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IN THE HIGH COURT OF DELHI AT NEW DELHI
Anoop Kumar Mendiratta, J.
Jagbir – Petitioner
Versus
State (N.C.T. Of Delhi) - Respondent
Bail Appln. 111 of 2022
Decided On : 22-07-2022
Criminal Procedure Code, 1973 - Section 439 - POCSO Act - Sections 4/6 - Indian Penal Code, 1860 - Sections 363/366/376 - Kidnapped and Rape – Seeking Bail - Case of prosecution, that on statement of mother of victim, wherein she alleged that some unknown person had kidnapped her daughter namely ‘N’, aged about 15 years - Victim was reportedly missing since 09/07/2019 - Investigation was transferred to AHTU/Crime Branch - Petitioner/accused during course of investigation misled the investigating agency by suppressing whereabouts of victim - Even polygraph test of all 07 suspects was got conducted in view of orders of Hon’ble High Court of Delhi in Writ Petition - There is no evidence suggesting that victim had consented to be taken from her parents’ lawful custody. Rather, petitioner/accused misled entire prosecuting agency including the parents of victim having committed offence. (Para 13)
Finding of the court :
Since victim was minor at the time of occurrence, even the claim that sexual intercourse was with her consent, is immaterial as circumstances clearly point out that the minor had been enticed and lured with an intention to have the intercourse. Even the minor girl’s infatuation with alleged kidnapper cannot be permitted as a valid defence as it would amount to undermining the essence of legislative intent under Section 361 of IPC. - Petitioner that age of victim has not been correctly assessed by investigating agency can be duly considered at stage of trial - Authorities cited by learned counsel for petitioner are distinguishable on facts as in most of cases relied by counsel for petitioner, difference of age between victim and petitioner was less, and age of victims happened to be largely just below age of majority (i.e. 18 years). Also, in view of principles of law as laid down in Independent Thought vs. Union of India (supra) and Jayanti Lal Dabgar vs. State of Gujarat (supra), petitioner does not deserve discretion of bail - Nothing stated hereinabove shall tantamount to expression of opinion on merits of case - A copy of this order be forwarded to Jail Superintendent and learned Trial Court for information.
Result : Petition is dismissed.
ORDER :
Anoop Kumar Mendiratta, J.
1. Petition under Section 439 Cr.P.C. has been preferred on behalf of the petitioner in FIR No.226/2019, under Sections 363/366/376 I.P.C. and Sections 4/6 of POCSO Act registered at Police Station: Mayur Vihar, Delhi.
2. In brief, as per the case of the prosecution, the aforesaid FIR was registered at Police Station Mayur Vihar on statement of ‘Mrs.R’, mother of the victim, wherein she alleged that some unknown person had kidnapped her daughter namely ‘N’, aged about 15 years. The victim was reportedly missing since 09/07/2019.
A Habeas Corpus application was further filed vide Writ Petition No.3453/2019 on behalf of the complainant after the registration of aforesaid FIR No.226/2019, under Sections 363/366/376 I.P.C. and Sections 4/6 of POCSO Act registered at Police Station: Mayur Vihar, Delhi. The investigation was transferred to AHTU/Crime Branch. The petitioner/accused during course of investigation misled the investigating agency by suppressing the whereabouts of the victim. Even the polygraph test of all the 07 suspects was got conducted in view of orders of the Hon’ble High Court of Delhi in Writ Petition No.3453/2019.
3. Finally, on the basis of mobile technical surveillance and CDR location, victim was eventually recovered on 05.10.2021 along with her 8 month old female child from the house of petitioner/accused. The UPT of the victim is also stated to have been found positive and she was about 1½ months pregnant.
4. It is further the case of prosecution that victim was persuaded and kidnapped by petitioner/accused Jagbir, aged about 27 years, when victim was waiting for her boyfriend Shahid @ Rahul at Chilla Village, Mayur Vihar, Delhi. The said Shahid @ Rahul used to reside on rent in a house at Chilla Village, where Jagbir worked as its caretaker. Petitioner further lured the victim and allegedly married her in a temple at Delhi.
5. Learned counsel for the petitioner submits that petitioner is in custody since 06.10.2021 and the relation between the parties was voluntary. It is urged that the age of the victim has not been verified in accordance with law and the victim/wife of the petitioner is suffering on account of incarceration of the petitioner. It is further urged that petitioner is required to look after the victim as well as the minor children. Reliance is further placed upon ‘Chaman vs. State of NCT of Delhi’ in BAIL APPLN.404/2022 decided on 03.03.2022, ‘Roshan vs. State Govt. of NCT of Delhi & Ors.’ in BAIL APPLN.2108/2020 decided on 27.11.2020, ‘Sanjeev Kumar Mehra vs. State & Ors.’ in W.P.(CRL)2441/2019 decided on 05.11.2019, ‘Monu vs. State’ in BAIL APPLN.2146/2014 decided on 03.11.2014, ‘Vishal @ Ravi vs. State Govt. NCT of Delhi’ in BAIL APPLN.2735/2021 decided on 12.10.2021, ‘Kundan & Anr. Vs. State & Ors.’ in CRL.M.C.27/2022 decided on 21.02.2022, ABC 2016 (I) 34 BOM ‘Sunil Mahadev Patil vs. State of Maharashtra’, 283 (2021) Delhi Law Times 321 ‘Praduman vs. State (Govt. of NCT of Delhi) & Anr.’, 283 (2021) Delhi Law Times 329 ‘ABP Network Private Limited vs. Malika Malhotra’, 275 (2020) Delhi Law Times 49 ‘Dharmander Singh @ Saheb vs. State (Govt. of NCT, Delhi)’ and 2022 LawSuit(All) 117 ‘Atul Mishra vs. State of UP and 3 Others’.
6. It may also be noticed that victim does not oppose the application for grant of bail.
7. On the other hand, learned APP for the State vehemently opposes the bail application and submits that victim was merely 14 years and 06 months of age, at the time she was lured and kidnapped by the petitioner. It is urged that entire machinery was kept in the dark by the petitioner who deliberately concealed the particulars of the victim and led the investigating agency on the wrong path despite filing of the Habeas Corpus petition by the mother of the victim.
8. It is further submitted that the victim was studying in 9th Class at the time of missing and as per her last attended school documents, the Date of Birth is 05.01.2005 and she was only 14 year
Point of law : Rape offence - Even if the minor girl gives 'no objection' to release the accused in an heinous crime like rape on a minor girl and granting bail to the accused is nothing but giving l....
Bail – Courts have favoured release of young offenders on bail pending trial so that regressive influences of jail environment can be avoided and keeping in mind principle of best interest.
Kidnapping and rape of girl child – Children are deemed to be incapable of consent and consent is no defence to offences punishable under POCSO Act.
A minor's consent is not valid for sexual intercourse, and the age of consent for sexual intercourse is definitively 18 years.
Plea of innocence in his statement under Section 313 CrPC, in the absence of any evidence, cannot be relied on.
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