Anita Kachhap @ Anita Devi @ Anita aged 37 years Wife of Prem Prakash v. The State of Jharkhand
Case Details
1 IN THE HIGH COURT OF JHARKHAND AT RANCHI Criminal Appeal (D.B.) No. 949 of 2023 ----- Anita Kachhap @ Anita Devi @ Anita aged 37 years Wife of Prem Prakash Horo Resident of Village –Lamboi, P. O. & P. S.- Jaldega, District- Simdega, At present R/o Tupudana, Kuthetoli, P.O. & P. S. –Tupudana, District- Ranchi … … Appellant Versus The State of Jharkhand … … Respondent ------- CORAM:HON’BLE MR. JUSTICE SUJIT NARAYAN PRASAD HON’BLE MR. JUSTICE SANJAY PRASAD ------- For the Appellant For the Respondent : Mr. Abhay Kr. Chaturvedy, Advocate : Mr. Arup Kumar Dey, A.P.P. Order No. 05/Dated 7th February, 2024 ------ 1. The instant appeal under section 21(4) of the National Investigation Agency Act, 2008 has been directed against the order dated 25.05.2023 passed by the learned Special Judge POCSO, Gumla in B. P. No. 495 of 2023 whereby and whereunder the prayer for regular bail of the appellant in connection with Palkot P.S. Case No. 78 of 2022 corresponding to POCSO Case No. 13 of 2023 registered for the offence under Sections 370/363/354 of the Indian Penal Code and Section 8 of the POCSO Act, has been rejected. 2. Learned counsel appearing for the appellant has submitted that it is a case where the appellant has falsely been implicated merely on the ground that she, in order to give financial aid to the family of the victim by providing a job, has carried the victim to the house of one Apurva Chatterjee where she was engaged. Subsequent thereto, the allegation in
Facts
the instant FIR has been levelled on the basis of the allegation 2 that the mother of victim has made the complaint that she could not get the money, based upon that FIR was instituted. 3. The submission has been made that statement of the victim has been recorded under Section 161 of the Cr.P.C where the victim has disclosed that save and except the cloth, no money was given to her by Apurva Chatterjee and her husband. 4. The submission has also been made that since there is no ingredient of Section 8 of the POCSO Act so as the ingredients of Sections 370 and 354 of the Indian Penal Code as there is no allurement or exploitation of the victim by the appellant. 5. Further, there is no ingredient of Section 8 of the POCSO Act, since, although the reference of sexual assault has also been made, but as per the definition of sexual assault as referred in Section 7 of the POCSO Act, there is no reference of touching the part which has been referred therein, rather, only disclosure is that the husband of said Apurva Chatterjee namely Shiv Shankar Chatterjee has touched the hand of the victim with bad intention. 6. The submission has also been made that the said Apurva Chatterjee @ Purba Chatterjee has already been granted anticipatory bail by the Division Bench of this Court vide order dated 19.07.2023 passed in Cr. Appeal (DB) No. 357 of 2023, while her husband namely Shiv Shankar Chatterjee @ Shib Shankar Chatterjee was granted 3 anticipatory bail by the learned Single Judge in A. B. A. No. 1734 of 2023 vide order dated 13.06.2023. 7. Based on the aforesaid grounds, learned counsel for the appellant has submitted that the impugned order may be interfered with so that the appellant may come from judicial custody. 8. While on the other hand, learned Additional Public
Legal Reasoning
Penal Code is concerned, we are of the prima facie view based upon the material surfaced in course of investigation so far as the appellant is concerned that there is no ingredient of Section 363 of the Indian Penal Code since it has not been alleged that the victim has been subjected to kidnapping from lawful guardian. Likewise, the ingredient of Section 354 of the Indian Penal Code is also prima facie does not appear to exist against the appeal. 