Sexual Offences Against Children Involve Moral Turpitude And Delinquency: Bombay HC Rejects Accused’s Application For Probation [Read Judgment]

The Bombay High Court has rejected an application filed by an accused under Section 354 A of the Indian Penal Code and Section 8 of the Protection of Children from Sexual Offences (POCSO) Act.

The accused had filed an application before the Special POCSO Court to call for report of probation officer of the accused under Section 4(1)(2) of the Probation of Offender’s Act, 1958. The said application was rejected by an order dated April 2, 2018.

Justice PD Naik was hearing the application filed by accused challenging the special court’s rejection of his application.

Case Background

According to the prosecution, the accused was working as a field officer at one Apnalaya Sanstha. Free coaching classes for students were conducted at the Sanstha. The accused allegedly molested and outraged the modesty of a young girl who came to study at the Sanstha.

Once the statement of the accused was recorded under Section 313 of CrPC, the trial court recorded that this is not a case of no evidence against athe ccused and he cannot be acquitted in accordance with Section 232 of CrPC and, hence, the accused was called upon to enter on his defence if he so desired.

At this stage, the accused preferred an application before the court and sought directions to call for the report under the provisions of Probation of Offender's Act. The applicant contended that even in a case under the POCSO Act, such a report can be called.

The special court rejected the said application and observed that relief under Section 4 of the Probation of Offender’s Act can be given to the accused when it is expedient to release him for good conduct. However, the court considered the nature of offence and the general effect on society as a result of the presence of an offender like the accused.

Judgment

After examining various judgments, including the Supreme Court’s verdict in Dhananjoy Chatterjee v State of WB and Hussein V Mohammed Saiyed v State of Gujarat, Justice Naik observed:

“If offences against women and those involving moral turpitude or moral delinquency including kidnapping require exemplary treatment, as observed by the Apex Court in the State of M. P. v. Saleem (supra) the offences against children cannot be left far behind, for they too constitute a weaker section of the society. The offences committed by the accused involves moral turpitude or moral delinquency. The accused is educated man over 40 years of age. The accused has committed offences obviously because he has propensity or tendency to commit such offences and facts show that it was committed with due deliberation and there is no reason at all that he will not commit it again.

In my opinion, considering the nature of offences committed by the accused, the accused is not entitled to be released on probation.”

As for the prayer to call for report of the Probation Officer, the court noted:

“In the present case, such report was not warranted and trial Court was not inclined to exercise the powers considering the nature of crime committed by applicant accused. Such powers cannot be exercised randomly in every case.”

Thus, the application was rejected.