the existing laws to address certain issues relating to sexual offences
against the children that made the legislature to come up with the
aforesaid legislation with a view to protect and respect the privacy and
confidentiality of children and to ensure their physical, emotional,
intellectual and social development.
18. The Pocso Act also addressed the lack of provisions defining various
offences against the children and also adequate penal provisions therefor.
A careful scanning of the various provisions under the Pocso Act would
reveal that with a view to achieve the aforesaid objects and purposes
various offences against the children are specifically defined and
provisions for adequate penalisation are also inserted in the Act.
Obviously, rubbing the breast of a child would constitute an offence of
"sexual assault" under Section 7 of the Pocso Act, punishable with
imprisonment of either description for a term which shall not be less than
three years and may extend to five years and also fine. They would reveal
that the commission of such offences against the children should be
viewed as heinous and serious. Needless to say, that commission of such
offences cannot be taken lightly as offences of private nature and in fact,
such offences are bound to be taken as offences against the society.
19. In the decision in Attorney General v. Satish [Attorney General v.
Satish, (2022) 5 SCC 545 : (2022) 2 SCC (Cri) 409] at para 38, this Court
held thus: (SCC p. 574)
"38. The act of touching any sexual part of the body of a child with sexual
intent or any other act involving physical contact with sexual intent, could
not be trivialised or held insignificant or peripheral so as to exclude such
act from the purview of "sexual assault" under Section 7. As held by this
Court in Balram Kumawat v. Union of India [Balram Kumawat v. Union of
India, (2003) 7 SCC 628 : (2004) 134 STC 626] , the law would have to be
interpreted having regard to the subject-matter of the offence and to the
object of the law it seeks to achieve. The purpose of the law cannot be to
allow the offender to sneak out of the meshes of law."
21 (2025) 5 SCC 117
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12.6. Bearing in mind the above observation of the Hon'ble Court, it
appears that the learned trail court has granted bail to the accused as a
matter of course without considering the gravity of the offence and the
object behind the enactment of POCSO Act which is precisely a specialized
legislation in India aimed at addressing child sexual abuse with child-
centric procedures. For the reasons as noted above, the impugned order
dated 20th July 2024 granting bail to the accused requires intervention by
this court as it is not sustainable in law. This court finds substance in the
submissions of learned advocate for the petitioner relying on Sri Darshan
(supra), Kaushalendra Pratap Singh (supra), XYZ (supra) and one decision of
this Court.
12.7. Further on the aforementioned date i.e. 20th July 2024, the de facto
complainant filed a petition before the learned trial court contending that
the investigating officer has not collected necessary papers relating to the
treatment of the victim girl and prayed for necessary orders. However, the
learned trial court has gone on to observe that though the de facto
complainant asserts that the investigation has not been conducted
properly still she has chosen not to pray for any legal remedy regarding the
same. Needless to mention that the learned trial court has not made any
observations with regard to contentions raised in the aforesaid application
of the petitioner-de facto complainant particularly when the said
application was before the court for consideration. In that event the
observation of the learned trial court that the de facto complainant did not
choose to take any legal remedy does not hold good. It is also not
understandable to this Court the reasons for not considering the prayers
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made by the de facto complainant on the said date raising displeasure in
the manner the investigation has been undertaken by the investigating
agency.
13. It has been strenuously argued on behalf of accused-opposite party
no.2 relying on Samarendra Nath Bhattacharjee (supra) that grounds of
intimidation for cancellation have to be satisfactorily proved and further
relying on Sanjay Gandhi (supra), Dolat Ram (supra), Subhendu Mishra
(supra), Subramani Gopalakrishnan (supra), Vipan Kumar Dhir (supra),
Raghubir Singh (supra), Imran (supra), he submitted that in order to
sustain an application for cancellation of bail there has to be special and
supervening circumstances which are extremely exceptional and there
should be a gross misuse of liberty. Although such propositions are
accepted ones but these need not be dealt with separately in a case of this
nature where bail has been granted on irrelevant consideration without
considering the nature, gravity and seriousness of the offence and there is
infirmity in the impugned order granting bail to the accused.
14. Relying on the decision of Aslam Babalal Desai (supra) it has been
vociferously argued on behalf of the accused-opposite party no.2 that
rejection of bail stands on one footing but cancellation of bail is harsh
order because it interferes with the liberty of the individual and hence it
must not be lightly resorted to. Although there cannot be any quarrel with
regard to such proposition yet such principle is not relevant when the
court finds that the order granting bail proceeded on certain irrelevant
consideration.
