The legal framework applied by the court focused on the definition of penetrative sexual assault under the POCSO Act and the absence of the need for physical injury to constitute the offense. The court also considered the impact on the victims and the potential for witness tampering in denying bail.

ORDER :

1. This is an application under section 439 of the Code of Criminal Procedure, 1973 (for short “Cr. P.C”).

2. The applicant has been arraigned as an accused in C.R. No.634 of 2021 by Samata Nagar Police Station, Mumbai of the offences punishable under sections 376 (2) (f), (i), (n), 500, 506 of the Indian Penal Code (for short “I.P.C”) and under sections 4,6,8 and 12 of The Protection of Children from Sexual Offences Act, 2012 (for short “POCSO Act”) and also under Sections 43 (a) and 67-A of The Information Technology Act, 2000. After investigation, a charge-sheet has been filed in the Court bearing Special Case No.445 of 2021. The case is pending for framing a charge.

3. A few facts germane for disposal of the application seeking bail can be summarized as follows.

4. This is a peculiar case in which two minor victims aged about 9 and 13 respectively, closely related to the applicant have been sexually exploited and molested by him by betraying the trust. The applicant had also betrayed their trust by administering some stupefying substance as well as showing them pornographic videos and also by snapping the victims nude videos. He extended threats of making the same viral in case the victim discloses his acts.

5. Admittedly, victims’ aunt (their father’s sister) is married to the applicant. Victims used to call the applicant as “Fufa”. Complainant is the victims’ mother. It is an interfaith love marriage between the applicant and his wife, in the sense, the applicant is a Hindu, whereas his wife is a Muslim. Ever since applicant’s marriage with his wife, both families were on visiting terms to their respective homes. The applicant gained trust of the family of the complainant and, therefore, had frequent visits to their house. The victims also used to visit the house of the applicant.

6. Two months before the matter reached the Police Station, the complainant discovered one of her daughters (victim) panicked and scared. Upon inquiry, she realized that whenever the victim had been to the house of the applicant at Kandivali, he used to molest her against her wishes. He used to snap videos and photographs and show pornographic videos on his mobile phone. He used to touch her private parts inappropriately. Whenever the victim used to bleed or had a stomach-ache after sexual exploitation by the applicant, he used to administer some medicines and tablets. The applicant had threatened her not to disclose the said acts to anyone, else, he would make her photos and videos viral.

7. It is alleged that the applicant had sent a link on victim’s mobile phone through a website viz “xhamaster” and upon opening the same, the victim noticed her nude photographs with a caption beneath that ‘those photographs will be sent to others’.

8. The complainant narrated the same to her husband, however, since her father-in-law was not keeping well, in order to keep him away from such happenings, the matter was not immediately reported. However, complainant’s husband warned the applicant not to repeat such acts in respect of his daughters. Complainant’s father-in-law passed away on 17th August, 2021. It is also alleged that the applicant hacked mobile phones of not only the complainant but also the victims, pursuant to which, they received inappropriate and troublesome messages on their mobile phones from the complainant’s mobile phone. On 19th August, 2021, a message was received by the victims purportedly sent from the mobile phone of the complainant (their mother) indicating “my family is chutiya and phupa has done zabardasti has forced himself on the daughter”.

9. On 26th August, 2021, another victim received a message on her school group indicating “sex chat”. When it was clicked, she noticed it as a private chat which had a previous message in the form of threats to make the videos of all the three daughters of the complainant viral. The message reads thus,

“u and ur family is chutiya fuck all of u from phuppa and “do you think I am fucking