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2017 Supreme(Del) 411
IN THE HIGH COURT OF DELHI AT NEW DELHI
P.S. TEJI, J.
GULSHAN KUMAR @ GULLI - Petitioner
Versus
STATE (NCT OF DELHI) - Respondent
BAIL APPLN. 125 of 2017
Decided on : 06-02-2017
For the Petitioner:Mr. Akhand Pratap Singh, Meghna Sharma, Advocates
For the Respondent: Mr. Sundershan Joon, Additional Public Prosecutor for the State
The seriousness of the offences, the impact on the victim, and the need for trial to address the issues of fact and law were central to the court's decision.
Headnote:
POCSO Act - Bail Application - Sections 342/354/354-B/354-D/363/34 IPC, Section 8 of the POCSO Act, Section 67-B/67 of the I.T. Act
Fact of the Case:
The petitioner/accused filed for bail under Section 439 of the Code of Criminal Procedure in a case involving charges under various sections of the IPC, POCSO Act, and the I.T. Act. The prosecutrix, a 16-year-old student, was deceived by the accused and taken to a house where she was undressed and photographed. The accused then uploaded the nude photographs on the internet, leading to the registration of the FIR.
Finding of the Court:
The court found the allegations against the accused to be serious, considering the deceitful means used to take the prosecutrix to a house, the attempt to force himself upon her, and the subsequent uploading of her nude photographs, which tarnished her reputation and chastity.
Issues: The key issues revolved around the seriousness of the offences, the evidence against the accused, and the grant of bail in light of the nature of the alleged crimes.
Ratio Decidendi: The court's decision was influenced by the gravity of the offences, the impact on the prosecutrix's reputation and chastity, and the need for a trial to address the issues of fact and law arising in the case.
Final Decision: The court dismissed the bail application, citing the seriousness of the offence and the need for trial court to address the issues of fact and law.
1. The present application has been filed under Section 439 of the Code of Criminal Procedure by the petitioner/accused for the grant of regular bail in FIR No.379/2016, under Sections 342/354/354-B/354-D/363/34 IPC read with Section 8 of the POCSO Act and 67-B/67 of the I.T. Act, Police Station Vasant Kunj North.
2. The facts, emerging from the record, are that the complainant/prosecutrix had made a statement to the police that she was student of class 10th and she was aged 16 years. She had a Facebook ID which the prosecutrix was using for the last about 1½ years. About 6-7 months back, a friend request was received from one Gulli which was accepted by the prosecutrix, and they had been subsequently chatting with each other. One day, Gulli asked the prosecutrix to meet him. When the prosecutrix was coming from her school, Gulli was found waiting in the DESU street along with a boy. Gulli asked the prosecutrix to have a talk with him. Thereafter, those boys took the prosecutrix to a nearby house by deceitful means where Gulli started forcing himself upon the prosecutrix. Gulli undressed the prosecutrix and clicked her photographs. The prosecutrix raised an alarm and managed to get out from there. Due to fear, she could not narrate the incident to anyone but blocked the facebook ID of Gulli. Prior to filing of FIR, Gulli sent the photographs which were clicked by him from the same facebook ID. Thereafter, a friend request was received from one Sonia Singh which was accepted by the prosecutrix. Later on it was revealed that the said ID was not of a girl rather it was of a boy and upon finding this out, the prosecutrix stopped chatting. A phone number was sent on the facebook and prosecutrix was asked to make a call on the said number. The prosecutrix made a call to the said phone number from the mobile phone of her neighbour. A boy was talking from the other side of the phone who did not disclose his name and told the prosecutrix to talk on facebook else her photographs would be uploaded publicly on facebook. Thereafter, ID of Sonia Singh was blocked by the prosecutrix. On 22.07.2016, neighbour Vivek of the prosecutrix informed her that he had been receiving calls on his mobile phone asking for Sonia Singh. When prosecutrix checked her facebook, she found her nude photographs on the facebook ID of Sonia Singh which were clicked by accused Gulshan @ Gulli.
3. On the basis of above statement of the prosecutrix, FIR of the instant case was registered. Accused was arrested and his mobile phone was seized wherein the nude photographs of the prosecutrix were found saved. Statement of the prosecutrix under Section 164 Cr.P.C. was recorded in which she reiterated the allegations made by her in the complaint made to the police. During investigation, the facebook ID of accused was checked and it was found that nude photographs of the prosecutrix were uploaded by him.
4. Arguments advanced by the learned counsel for the petitioner/accused as well as learned Additional Public Prosecutor for the State were heard.
5. Argument advanced by the counsel for the petitioner is that nothing incriminating has come on record against the petitioner. The petitioner is in judicial custody since last about 8 months. There is no evidence to show any link of petitioner with Sonia Singh whose ID was allegedly used to upload the pictures of the prosecutrix. It is further submitted that the prosecutrix in her cross examination admitted that on the date of incident she was at her home. The allegations levelled against the petitioner are false.
6. On the other hand, learned APP for the State has argued that the offence committed by the accused is a serious one. Firstly, the accused took the prosecutrix to a house under deceitful means and then tried to force himself upon the prosecutrix and then he had taken nude photographs of the prosecutrix after undressing her. Thereafter, the nude photographs were uploaded by the accused on the internet which malign