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15. Relying on the decision in Rajballav Prasad Alias Rajballav Prasad
Yadav Alias Rajballabh Yadav (supra) it has been argued on behalf of the
petitioner that the learned trial court failed to take into account the
presumption envisaged under Section 29 of the POCSO Act which strikes
at the very root of the bail order and, therefore, the impugned order
granting bail is infirm and not sustainable in law. On the contrary, learned
advocate for the accused-opposite party no.2 relying on Shiv Kumar (supra)
argued that rebuttable presumption cannot have any effect in any stage
but only at the time of evidence.
15.1. In order to examine the question raised as aforesaid, it would be
profitable to reproduce the observation of Hon'ble Supreme Court in
Sambhubhai Raisangbhai Padhiyar versus State of Gujarat 22 as
follows:
"33. It is clearly established in evidence that the deceased was subjected
to a brutal sexual assault. The injuries as evidenced in the post-mortem
report Ext. P-28 particularly Injury clearly indicate that the deceased was
subjected to aggressive penetrative sexual assault. The injury on the
prepuce of the penis of the accused along with the matching of the blood
group coupled with other circumstantial evidence clearly constitute
foundational facts for raising presumption under Sections 29 and 30 of
the Pocso Act.
34. Sections 29 and 30 of the Pocso Act read as under:
"29. Presumption as to certain offences.--Where a person is prosecuted
for committing or abetting or attempting to commit any offence under
Sections 3, 5, 7 and Section 9 of this Act, the Special Court shall presume,
that such person has committed or abetted or attempted to commit the
offence, as the case may be unless the contrary is proved.
30. Presumption of culpable mental state.--(1) In any prosecution for any
offence under this Act which requires a culpable mental state on the part
of the accused, the Special Court shall presume the existence of such
mental state but it shall be a defence for the accused to prove the fact that
he had no such mental state with respect to the act charged as an offence
in that prosecution.
(2) For the purposes of this section, a fact is said to be proved only when
the Special Court believes it to exist beyond reasonable doubt and not
merely when its existence is established by a preponderance of
probability."
22 (2025) 2 SCC 399
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35. It will be seen that presumption under Section 29 is available where
the foundational facts exist for commission of offence under Section 5 of
the Pocso Act. Section 5 of the Pocso Act deals with aggravated
penetrative sexual assault and Section 6 speaks of punishment for
aggravated penetrative sexual assault. Section 3 of the Pocso Act defines
what penetrative sexual assault is. The relevant sections are extracted
hereinbelow:
"3. Penetrative sexual assault.--A person is said to commit "penetrative
sexual assault" if--
(a) he penetrates his penis, to any extent, into the vagina, mouth, urethra
or anus of a child or makes the child to do so with him or any other
person; or
***
5. Aggravated penetrative sexual assault.–(a)-(h) * * *
(i) whoever commits penetrative sexual assault causing grievous hurt or
causing bodily harm and injury or injury to the sexual organs of the child;
or
***
(m) whoever commits penetrative sexual assault on a child below twelve
years; or
6. Punishment for aggravated penetrative sexual assault.–(1) Whoever
commits aggravated penetrative sexual assault shall be punished with
rigorous imprisonment for a term which shall not be less than twenty
years, but which may extend to imprisonment for life, which shall mean
imprisonment for the remainder of natural life of that person, and shall
also be liable to fine, or with death.
(2) The fine imposed under sub-section (1) shall be just and reasonable
and paid to the victim to meet the medical expenses and rehabilitation of
such victim.”
From the above proposition it manifest that the presumption under
Section 29 of the POCSO Act is activated only if the prosecution proves the
foundational facts. In other words, the presumption is triggered only after
the prosecution has laid sufficient groundwork by establishing the basic
facts. The decision in Rajballav Prasad Alias Rajballav Prasad Yadav Alias
Rajballabh Yadav (supra) does not lay down any proposition that the
presumption under section 29 of POCSO Act starts to operate upon
initiation of the FIR itself. Thus, the argument advanced on behalf of the
petitioner in this regard does not hold good.
16. For the reasons as above, the impugned order of the learned trial
court granting bail to the accused-opposite party no.2 is not sustainable.
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17. Accordingly, the bail granted to the accused-opposite party no.2 by
learned Additional Sessions Judge, 1st Court, Contai vide order dated 20th
July, 2024 stands cancelled.
18. The accused-opposite party no.2 is directed to surrender before the
learned trial court within a period of 10 days from date of this order, failing
which, the learned trial court shall take appropriate coercive steps for
committing the accused to custody.
19. The copy of the case diary be returned to the learned advocate
representing the State.
20. Accordingly, C.R.M. (M) 1069 of 2025 stands disposed of.
21. All concerned parties shall act in terms of the copy of the judgment
duly downloaded from the official website of this Court.
22. Urgent Photostat certified copy of the judgment, if applied for, be
given to the parties on compliance of all necessary legal formalities.
(Bivas Pattanayak, J.)