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DELHI HIGH COURT
Subramonium Prasad, J.
Suraj and Anr. – Petitioners
Versus
State and Anr. – Respondents
Bail Appln.2542 of 2021
Decided on 10.12.2021
Criminal Procedure Code, 1973 – Section 439 – Bail application – FIR registered under Sections 376, 376-D, 506 and 34 IPC read with Section 6 of POCSO Act – Purpose of POCSO Act is to treat minors as a class by itself and to treat them separately so that an attempt to sexual assault or harass or molest or abuse minor entails graver and stricter consequences – Ultimate purpose of this law is paramount well-being of child and to protect minors from flagrant violence inflicted on them – Prosecutrix was a minor when she was first assaulted by accused – It is allegation of prosecutrix that a video had been shot and prosecutrix was constantly threatened that if she did not agree with demands of accused, video would be circulated – Prosecutrix was a minor when she was first assaulted by accused – It is allegation of prosecutrix that a video had been shot and prosecutrix was constantly threatened that if she did not agree with demands of accused, video would be circulated – Rape is an offence which not only violates physical body of survivor, but is also capable of inflicting trauma on mental psyche which can end up persisting for years – Prosecutrix has been consistently traumatised since she was 13 years of age till she attained 16 years of age – Prosecutrix became pregnant also – Charges have been framed against all accused, including petitioners herein, for offences under Sections 376(2), 376(D), 506(ii) read with Section 34 IPC and Section 6 of the POCSO Act – Court not inclined to grant bail to petitioners till examination of prosecutrix – Bail Applications dismissed. (Paras 8, 11, 13, 14, 15, 16 and 19)
Result: Bail Applications dismissed.
JUDGMENT
Subramonium Prasad, J.—The present applications have been filed with a prayer for grant of regular bail to the petitioners in FIR No.427/2018 registered at Police Station Mehrauli under Sections 376, 376-D, 506 and 34 IPC read with Section 6 of the POCSO Act.
2. The facts leading to the registration of the present FIR are as follows:—
(i) The complainant/prosecutrix states that she is a 17 year old girl studying in 9th Standard and that she was residing with her mother who was working as a house maid.
(ii) It is stated that the prosecutrix met accused Suraj in 5th Standard through the Petitioner Lal Mohammed and his sister-in-law/Hasina Khatoon. It is stated that they developed a friendship and he used to take her for walks. The FIR further states that mutual friendship developed. It is stated that 2-3 months into their friendship, Suraj took her to Inderpuri forest post school hours and raped her.
(iii) It is stated that Suraj took explicit videos of the prosecutrix and then compelled her to come to the forest again where after raping the prosecutrix, the friends of Suraj, namely, Rohit, Sachin, Anurag, Atul @ Lal Mohammad arrived at the spot.
(iv) It is stated that they blackmailed the prosecutrix by showing her explicit videos of herself and threatened to circulate and upload them on the internet if she did not have intercourse with all of them.
(v) It is stated that this began a continuous sequence of exploitation of the prosecutrix and that all the five persons mentioned in the FIR, including the petitioner herein, ravaged her after blackmailing her.
(vi) It is stated that despite resistance shown by the prosecutrix to meet Suraj, he would send letters through children and demanded to meet her. Further, when the prosecutrix resisted meeting him, he sent letters where he would threaten the prosecutrix with horrific consequences, namely that he would upload her videos and would kidnap her younger sister.
(vii) It is stated that in March 2018, the prosecutrix missed her menstrual cycle and realized that something was amiss. It is stated that she gathered strength from her peers at school and informed her mother of these events of collective exploitation. Accordingly, the present FIR was lodged.
(viii) The prosecutrix was thereafter sent to AIIMS hospital for a complete medical examination and medical counselling was done for the victim.
(ix) After the relevant examination was done, it was found that the prosecutrix had been impregnated and permission was sought for the medical termination of her pregnancy. It was done on 14.07.2018 after obtaining court orders.
(x) The Section 164 CrPC statement was recorded before the learned Metropolitan Magistrate, Saket Courts on 18.07.2018. The statement under Section 164 CrPC matches with Section 161 CrPC statement of the prosecutrix and from the contents of the FIR and there is no discrepancy in any of the above statements.
(xi) The Petitioners were arrested on 10.07.2018. During investigation, the mobile phones of all the accused persons were seized by the Police, their call records were analysed and were sent for FSL examination. It was also found that the age of the prosecutrix at the time of registering the FIR was 17 years which had been verified via her school records. Chargesheet was filed on 18.09.2018 and charges have been framed.
(xii) The petitioners’ application for regular bail was dismissed vide order dated 03.05.2021 by the learned Trial Court stating that the role of the petitioner has been clearly defined and the accusation has been specifically attributed to the petitioner, given that with the severity of the offence and the duration of continuous exploitation, enlarging the petitioner on bail at this stage would not be prudent. The statement of the victim was yet to be recorded in trial, therefore, bail could not be granted.
3. Heard Mr. Rajpal Kasana, learned counsel for the Petitioner, in Bail Appln. 2542/2021, Mr. Amit Kumar, le
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