The court considered the seriousness of the offences alleged, the threat posed by the accused, and the applicability of Section 29 of the POCSO Act in determining the grant of bail.

JUDGMENT

Prateek Jalan, J. - The proceedings in the matter have been conducted through hybrid mode [physical and virtual hearing].

1. By way of this application under Section 439 of the Code of Criminal Procedure, 1973 ['CrPC'], the applicant seeks regular bail in connection with FIR No. 126/2021, dated 25.02.2021, registered at Police Station Mundka, under Sections 377/34 of the Indian Penal Code, 1860 ['IPC'] and Section 6 of the Protection of Children from Sexual Offences act, 2012 ['POCSO act'].

Facts

2. The FIR was registered on the complaint of a 13 year old boy [hereinafter referred to as 'X']. The allegations in the FIR are as follows:

a. On the evening of 24.02.2021, X was approached by the co-accused child in conflict with law ['CCL'] [hereinafter referred to as 'R'], who has a stall selling eggs in the lane outside X's place of residence. R asked X to accompany him for playing Ludo.

B. Subsequently, R took X into the bushes where they were joined by the applicant [hereinafter referred to as 'S'], who is a truck driver.

C. R forcefully removed X's pants and committed a wrong act upon him from behind.

D. Subsequently, S took X to a truck and forcefully committed a wrong act upon him from behind, while he was inside the truck.

E. When X began to raise a hue and cry, S threatened him by stating that if X told anyone about the incident, he shall kill him.

F. about three days prior to the incident in question, R had committed the same act upon X forcefully. X did not apprise anyone of the aforesaid incident out of fear.

G. Upon physical pain being caused to him by the incident in question, which made him cry, he narrated the incident to his mother.

H. X's sister thereafter called the police.

I. On 25.02.2021, X was taken to SGM Hospital for a medical examination, where he complained of experiencing pain while defecating. The examining doctor observed that multiple fissures (tear) were present around the anal opening, however no active bleeding/mucus discharge was present. X was also counselled by the counsellor at the hospital. During the medical examination, certain exhibits taken by the examining doctor were handed over to the police and a seizure memo was prepared.

3. after investigation, the charge sheet was filed in april, 2021. It records inter alia that on 26.02.2021, X led the investigating team to the truck in question, where S was found. He was identified by X and arrested. S remains in judicial custody since then. Charges against S under Section 506 of the IPC have also been added in the charge sheet. a site plan has also been prepared at the instance of X. On 27. 02.2021, X's statement under Section 164 of the CrPC was recorded. as recorded in the charge sheet, in the statement under Section 164 of the CrPC, X stated that R and S had both committed penile-anal penetrative sexual assault upon him. R was arrested on 25.02.2021 and is currently admitted to bail.

4. On 24.03.2021, blood samples and penile swabs of S and R, as well as the blood sample, rectal swab and clothes worn by X at the time of the incident were sent to the forensic laboratory for examination.

5. On 07.06.2021, S made an application for regular bail before the Sessions Court, which was rejected on 19.06.2021. It was inter alia submitted before the Sessions Court that S be granted bail on the ground of parity with R, i.e. the prime accused, and that S was not at the scene of the incident on 26.02.2021 and was, in fact, at his home. The Sessions Court, however, dismissed the application on the following grounds:

a. The seriousness of the offences alleged against S.

B. The contents of X's statement recorded under Section 164 of the CrPC.

C. S cannot be considered at par with R as R was a CCL who was granted bail under the Juvenile Justice (Care and Protection of Children) act, 2015.

D. The apprehensions of threat posed by S, as raised by X.

E. The fact that X was yet to be examined.

F. S's plea of alibi and his plea disputing his friendship with R were defenses tha