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IN THE HIGH COURT OF DELHI AT NEW DELHI
Amit Mahajan, J.
Amit Thapliyal – Appellant
Versus
The State & Anr. – Respondents
Bail Appln. 866 of 2022
Decided On : 03-03-2023
BAIL - Criminal Procedure - Cr.P.C. - IPC - POCSO Act - [Sections 354A, 376AB, 6, 10, 12] - The court discussed the provisions of the Indian Penal Code, 1860, and the Protection of Children from Sexual Offenses Act, 2012, specifically focusing on the statutory presumption under Section 29 of the POCSO Act. The court emphasized the need to evaluate the credibility of evidence and the impact of Section 29 in bail matters, highlighting the considerations for granting bail in POCSO cases.
Fact of the Case:
The applicant sought bail in a case involving allegations of sexual assault on his daughter. The applicant's counsel argued that the allegations were false and part of a matrimonial dispute, citing the complainant's behavior and delay in filing the FIR. The prosecution opposed bail, emphasizing the seriousness of the charges and the victim's consistent statements.
Finding of the Court:
The court noted the history of matrimonial discord between the parties and the multiple complaints filed by both sides. It highlighted the delay in filing the FIR and the lack of explanation for the delay. The court considered the impact of Section 29 of the POCSO Act and the need to scrutinize the victim's statement with caution. Ultimately, the court granted bail to the applicant, emphasizing the need to evaluate the evidence and the consequences of pre-trial detention.
Issues: Matrimonial discord, delay in filing FIR, credibility of victim's statement, impact of Section 29 of the POCSO Act, consequences of pre-trial detention
Ratio Decidendi: The court's decision to grant bail was based on the history of matrimonial discord, delay in filing the FIR, and the need to evaluate the evidence and scrutinize the victim's statement with caution. The court emphasized the impact of Section 29 of the POCSO Act and the need to consider the consequences of pre-trial detention.
Final Decision: The court granted bail to the applicant with specific terms and conditions, highlighting the need to evaluate the evidence and caution in scrutinizing the victim's statement. The court emphasized that the observations made in the bail decision should not influence the trial outcome or be taken as an expression of opinion on the merits of the case.
JUDGMENT
Amit Mahajan, J.
1. The present application has been filed under Section 439 of Code of Criminal Procedure, 1973 ("Cr.P.C.") praying inter alia, for the grant of regular bail in FIR No. 256/2021 dated 17.06.2021, registered under sections 354A and 376AB of the Indian Penal Code, 1860 ("IPC") and Sections 6,10, and 12 of Protection of Children from Neutral Citation Number is 2023/DHC/001595 Sexual Offenses Act, 2012 (POCSO Act) at Police Station Ghazipur, New Delhi.
BRIEF FACTS
2. The FIR was registered on the complaint of the applicant's wife dated 28.11.2020 (hereinafter referred to as "complainant") on behalf of her daughter, who is the victim. The FIR was initially registered for offences under Section 354(A) of the IPC and Sections 10 & 12 of the POCSO Act. Following the statements made under Section 161 Cr.P.C by the victim, Section 376AB of IPC & Section 6 of the POCSO Act were added. After investigation, the chargesheet was filed on 07.09.2021, and charges under Sections 6, 10 & 12 of the POCSO Act and Section 354A IPC have been framed against the applicant/accused on 30.10.2021. The applicant was arrested on 15.07.2021 and has been in judicial custody since then.
3. The applicant had preferred two bail applications before the learned Sessions Court, which was dismissed, firstly, on 28.07.2021 and, then on 22.02.2022, submitting to the effect that material witnesses of the prosecution were yet to be examined and keeping in view the testimony of the victim recorded under Section 164 Cr.P.C.
4. Allegations in the FIR:
4.1. The marriage between the complainant and the applicant was solemnized on 07.12.2013, and a daughter was born out of wedlock on 21.07.2016.
4.2. The complainant states that she has been working as a DEO at CPWD for the past 13 years. She also states that the applicant started working from home after the lock down i.e., post-March 2020.
4.3. It is alleged that the applicant misbehaved with the complainant and the victim/daughter on several occasions. It is also stated that in the year 2020, during the Covid-19 lock down period, on the alleged day of the incident, i.e., 04.07.2020, at around 6:11 pm, when the complainant returned from her mother's home, she saw the applicant naked, lying on his stomach. The victim (who was aged about three-four years (her date of birth being 21.07.2016) at that time, was standing on his back without wearing any bottoms. The complainant quietly made a video of the incident, and when she confronted the applicant, he threatened her to kill their daughter if she disclosed about the said incident to anyone. The complaint with regard to the said incident was finally given to the Police on 28.11.2020, and the FIR got registered on 17.06.2021. the complainant alleged that she had not filed a complaint earlier due to fear.
4.4. The victim was counselled and medically examined (MLC No. 183/2021) on 16.06.2021 at Lal Bahadur Shastri Hospital, Khichripur, Delhi; however, the complainant refused the internal examination of the victim.
4.5. The statement of the victim was recorded under Section 164 of the Cr.P.C. by the learned Reliever Metropolitan Magistrate ("Magistrate") on 03.07.2021.
5. The complainant's testimony was recorded under Section 164 of the Cr.P.C. on 03.07.2021. In the statement, the complainant recounted the incident of 04.07.2020, which led to the filing of the present FIR. She alleged that the applicant used to make physical relations with her in front of their daughter, touch the perineal region of the victim while giving her a bath and further threatened her of dire consequences when she did not listen to him.
6. The examination and cross-examination of the victim was recorded in the vulnerable witness room on 02.12.2021 and 04.12.2021. While adducing the evidence, the victim stated that the applicant touched her perineal area while bathing her in the absence of the complainant and asked her to sit on him while he used to be naked. She further stated
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