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The petitioner had sought for pre-arrest bail for offences punishable under Sec. 341, 323,504, 506, and 376 of the Indian Penal Code. Along with section 4 of the Protection of the Children from Sexual Offences Act.

Sec. 4 of the Prevention of Children from Sexual Offences Act mandates a sentence of 10 years for penetrative sexual assault. In case a penetrative sexual assault is caused to a child below 16 years, the punishment extends to 20 years. In the said case, POCSO is invited due to the age of the victim, a minor.

Brief Facts of the Case

The petitioner, Afzal allegedly committed the act of rape on a 15-year-old child. He had done so with the help of his uncle. Since the girl was a minor, Section 4 was in question.

Petitioner’s Submission

The counsel contended that there was a delay in filing the first information report. The incident took place on 20.06.2018 while the first information report was filed on 30.07.2018. The delay of one month had no explanation as per the counsel. It was also contended that the defense of section 4 under POCSO can not be attracted. The age of the girl was approx. between 18-19 years during the medical examination. Hence, the punishment would not fall under POCSO.

The counsel also contended that the co-accused had gotten bail. The co-accused’s case stands on identical allegations. It was further humbly contended by the counsel to grant bail to the petitioner and not try the case under POCSO.

Respondent’s Submissions

The counsel for the state was against the application for a grant of pre-arrest bail. The victim was 15 years old, and the petitioner repeatedly committed the act of rape on the victim. He also called his maternal uncle, Md Iftekhar who offered some sweets to the child. After consuming the sweets, the child became unconscious after which she was raped. The accused persons also took a video of the act. The victim supported all the allegations in the statements she made under Sec. 164 of the Code of Criminal Procedure. Keeping in mind the serious nature of the allegations, the counsel opposed the grant of bail.

Court’s Order

In the present matter, Md Iftekhra, the co-accused was granted bail. However, after looking at the serious offenses, the bench opposed the grant of bail. The petitioner had raped the victim on the pretext of marriage. He also invited his maternal uncle to disrobe and rape her after offering the sweets. They also took a video of the crime and fled the scene of the crime. The Court took into consideration the gravity of the case and rejected the grant of bail.


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