Suresh Tirkey v. The State

IN THE HIGH COURT AT CALCUTTA

[ CIRCUIT BENCH AT PORT BLAIR ] ...

CRA/8/2021 With CRM/9/2021 Suresh Tirkey ... Petitioner Vs.

The State ... Respondent Mr. Gopala Binnu Kumar ... for the petitioner Ms. A.S. Zinu ... for the respondent April 20, 2022 [GNC] Item No.1 & 2 In Re:

CRM/9/2021:

Learned Advocate for the State and learned Advocate for the petitioner are present.

The application under Section 389(2) of the Code of Criminal Procedure being CRM/9/2021 is moved by learned Advocate for the petitioner praying for bail on any condition as may be deem fit and proper.

Learned advocate appearing for the petitioner drew our attention to the charge framed by the Trial Court against the convict as well as the evidence of the prosecutrix, the Doctor and the Investigating Officer. It is submitted that though charge has been framed under Section 5(1) and 6 of the POCSO Act, 2012 the accused person has been convicted only under Section 376 of the Indian Penal Code as at the relevant time the prosecutrix had crossed the age of 18 and she was not covered by the definition of 'child' under Section 2(d) of the POCSO Act.

It is further submitted that the prosecutrix was a major and there was a consenting relationship between the convict and the prosecutrix. Therefore, the judgment which has been appealed against is not sustainable. Therefore, learned Advocate prayed for bail of the convict on any condition and also for suspension of the sentence during pendency of appeal.

Learned advocate for the State raises strong objection and submitted that the prosecutrix was misled into such relationship since she was a minor. We have considered the submissions made by learned Advocates for both parties as well as the material in the record and the evidence adduced by the prosecution.

There is prima facie substance in the arguments placed by learned Advocate for the petitioner. Under such circumstances, the prayer for bail is allowed.

The convict-Suresh Tirkey may find bail of Rs.10,000/- with two sureties of Rs.5000/- each, one of which should be a local surety to the satisfaction of the learned Judge, Special Court under POCSO Act, Mayabunder on further condition that the convict/petitioner shall not leave the locality under his police station without prior permission of the court and he shall also report to the local police station once a month during the pendency of the appeal. Learned Advocate for

the State shall take this matter into account and see that there is compliance of this Court's order.

In the meantime, the sentence passed in POCSO Case No.3 of 2021 shall remain suspended as per the provisions under Section 389(1) of the Cr.P.C. CRM/9/2021 is disposed of.

Let a copy of this order be communicated to the learned Judge, Special Court under the POCSO Act, Mayabunder forthwith.

In Re:

CRA/8/2021:

Let the appeal be placed for hearing before the next available Circuit.

( Shampa Sarkar, J. ) ( Ananda Kumar Mukherjee, J. )