The importance of addressing allegations and societal context in bail decisions.

JUDGMENT

Anup Jairam Bhambhani J.

1. By way of the present petition filed under section 439 of the Code of Criminal Procedure, 1973 ("Cr.P.C.") the petitioner seeks grant of regular bail in case FIR No. 448/2022 dated 25.06.2022 registered under section 376 of the Indian Penal Code, 1860 ("IPC") and section 6 of the Protection of Children from Sexual Offences Act, 2012 ("POCSO Act") at P.S.: Shahbad Dairy.

2. Notice on this petition was issued on 17.10.2022; consequent whereupon Status Report dated 23.01.2023 has been filed. Though no nominal roll was called for, the Investigating Officer confirms that the petitioner has been in custody from the day of his arrest on 27.06.2022.

3. Chargesheet and supplementary chargesheet have been filed in the matter.

4. The court has heard Ms. Suruchi Aggarwal, learned senior counsel appearing for the petitioner as well as Mr. Amit Sahni, learned APP appearing for the State; as also Mr. Sunil Dalal, learned senior counsel appearing for the prosecutrix in compliance of section 439(1A) Cr.P.C. The court has also heard the prosecutrix who appeared via video-conferencing, and also in chambers in-person.

Prosecution Case

5. The petitioner and the prosecutrix are acquainted since the petitioner was her schoolteacher and also used to give out-of-school tuitions to her. It is the prosecution's case that the prosecutrix received a call from the petitioner sometime in April 2021 asking her to meet him at the Rithala Metro Station on the pretext of providing her with some notes for an exam. Upon meeting the prosecutrix, the petitioner is alleged to have informed her that he needed to give her some more notes which were at his residence. He assured her that his family was at his home; and the prosecutrix accompanied him to his residence at Sector-28 Rohini on his motorbike. It is alleged that at his residence, the petitioner offered the prosecutrix some water and snacks, after consuming which the prosecutrix fainted and the petitioner committed forcible sexual intercourse upon her. When the prosecutrix regained consciousness, the petitioner showed to her an objectionable video-recording of the incident and threatened the prosecutrix against telling anyone about the incident, else he would make the video `viral'. It is stated that thereafter the prosecutrix went to her bua's house.

6. It is further alleged that subsequently, using the threats of making the objectionable video viral, the petitioner committed sexual intercourse with the prosecutrix about 4 times at his house; and about 7 times at one Hotel Florence Residence, near East Rohini Metro Station. As per the prosecutrix's Class-II School Leaving Certificate and her Class-X Mark Sheet filed along with the chargesheet, at the time of commission of some of the alleged sexual assaults, the prosecutrix was `minor'.

7. The prosecutrix attained majority on 16.01.2022. The alleged sexual acts by the petitioner upon her are alleged to have continued even thereafter.

8. The last incident is said to have occurred on 24.06.2022. The allegation is that at about 7:30 p.m. on 23.06.2022 the petitioner called the prosecutrix, asking her to meet him at the same hotel on 24.06.2022. It is stated that though she refused to meet him, the petitioner called the prosecutrix again while she was on the way to her aunt's house for her grandmother's tehrvi, and again threatened her about spreading the objectionable video, whereupon the prosecutrix met the petitioner at the hotel, where he again committed forcible sexual intercourse with her.

9. After the incident of 24.06.2022, a complaint was filed with the police on 25.06.2022 and the FIR came to be registered. Following that, the statement of the prosecutrix was recorded under section 164 Cr.P.C. and her MLC was conducted on the same day vide MLC No 111/2022 dated 25.06.2022, which noted that the prosecutrix's hymen was ruptured.

Submissions on behalf of the petitioner

10. Denying the allegations in the FIR, Ms.