Special appeal against the rejection of a bail application in a POCSO case. The Court held that it could not interfere with the trial court's order as the case was not concluded and the victim had not been examined.
Bail application dismissed; impugned order of the Special Judge upheld.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
1 CrApel 730-2018
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPEAL NO. 730 OF 2018
Shaikh Akhtar Shaikh Noor,
Age : 30 years, Occu. Labourer,
R/o Gadiya Vihar, Jawahar Nagar,
Aurangabad.
...Appellant
Versus
1]The State of Maharashtra
2]“X”...Respondents
.......
Mr. N. V. Agarwal & Ms. A. S. Mantri, Advocates for
Appellant.
Mr. S. J. Salgare, A. P. P. for Respondent No. 1-State.
Mr. D. A. Naik, Advocate for Respondent No. 2.
.......
CORAM : T. V. NALAWADE &
SMT. VIBHA KANKANWADI, JJ.
DATE : 10-12-2018.
JUDGMENT : [Per Shri. T. V. Nalawade, J]
01.The proceedings is filed to challenge the order
made by learned Judge, Special Court, Aurangabad in
Special (POCSO) Case No. 68 of 2017 on bail application.
The Trial Court has rejected the bail application. The
charge is already framed against the present applicant for
offences punishable under Section 363, 376 of I. P. C. and
few Sections of POCSO Act and also the provisions of
2 CrApel 730-2018
Scheduled Caste and Scheduled Tribes (Prevention of
Atrocities) Act, 1989. Heard the learned Counsel for the
applicant. The submissions made shows that in the past
application for bail was filed and it was rejected by the
Trial Court and the proceeding for bail filed in this
Court was withdrawn.
02.Though, there are aforesaid circumstances, this
Court has carefully gone through the material collected
against the applicants. The age of the victim girl is
given by her is 13 years. Her version before Police shows
that when her parents were not present in the house, the
applicant came there, he used force and took her away.
She was taken to Mumbai and there in room taken on rent
basis she was kept and there the present applicant had
used force to establish physical relationship with her.
Record of medical evidence shows there was tear of hymen.
03.The submissions made by learned Counsel for the
appellant shows that the evidence of mother is recorded
and the evidence of school teacher on school leaving
certificate is given. The learned Counsel for the
appellant submitted that inference is possible on the
basis of that evidence that she had reached the age of
understanding and there was a consent. When evidence is
3 CrApel 730-2018
given before the Trial Court and the case is not
concluded, this Court is not expected to appreciate that
evidence and draw some inference on that basis. The
victim girl is not yet examined and her version before
Police shows that she had not crossed the age of 18 years
at the relevant time and age was given by her as 13 years.
In view of all the circumstances, this Court holds that it
is not possible to interfere in the order made by the
learned Special Judge. Appeal stands dismissed.
[SMT. VIBHA KANKANWADI] [T. V. NALAWADE]
JUDGE JUDGE
Dahibhate/-
2 issues framed by the court
Whether the High Court should interfere with the Trial Court's order rejecting bail in a POCSO case where the trial is pending and the victim is a minor.
Whether evidence submitted by the appellant regarding the victim's age and consent can be relied upon before the victim is examined.
3 provisions across 2 enactments
Shaikh Akhtar Shaikh Noor
The State of Maharashtra
T. V. NALAWADE
VIBHA KANKANWADI
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court