New Delhi: The Supreme Court Friday granted bail to an undertrial accused of impregnating a minor under the Protection of Children from Sexual Offences (POCSO) Act, 2012, on the condition that he pays maintenance for his child.
The accused, Sandeep D. Nikam, was arrested six years ago in 2019 in connection with a case concerning the rape of a minor and penetrative sexual assault, under Section 376 of the Indian Penal Code along with Sections 3 and 4 of the POCSO Act, 2012.
However, a bench of Justices Sanjay Karol and Manmohan on 3 January noted that since the petitioner had served five and a half years in prison, he could be granted bail.
“Considering the facts and circumstances of the case and the period of incarceration already undergone by the petitioner, which is five and a half years, we are inclined to grant bail to the petitioner,” it said.
Advocate Javed R. Sheikh, who represented Nikam, described the ruling as “one-of-a-kind” in POCSO cases. “This judgment is one-of-a-kind because it goes a step beyond the usual bail conditions in POCSO cases,” Sheikh told ThePrint. “The bench gave a human touch to the case by asking the accused to pay Rs 7,500 a month to the victim’s mother for child support, indicating that the court went a step ahead to take care of the family unit.”
Explaining that the POCSO victim was now dead and the child was left in a state of complete vagrancy, the lawyer added that “the court saw to it that the trial was fair”.
Sheikh noted that the order was “unusual” for POCSO cases, where bail is usually granted on grounds like availability of the accused for trial.
“The court was mindful of the fact that the accused is an incarcerated workman who has to support his family and sufficient time was given to him so that even after obtaining his freedom, he has sufficient time to take care of his fatherly responsibilities,” he said.
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What was the case
The accused in the case had challenged a June 2022 order of the Bombay High Court rejecting his bail.
The prosecution alleged that in March 2019, the 15-year-old victim’s mother discovered that she had been in a relationship with the accused for the past two years.
They added that when the accused found out about the victim’s pregnancy, he insisted on an abortion. When she refused, the accused told her he couldn’t marry her as she belonged to a lower caste, the victim’s mother alleged.
However, the accused contended that the complainant (the mother) was unaware of their relationship and filed an FIR against him for offences like sexual assault and rape.
Additionally, the mother also accused the man under sections of the Scheduled Castes and Schedule Tribes (Prevention of Atrocities) Act, 1989, and the Protection of Civil Rights Act, 1955, that criminalise acts regarded as atrocities against members of the scheduled castes and tribes, as well as untouchability.
In May 2019, the man was arrested and kept at Yerwada Central Prison in Pune, Maharashtra. After being denied bail by the sessions court and the Bombay HC in 2021 and 2022, respectively, the undertrial moved the top court.
“It is pertinent to note, that the prosecutrix was aged about 14 years, at the relevant time, and the appellant around 25 years and hence, having regard to the prosecutrix’s age, the question of her consent, as contended by the learned Counsel for the appellant, cannot be accepted,” the Bombay HC’s two-judge bench said in its June 2022 ruling.
Refusing to grant bail, the high court said that there was a possibility of the accused tampering with evidence if released on bail.
The victim passed away in July 2022 and an FIR was registered against her subsequent partner, Mahesh Choughule, in connection with offences like murder, causing the disappearance of evidence, kidnapping and abduction.
After noting that the accused was willing to take responsibility for the minor child, the court said he should pay Rs 7,500 per month for the maintenance of the child starting from 1 April 2025.
The court ordered that the money be deposited directly into the bank account of the child’s maternal grandmother.
The court agreed to grant the accused bail taking into account that he had served more than five years in jail. “The petitioner will continue to cooperate in the trial and in the event, the Trial Court or the state finds that the petitioner is delaying the conclusion of the trial, it will be open for them to apprise this Court of the same,” it said.
(Edited by Sugita Katyal)