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Keywords: Delhi High Court, POCSO Act, Sexual Offences, Bail Application, Child Victim, Guidelines  

New Delhi, September 5, 2023 – In a recent landmark decision, the Delhi High Court has set  important considerations for courts when granting bail in cases involving sexual offenses  against children under the Protection of Children from Sexual Offences (POCSO) Act. The  ruling, delivered by Justice Saurabh Banerjee, highlights the critical need to protect the rights  and well-being of young victims.  

The accused, who was residing as a tenant, was alleged to have committed a grievous act of  sexual misconduct with a 3-year-old child. The accused was taken into custody on October 2,  2021, following the incident. Subsequently, the accused filed a bail application, which was  granted by the Trial Court on February 4, 2023. This decision prompted the complainant to  file a petition challenging the bail order. The accused faced charges under several sections of  the Indian Penal Code (IPC), including Sections 342 (wrongful confinement), 354 (outraging  the modesty of a woman), 354-B (assault or use of criminal force against a woman with the  intent to disrobe), and 363 (kidnapping). The complainant, through their counsel, argued that  the Trial Court had failed to consider the seriousness of the offense while granting bail to the  accused. They also highlighted that insufficient time had been given for anyone to appear and  oppose the bail application on behalf of the child victim. Additionally, the accused was  charged under Section 10 of the Protection of Children from Sexual Offences (POCSO) Act,  2012.  

The key issue addressed by the Delhi High Court was the gravity and heinousness of the  offense involved and the need to safeguard the rights and well-being of the child victim. The  Court emphasized that cases involving sexual violence against children have a profound  impact on the life, limb, and future of the victim, particularly when they are hurt physically,  emotionally, and mentally at a young age. The Court criticized the Trial Court’s decision to  grant bail in a mechanical manner without expressing a proper opinion or applying judicial  scrutiny to the facts and merits of the case. In such cases, the Court stressed the importance of  ascertaining whether a prima facie case exists against the accused. Drawing from legal  precedents and principles, including the Supreme Court’s judgment in Deepak Yadav v. State 

of Uttar Pradesh, the Delhi High Court listed several key considerations for courts while  granting bail in cases involving sexual offenses against children:  

 Prima Facie Evidence: Courts should assess whether there is reasonable ground to  believe that the accused committed the offense.  

 Nature and Gravity of the Offense: The severity of the accusation and potential  punishment upon conviction must be considered.  

 Risk of Absconding: The danger of the accused fleeing or absconding if released on  bail.  

 Character and Standing: The character, behaviour, means, position, and standing of  the accused in society.  

 Risk of Repeating the Offense: Likelihood of the offense being repeated.   Witness Tampering: Reasonable apprehension of witnesses being influenced.   Justice Thwarted: The danger of justice being thwarted by the grant of bail.  

In addition to these considerations, the Delhi High Court introduced specific factors for  sexual offense cases under the POCSO Act:  

 Age of the Victim: The age of the child victim.  

 Age Difference: The age difference between the victim and the accused.   Ferocity of the Offense: The severity of the crime.  

 Relationship: The relationship between the victim and the accused.   Proximity of Residence: Whether the accused and victim reside in proximity and if  the accused is willing to reside elsewhere during the trial.  

This ruling by the Delhi High Court underscores the importance of a balanced approach in  cases involving sexual offenses against children, prioritizing the interests of the victim and  society at large. It sets a precedent for courts across India to carefully evaluate bail  applications in such sensitive cases, ensuring that justice is served while safeguarding the  rights and well-being of child victims.  

Name: Tanvi Bansal  , Semester: 3rd , College: UILS, PU  , As an intern under Legal Vidhiya 


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