15. The allegation is also under Section 8 of the POCSO Act. Section 8 of the POCSO Act speaks about the offence, if the victim, who is minor, subjected to sexual assault. The sexual assault has been defined under Section 7 of the POCSO Act wherein the following description has been given, for ready reference, Section 7 of the POCSO Act is being referred herein:- “Section- 7:- Whoever, with sexual intent touches the vagina, penis, anus or breast of the child or makes the child touch the vagina, penis, anus or breast of such person or any other person, or does any other act with sexual intent which 5 involves physical contact without penetration is said to commit sexual assault.” 16. Now coming to the part of the allegation as per the material collected during the course of investigation, it has come that the co-accused Shiv Shankar Chatterjee @ Shib Shankar Chatterjee, who happens to be the husband of the Apurva Chatterjee @ Purba Chatterjee in whose house the victim was carried by the appellant to perform the routine work as a maid, has touched the hand of the victim and as such, there is no allegation of commission of offence under the POCSO Act is made out against the appellant. More so there is no ingredient of under Section 8 of the POCSO Act as per the definition of sexual assault as referred in Section 7 of the POCSO Act. 17. Further, the co-accused namely, Apurva Chatterjee @ Purba Chatterjee, in whose house the victim was carried by this appellant to carry the routine work as maid, has already been granted the benefit of pre-arrest bail by the Division Bench of this Court vide order dated 19.07.2023 passed in Cr. Appeal (DB) No. 357 of 2023, while her husband namely Shiv Shankar Chatterjee @ Shib Shankar Chatterjee was granted anticipatory bail by the learned Single Judge in A. B. A. No. 1734 of 2023 vide order dated 13.06.2023. 18. This Court taking into consideration the aforesaid fact, is of the view that the impugned order needs to be interfered with. 6 19. Accordingly, the order dated 25.05.2023 passed by the learned Special Judge POCSO, Gumla in B. P. No. 495 of 2023 in connection with Palkot P.S. Case No. 78 of 2022 corresponding to POCSO Case No. 13 of 2023, is hereby quashed and set aside. 20. 21. In view thereof, the instant appeal stands allowed. In consequence thereof, the appellant, above named, is directed to be released on bail on furnishing bail bond of Rs.10,000/- (Rupees Ten Thousand) with two sureties of the like amount each to the satisfaction of the learned Special Judge POCSO, Gumla in connection with Palkot P.S. Case No. 78 of 2022 corresponding to POCSO Case No. 13 of 2023 subject to the condition that the appellant will cooperate in the trial and shall appear on each and every date before the learned trial court, failing which, the learned trial court is at liberty to take appropriate course in accordance with law and subject to further condition that one of the bailors should be near relative of the appellant. (Sujit Narayan Prasad, J.) (Sanjay Prasad, J.) Kamlesh/
Arguments
Prosecutor appearing on behalf of the State of Jharkhand has vehemently opposed the prayer for bail. 9. It has been contended by referring to the findings recorded by the learned Court in the impugned order as also the material which has been surfaced in course of investigation, as recorded in the case diary, that the allegation against the appellant is serious in nature. 10. In the aforesaid premise, learned Additional Public Prosecutor has submitted that the impugned order may not be interfered with. 11. This Court has heard learned counsel for the parties, gone across the finding recorded by the learned Court in the impugned order as also the case diary, which has been called for by this Court vide order dated 09.01.2024. 12. The allegation against the appellant is that she has committed offences under Sections 370/363/354 of the Indian Penal Code and Section 8 of the POCSO Act. 13. We, on appreciation of the Sections under which the criminal case has been instituted i.e. under Sections 370/363/354 of the Indian Penal Code and Section 8 of the 4 POCSO Act, prima facie found that there is no ingredient either of Section 363 of the Indian Penal Code or Section 370 of the Indian Penal Code due to the reason that there is no allegation of any allurement or inducement as has been meted out by the appellant upon the victim, so that it is said that Section 370 of the Indian Penal Code. 14. So far as the allegation of Section 363 of the Indian