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IN THE HIGH COURT OF DELHI AT NEW DELHI
Subramonium Prasad, J.
Rakesh Haldar - Appellant
Versus
State Govt Of NCT Delhi - Respondent
Bail Application No. 776 of 2021
Decided On : 25-03-2021
Bail - Offences against Minor - IPC 363, 376, 366, 328, 120B and POCSO Act - Section 6 - [363, 376, 366, 328, 120B IPC, Section 6 POCSO Act] - The court dismissed the bail application considering the gravity of the offences, the possibility of the accused pressurizing the victim, and tampering with evidence. However, directed the Trial Court to proceed with the case and examine the victim within six months if charges are framed against the petitioner.
Fact of the Case:
The victim, a minor, was allegedly kidnapped, confined, and raped by the petitioner for over a month. The victim's statement and medical examination supported the allegations.
Finding of the Court:
The court found that due to the gravity of the offences and the possibility of the accused pressurizing the victim and tampering with evidence, bail was not granted. However, the Trial Court was directed to proceed with the case and examine the victim within six months if charges are framed against the petitioner.
Issues: The issues revolved around the gravity of the offences, the credibility of the victim's statement, and the possibility of the accused pressurizing the victim and tampering with evidence.
Ratio Decidendi: The court's decision was influenced by the gravity of the offences, the victim's statement, and the possibility of the accused tampering with evidence, leading to the dismissal of the bail application.
Final Decision: The bail application was dismissed, but the Trial Court was directed to proceed with the case and examine the victim within six months if charges are framed against the petitioner.
JUDGMENT
Subramonium Prasad, J. - This application under Section 439 Cr.P.C. is for grant of regular bail in FIR No.358/2019 dated 13.09.2019, registered at Police Station Kanjhawala, Delhi for offences punishable under Sections 363, 376, 366, 328 and 120B IPC and Section 6 of the POCSO Act.
2. On 13.09.2019, the mother of the victim registered a complaint with the Police Station Kanjhawal stating that her daughter, about seven years of age, who is studying in Government Middle School for Girls, B Block, JJ Colony, Sawada, Delhi, left home for school at about 7:30 AM on 26.08.2019 and has not returned back home. It is stated in the FIR that the victim had refused to go to the school. After being scolded she left for school. It is stated in the FIR that the complainant went in search of her daughter but she could not locate her. In the FIR it is stated that she doubts that a lady named Sikha has kept her daughter.
3. On the complaint, FIR No.358/2019 dated 13.09.2019, was registered at Police Station Kanjhawala, Delhi for offence punishable under Section 363 IPC.
4. On 03.10.2019, the complainant/mother along with the victim came to the Police Station and the complainant stated that her girl/victim had come back home safely. It was stated by the complainant that her daughter had told her that she was staying with her friend, one Nisha, at her house in Shashtri Nagar. She also stated that no untoward incident has happened to her daughter and she does not want her daughter to undergo any medical test. She stated that since her daughter has come back safe she does not want to pursue the matter further.
5. The statement of the victim was also recorded wherein she stated that on 26.08.2019, she left her house and went to her friend, Nisha's house at Shashtri Nagar, Gali No.14.
6. The material on record shows that counselling of the victim was done by an NGO and the victim was sent to Sanjay Gandhi Memorial Hospital, where the victim was medically examined by Doctor vide MLC No.168/1220/19. The doctor in the MLC has stated that that there is a history of being abducted by the victim's friend's mother, Sikha, who later forced her to get married to her brother, Rakesh/petitioner herein. The MLC also records that her friend Nisha's mother, Sikha, forced her to sleep in the petitioner's room where she has been raped for a period of one month. The MLC also states that the victim has given a history that the last intercourse took place on the morning of 27.09.2019 after which she escaped. The MLC records that the victim called her brother after escaping from her friend's house and her brother and mother came and rescued her. The MLC also records that the victim has attained her periods on the day the MLC was conducted.
7. The statement of the victim was recorded under Section 161 Cr.P.C wherein the victim stated that on 26.08.2019, at about 2:00 PM when she was standing outside her school, her friend Sonia, who stays at B-Block came to her and the victim accompanied her friend to Lakshmi Nagar Metro Station. She states that Sonia went away with a boy. She states that she did not have any money. She got a phone from some person and she gave a call to her friend Nisha who stays at Lakshmi Nagar, Gali No.7 and asked her to come to Lakshmi Nagar Metro Station. It is stated that after some time Nisha came to Lakshmi Nagar Metro Station and took the victim to her home. It is stated that the victim stayed there for two days. It is stated that on the third day Nisha's mother Shikha came there and asked the victim to marry her brother, the petitioner herein. It is stated that on the same day the petitioner came there and the petitioner and Sikha prevented the victim from going back to her house and she was forcefully married to the petitioner. The victim has stated that the petitioner, her friend Nisha, Nisha's mother Shikha and a Pandit were present there at the time of her marriage. She was then sent to the house of the petitioner which is on the third
The gravity of the offences, the credibility of the victim's statement, and the possibility of the accused pressurizing the victim and tampering with evidence are crucial factors in determining bail ....
The willingness of the victim in the marriage and the impact of the petitioner's custody on the victim and their children were crucial in the court's decision to grant bail.
The court determined that a bail application can be granted when the victim confirms consensual cohabitation with the accused, and further detention is not in the best interest of the family.
The consensual nature of the relationship, the age of the accused and the prosecutrix, and discrepancies in the statements given at different times are crucial factors in considering bail under POCSO....
The court emphasized that the protection of minors is paramount and serious allegations of sexual offenses necessitate strict scrutiny against granting bail to accused, considering the trauma inflict....
Bail – Court should be circumspect in granting bail in POCSO cases.
The absence of evidence implicating the accused and unexplained delay in FIR lodging justified the granting of bail.
The gravity of the allegations and the impact of pandemic conditions on trial delays influenced the court's decision to dismiss the bail application.
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