Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2023 Supreme(Del) 3128

IN THE HIGH COURT OF DELHI AT NEW DELHI
Vikas Mahajan, J.
Varun Arya – Appellant
Versus
State of NCT of Delhi – Respondent
Bail Appln. 1957 of 2023
Decided On : 14-08-2023

Advocates appeared:
Mr. Pradeep Kumar Arya, Mr. Aditya Kumar Yadav, Mr Gaurav chaudhary, Mr Pulkit Chadha, Mr Himanshu Kumar and Mr Naveen, Advocates, for the Petitioner.
Ms. Richa Dhawan, APP for the State with SI Aarti Jha, PS K.N.K. Marg.

The court considered the impact of Section 29 of the POCSO Act on bail applications after framing of charges, and emphasized the need to balance the rights of the accused and the protection of children from sexual offences, while also considering real-life considerations and general principles governing grant of bail.

Headnote:
POCSO Act - Bail Application - Section 439 Cr.P.C. - Sections 376/506 IPC and Section 6 of POCSO Act - [POCSO Act] - [Section 6 of POCSO Act, Section 29 of POCSO Act] - The court discussed the impact of Section 29 of the POCSO Act on bail applications after framing of charges, and enumerated real-life considerations to be taken into account while deciding a bail plea at the post-charge stage. The court also considered general principles governing grant of bail, emphasizing the gravity of the offence, likelihood of the accused fleeing from justice, and the peculiar facts of each case. The court highlighted the inordinate delay in the registration of the FIR, the existence of cross FIRs/complaints, and the victim's prolonged residence with the complainant as factors potentially creating doubt in the prosecution's case. The court granted bail to the petitioner, imposing conditions to address the prosecution's apprehension of intimidation, inducement, or threat to the victim.
Fact of the Case:

The petitioner sought bail in connection with FIR No. 64/2023 under Sections 376/506 IPC and Section 6 of POCSO Act, alleging sexual assault on his minor daughter. The victim had been residing with the complainant (mother) for over 4 years, and the incidents alleged occurred in 2019 and 2020, but the complaint was made only in 2023, raising questions about the delay in registration of the FIR.
Finding of the Court:

The court granted bail to the petitioner, considering the inordinate delay in FIR registration, the existence of cross FIRs/complaints, and the victim's prolonged residence with the complainant as factors potentially creating doubt in the prosecution's case. The court also imposed conditions to address the prosecution's apprehension of intimidation, inducement, or threat to the victim.
Issues: Delay in FIR registration, existence of cross FIRs/complaints, prolonged residence of the victim with the complainant, and potential false implication of the petitioner.
Ratio Decidendi: The court considered the impact of Section 29 of the POCSO Act on bail applications after framing of charges, enumerated real-life considerations for deciding bail pleas at the post-charge stage, and emphasized general principles governing grant of bail. The court highlighted the inordinate delay in FIR registration, the existence of cross FIRs/complaints, and the victim's prolonged residence with the complainant as factors potentially creating doubt in the prosecution's case.
Final Decision: The petitioner was granted bail, subject to conditions addressing the prosecution's apprehension of intimidation, inducement, or threat to the victim.

JUDGMENT

Vikas Mahajan, J. The present petition has been filed under Section 439 Cr.P.C. seeking regular bail in connection with FIR No. 64/2023 under Sections 376/506 IPC and Section 6 of POCSO Act, registered at P.S. K.N. Katju Marg, Delhi.

2. The case of the prosecution is that Ms. `G' (mother of victim) made a complaint on 01.02.2023, alleging that she had started living separately from her husband (the petitioner/accused herein) w.e.f. April, 2019.

3. When the complainant left her matrimonial house, both her children, a minor son and a minor daughter, were residing with their father i.e. the petitioner herein. On 12.05.2019, her daughter (victim) left her father's house and shifted with her mother in the rented accommodation, wherein her mother was residing. When the victim left the petitioner's house, the petitioner/accused would visit the complainant's rented accommodation in the absence of the complainant, to meet their daughter.

4. On 13.01.2023, the victim disclosed to her mother (complainant) that on 11.05.2019, when the victim was at her father's house and no other member was present, the petitioner (father) took off his clothes and molested the victim under the influence of alcohol and forcefully inserted his fingers into her private part. The victim also disclosed that she was sexually assaulted by her father (petitioner herein) at her mother's rented accommodation on 24.11.2020 and 06.02.2022 when her mother was away.

5. On the basis of above allegations, the aforesaid FIR came to be registered on 02.02.2023. During the course of investigation, medical examination of the victim was conducted and her statement under Section 164 Cr.P.C. was recorded.

6. Thereafter, the petitioner was arrested on 21.02.2023 and sent to judicial custody on 22.02.2023 and since then the petitioner is in judicial custody. In the status report filed by the State it has been mentioned that after completion of investigation, chargesheet was filed before the concerned court and the case is pending trial.

7. The learned counsel appearing on behalf of the petitioner submits that the complainant is the wife of the petitioner and their marriage was solemnized on 02.11.2006. Out of the said wedlock, two children were born - one daughter and one son. The daughter is elder to the son.

8. He submits that on account of marital discord the complainant left the matrimonial house and is staying separately. Further, as per the mutual understanding between the petitioner and the complainant, the girl child (victim) aged about 15years 09 months is residing with the complainant while the son who is aged about 10 years and 08 months is in the care and custody of the petitioner.

9. He submits that various cross cases have been filed by the complainant as well as the petitioner against each other. He invites the attention of the court to paragraph 10 of his petition where the details of as many as 11 FIRS/complaints/civil suit which have been lodged/instituted either by the complainant or by the petitioner or his mother have been mentioned. The details of said pending litigations are reproduced herein below for ready reference:

S.No.	FIR No./Complaint/Civil Suit	Date of FIR/Complaint/Civil Suit	Under Sections	PS	Lodged/instituted by	Against
1.	270/2020	22.10.2020	498A/406 IPC	Prashant Vihar	Complainant P @ G w/o Varun Arya	Varun Arya
2.	90/2022	08.03.2022	307/506/427 IPC	Madhuban Bapudham, Ghaziabad	Sadhna Arya M/o Varun Arya	G @ P And Sandeep Kumar
3.	179/2022	29.04.2022	380/447/448 IPC	Madhuban Bapudham, Ghaziabad	Varun Arya	G @ P and Sandeep Kumar
4.	304/2022	12.07.2022	420/447/448 IPC	Madhuban Bapudham, Ghaziabad	G @ P	Varun Arya, Navneet Kumar and Ranveer Singh Yadav
5.	Civil Suit No. 1233/202 1	22.12.2021		Ghaziabad Court		P and TechMan Builder
6.	Complaint with DD No. 67	19.01.2022		K.N. Katju Marg		Varun Arya
7.	Complaint with DD No. 33	29.01.2022		K.N. Katju Marg	Varun Arya
8.	Complaint	02.03.2022		Madhuban Bapudham, Ghaziabad	Saadhna Arya M/o Varun Arya
9.	Complaint to ACP	08.04.2022		K.N. Katju Marg	Saadh