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2020 Supreme(Del) 1033

IN THE HIGH COURT OF DELHI AT NEW DELHI
Anup Jairam Bhambhani, J.
Dharmander Singh @ Saheb - Appellant
Versus
State (Govt. Of Nct, Delhi) - Respondent
Bail Application No. 1559 of 2020
Decided On : 22-09-2020

Advocates Appeared:
Vagisha Kochar, Advocate, Neelam Sharma, Advocate

Headnote:(A) Code of Criminal Procedure, 1973 - Section 439 - Protection of Children from Sexual Offences Act, 2012 - Sections 6, 21, and 29 - Bail application rejected - Allegations include making physical relations and intimidation by the applicant towards the complainant, who was a minor at the time of the incidents - The court emphasized the presumption of guilt under Section 29 of the POCSO Act once charges are framed, diverging from the presumption of innocence norm at the pre-charge stage. (Paras 24, 29, 29, 78, 82, 86)

(B) Bail - Provisions for bail under POCSO Act - The court found that prior to charges being framed, the presumption of guilt under the POCSO Act does not apply, thus considering the merits of the application as a normal bail request. (Paras 68, 70, 72, 78, 82)

Facts of the case:
The applicant, accused of statutory rape, was in custody since November 2018, sought bail arguing that the relationship was consensual and investigation was completed; the complainant supported the allegations.

Findings of Court:
The court determined that the presumption of guilt under Section 29 of the POCSO Act applies only once charges are framed, indicating that pre-charge applications should apply regular bail principles.

Issues: The key issues included the interpretation of 'prosecution' in the context of the POCSO Act, the applicability of the presumption of guilt in bail considerations, and whether a consensual relationship existed.

Ratio Decidendi: The court ruled that the statutory provision under POCSO requires that guilt is presumed post-frame of charges, while balancing rights involved in bail applications to reflect on the principles of justice.

Result: Bail application allowed with conditions.

Table of Content
1. factual background related to the alleged offences (Para 1 , 3 , 4 , 5 , 6 , 7 , 8)
2. arguments regarding bail application and contextual assessment (Para 19 , 20 , 21 , 22 , 23 , 24 , 25)
3. court observations on bail principles and pocso act implications (Para 30 , 40)
4. ratio decidendi regarding presumption of guilt under pocso act (Para 34 , 36 , 68 , 72)
5. final order granting bail and conditions (Para 82 , 83 , 84)

JUDGMENT

Anup Jairam Bhambhani, J. - The applicant, who is stated to be about 24 years of age, is an accused in case FIR No. 471/2018 dated 14.10.2018 registered under sections 323/343/363/366A/376/506 IPC read with sections 6/21 of the Protection of Children from Sexual Offences Act 2012 (''POCSO Act'', for short) at PS: Hari Nagar ; and has been in judicial custody since 17.11.2018.

2. By way of the present application under section 439 of the Code of Criminal Procedure, 1973 (''Cr. P.C.'', for short), the applicant seeks regular bail.

3. Briefly, the factual backdrop that has led to filing of the subject FIR is that the applicant and the complainant/prosecutrix became friends through Facebook about 02 years back in 2016, which friendship, it is alleged, culminated in physical intimacy between the two.

4. The FIR recites that the applicant made physical relations with the complainant at his residence and also made a video of the act; whereafter, the allegation goes, the applicant started calling the complainant to his house time-and-again to engage in physical relations. It is further alleged that on 25.04.2018, when the complainant was visiting her village, the applicant called her back threatening that if she did not return, he would share the video made on social media and upload it on the internet. The complainant says that thereupon she boarded the train back from her village on 09.05.2018 and returned to the applicant on 10.05.2018. She further says that the applicant forced the complainant to live with him in a certain house; and when the complainant called her family members to come and meet her, the applicant started pressurising the complainant for marriage.

5. It is further alleged that on 15.05.2018, the applicant married the complainant in his own house in the presence of his mother; and thereafter, forcibly kept the complainant there for about a month-anda-half. Thereafter, the complainant alleges that she called her parents to the applicant''s house and returned with them to her maternal home on 25.06.2018. It is further the complainant''s case that again on 27.06.2018, the applicant threatened the complainant to return to him, whereupon she came back and stayed with him for about 05 days until 03.07.2018, when her mother and aunt came to the applicant''s place and the applicant sent her off.

6. The FIR records other allegations as well, the essence of which is that the applicant threatened the complainant to return to him from timeto-time; and that, when she refused, he uploaded the complainant''s photograph as his display-picture on WhatsApp and threatened to embarrass her.

7. There is also an allegation in the FIR that on 13.10.2018 the applicant took the complainant on his ''scooty''; and thereafter diverted towards a flyover, stopped the ''scooty'' and asked the complainant to disrobe, at which point he also hit her.

8. On these allegations, the FIR was registered on 14.10.2018; whereupon the applicant was arrested on 17.11.2018.

9. Notice in this application was issued on 06.07.2020.

10. Status report dated 21.07.2020 has been filed by the State.

11. Nominal roll dated 21.07.2020 has also been received from the Jail Superintendent.

12. Since the matter concerned an allegation under section 376 IPC read with sections 6/21 of the POCSO Act, intimation under section 439(1A) Cr.P.C. and Delhi High Court Practice Directions dated 24.09.2019 was sent to the complainant; in response to which the complainant appeared along with Investigating Officer/W/S.I. Anil Sharma and was hea

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