The judgment establishes the importance of considering statutory provisions, amendments, and the sensitivity required in cases involving allegations against a minor victim, while also acknowledging the possibility of false allegations.

JUDGMENT

Anoop Kumar Mendiratta, J. - Petitioner has preferred an application under section 438 Cr.P.C. read with Section 482/483 Cr.P.C. for grant of anticipatory bail in FIR No. 619/2021 dated 24.12.2021, under Section 377 IPC and Section 6 of POCSO Act registered at P.S. Janakpuri, New Delhi. During the course of investigation, Section 376AB IPC has also been invoked in the proceedings.

2. In brief, as per the case of the prosecution, on 23.12.2021, PCR call vide DD no. 67A was received at PS Janakpuri, New Delhi wherein it was recorded 'caller lady ke husband aur saas maarpeet kar rahe hain aur inki beti ke saath bhi galat kam karne kii koshish ki hain'. The call was marked to SI Rohtash who reached the spot, wherein it was revealed that complainant along with her daughter had gone to P.S. Janakpuri. The complainant (wife of the petitioner) alongwith her daughter aged 5 years (victim) reached the police station and filed a written complaint against the petitioner alleging that her husband had touched his penis with her daughter?s vagina and had asked her daughter to taste his penis. It is further the case of the complainant that petitioner forcefully made the victim taste his penis but victim did not like the taste of the penis. By aforesaid time, complainant reached, on which the petitioner started fighting with the complainant. Further, the petitioner threatened the victim not to disclose the incident to the complainant. The complainant also alleged that the incident took place on 21st , 22nd & 23rd December, 2021.

3. The medical examination of the victim was conducted on the night intervening 23rd/24th December 2021 and the present FIR was accordingly registered.

4. During the course of investigation, the statement of victim 'K' was recorded under section 164 Cr.P.C. The clothes and mask of the victim 'K' were taken into police possession and sent to FSL for expert opinion. However, the blood sample of the victim which was required for examination as per the communication received from FSL, has not been provided till date by the complainant, despite information being received by her.

5. Vide impugned order dated 27.01.2022, the application for anticipatory bail filed on behalf of the petitioner, was declined in view of bar under sub-Section (4) of Section 438 of Code of Criminal Procedure, 1973.

6. Learned counsel for the petitioner contended that petitioner is a young Mechanical Engineer aged 34 years and got married to the complainant on 02.12.2014. Further, both were living separately since May, 2015 due to matrimonial differences. A complaint was lodged by wife of the petitioner with DCP, CAW Cell, Nanakpura on 11.01.2016 which culminated into registration of FIR No.107/2017, under section 498A/406/323/34 IPC and Section 3 & 4 of Dowry Prohibition Act on 17.02.2017 at PS: Ambedkar Nagar. A girl child (victim) was born out of the said wedlock on 22.01.2016. Petition for divorce was further filed by the petitioner on 09.09.2016 and proceedings under Domestic Violence Act were initiated on behalf of the wife of the petitioner on 06.05.2016. In FIR No. 107/2017, the charges were framed under sections 498A/406/323/34 IPC and Section 3 & 4 of Dowry Prohibition Act against the petitioner and his parents. The aforesaid proceedings finally culminated into a compromise in November 2020. In the meantime, the wife of the petitioner got enrolled as an Advocate in August 2019. In view of the aforementioned settlement between the parties, proceedings under the D.V. Act were withdrawn. The proceedings under section 498A/406 IPC in respect of FIR no. 107/2017 are still pending before the learned Trial Court. The parties thereafter started living together w.e.f. 25.12.2020 in tenanted premises. The aforesaid factual position has been detailed to reflect that the parties had multiple litigations prior to lodging of the present FIR.

7. Learned counsel for the petitioner further pressed for anticipatory bail on the following grounds:-

(i) That