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DELHI HIGH COURT
Subramonium Prasad, J.
Praduman – Petitioner
versus
The State (Govt. of NCT of Delhi) and Anr. – Respondents
Bail Appl.N.2380 of 2021
Decided on 5.10.2021
Criminal Procedure Code, 1973 – Section 439 – Bail application – FIR registered for offences under Sections 376, 313, 328, 506 IPC read with Section 6 POCSO Act – Alleged rape leading to pregnancy – Statement of prosecutrix under Section 164 Cr.P.C. was recorded wherein she does not name petitioner – Prosecutrix has stated that she has no objection to grant of bail – Prosecutrix and petitioner are more or less of same age and photographs which have been filed clearly show that prosecutrix and petitioner were in a relationship – When prosecutrix who was complaining of vomiting and who was taken to hospital and in hospital it was revealed that she was pregnant and MLC and it gives to corroboration to fact that the prosecutrix was not subjected to any forcible rape – Court cannot overlook fact that petitioner is now only 21 having a complete life ahead of him – Court also cannot overrule their friendship as both of them were students of same school – Consensual sex has been in legal grey area because consent given by minor cannot be said to be a valid consent in eyes of law – What has become a trite and unfortunate practice is that Police are filing POCSO cases at behest of family of a girl who object to her friendship and romantic involvement with a young boy – Petitioner has been in jail for over 12 months and is being subjected to be in company of hardened criminals – This would do more harm than good to a common man of 21 years of age – Bail granted. (Paras 19, 20, 21, 22, 27 and 29)
Result: Bail Application allowed.
JUDGMENT
Subramonium Prasad, J.—The present bail application is filed under Section 439 of Code of Criminal Procedure in FIR No. 802 of 2020 filed at PS Nihal Vihar for offences under 376, 313, 328, 506 IPC read with Section 6 POCSO Act filed on 04.08.2020.
2. The facts as per the FIR are that the complainant filed a complaint stating that she is 16 years of age, a student of 12th Standard and lives along with her parents and two elder brothers. She stated that in January 2020 the Petitioner stalked her while she would go to school and he had expressed his intention to make friends with her but she resisted.
3. The FIR states that during the national lockdown stoked by COVID-19, on 20.06.2020 she went to borrow a school book from her friend and when was returning she was stopped by the Petitioner who held her hand and asked her why she was showing an attitude towards him. It is stated that the Petitioner forcefully took her to the ground floor of his house and gave a cold drink and chips to her after which she became unconscious and fainted and when she woke up it is stated found herself on the bed of the Petitioner with her private parts paining and the bed wet. It is stated that she broke down and told the Petitioner that he had wronged her for nothing to which the Petitioner retorted that you have a big attitude and now I have broken it. It is stated further that the complainant due to fear of reprisal from her family did not disclose this happening to them.
4. The FIR states that from 30.07.2020 the complainant was having continuous spells of vomiting and she was taken the doctor where despite medication the vomiting didn’t stop and on her revisiting the doctor on 03.08.2020 and ultrasound of the complainant was done and it was discovered that she was Pregnant by 7-8 weeks. After registration of the FIR, the accused was arrested. Statement of the prosecutrix under Section 164 CrPC has been recorded before the learned Metropolitan Magistrate, Tis Hazari Courts.
5. In the statement under Section 164 CrPC statement the prosecutrix stated that she was being followed by the Petitioner, he would try and talk to her but she would not show interest. The Section 164 CrPC statement further stated on returning from her friend’s house she was stopped by the Petitioner and was given laced cold drink after taking her to his house which rendered her unconscious after which the Petitioner raped her. She stated that she was dejected and confronted him thereafter asking him why he did this. She further stated that due to shame and fear she did not tell her family what had transpired with her. She stated that she had gotten pregnant and was admitted to Bhagwan Mahavir Hospital and Medical Termination of Pregnancy was done on 7.8.2020 after informing the Police, filing an FIR and completing the legal formalities and obtaining consent of her parents/brothers.
6. During the course of investigation, it was stated by the complainant to the sub-Inspector that she does not want to be involved in the case or continue the case against her friend a.k.a Petitioner herein. Section 161 CrPC statements of the complainant’s family members were recorded. The Chargesheet shows that the complainant’s date of birth as per her school records in 25.08.2003 i.e. 17 years at the time. It also states that from the investigation done there is ample evidence, testimony, MLC of the victim and proof of her minority at the time the incident occurred.
7. Investigation is complete and the charge sheet stands filed. The Petitioner approached this Court for granting regular bail. After hearing some arguments, this Court vide order dated 23.11.2020 allowed the Petitioner to withdraw his bail application with liberty to apply for bail at an appropriate stage.
8. The Petitioner approached the Special Court, (FSTC) (POCSO) applying for Bail. The Court denied to enlarge the Petitioner on bail vide order dated 01.07.2021. The Court recorded the Complainant’s stance of no
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