Point of Law: Bail Application - Offence of sexual assault - Mere non-filing of charge sheet cannot be a ground for rejection of the bail, especially when no evidence has been brought on record to keep accused behind bars.

JUDGMENT :

1. The present petition has been preferred by the petitioner seeking bail in FIR No. 134/2021, under Sections 323/341/354 IPC & Section 8 of Prevention of Children from Sexual Offence Act, 2012 (‘POCSO Act’), registered at police station Prem Nagar, Delhi.

2. Mr. Govinda Ramanan, learned counsel appearing for petitioner submitted that the petitioner has been falsely implicated in this case and was arrested from his house on 05.03.2021 without any cause and reason and since then he is in judicial custody. Further submitted that a bare perusal of FIR itself reveals that petitioner has been taken into custody by the Police solely on the figment of imagination of the complainant and neither it is the case of complainant nor of the prosecution that petitioner had tried to touch private parts of prosecutrix or any body part with a sexual intent. Learned counsel next submitted that there is no evidence whatsoever to prove, that the petitioner had committed sexual assault on the complainant much less any other offences punishable under the India Penal Code (IPC).

3. Learned counsel further submitted that the learned Sessions Judge while passing impugned order dated 31.03.2021 has completely ignored the law laid down by the Hon’ble Supreme Court in various judgments that mere non-filing of charge sheet cannot be a ground for rejection of the bail, especially when no evidence has been brought on record to keep the accused behind bars.

4. Lastly, learned counsel submitted that petitioner is innocent and has been languishing in jail for the offence which he has not committed and, therefore, this petition deserves to be allowed.

5. On the other hand, Mr. Sanjeev Sabharwal, learned Additional Public Prosecutor for State submitted that the FIR in question was registered on the complaint of prosecutrix, wherein serious allegations have been made against the petitioner and, hence, this petition deserves to be dismissed. Learned Additional Public Prosecutor drew attention of this Court to the provisions of Section 8 of POCSO Act to submit that whoever, commits sexual assault, shall be punished with imprisonment of either description for a term which shall not be less than three years, but which may extend to five years and shall also be liable to fine.

6. Learned Additional Public Prosecutor further submitted that the complainant in her statement recorded under Section 164 Cr.P.C. has supported the version put forth in her complaint and so, petitioner does not deserve any leniency and this petition deserves to be dismissed.

7. Mr. Shreyans Raniwala, Advocate entered appearance on behalf of the complainant/ prosecutrix and supported the submissions advanced by the learned Additional Public Prosecutor and submitted that keeping in view the serious allegations against the petitioner, the present petition is liable to be dismissed.

8. The recital of FIR in question is that complainant, aged around 15 years, alleged that on 05.03.2021 while she was going to school with her friend, an unknown boy blocked their way and hold her hand and when she tried to free herself and could not succeed, her friend pushed the said boy and rescued her. Thereafter both the girls reached a nearby grocery shop and narrated the story to a lady sitting in the shop, who raised a voice and the public around caught hold that boy and started beating him, however, the boy managed to escape from the spot. The public around disclosed the name of boy as Pankaj Kumar. A PCR call was also made in this regard but when SI Gagandeep reached at the spot, the complainant/prosecutrix had already left the place.

9. Upon reaching home, prosecutrix told her parents about the incident, who took her to the police station and registered a complaint. In the police station SI Gagandeep, who had visited the spot of incident, met the complainant and recorded her statement and FIR in question was registered for the offences under Sections 323/341/354 IPC & Section 8 of POCSO Act.

10. During invest