Allowed

Anil Kumar v. State of NCT of Delhi and Anr.

Delhi HC1 Mar 2024BAIL APPLN./97/2023

Case brief

AI extract

What is this about?

A judge granted regular bail to a petitioner accused of sexually assaulting a minor under the POCSO Act. The court found the relationship consensual, noted neither party was of marriageable age, and observed the petitioner had no flight risk or criminal record, overriding the high bail threshold under Section 29 POCSO.

What did the court decide?

Petitioner granted regular bail subject to personal bond of Rs. 20,000/ and one surety bond, along with conditions regarding appearance, contact availability, and no communication with witnesses.

Anil Kumar Vs State of NCT of Delhi and Anr. — Child Sexual Offences (POCSO) | Delhi HC (2024)

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$~5

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* IN THE HIGH COURT OF DELHI AT NEW DELHI

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% Judgment deliver e d on: 01.03.2024

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BAIL APP L N. 97/2023

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ANIL KU M AR ..... Petitioner Through: Mr. M.K. Perwez, Adv. Versus

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STATE OF NCT OF DELHI AND ANR ..... Respondents Through: Mr. Hemant Mehla, A PP for State.

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CORAM: HON'BLE MR. JUSTICE VIKAS MAHAJAN

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JUDGMENT

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VIKAS MAHAJAN, J. (ORAL)

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The presen t petition has been filed under Section 4 39 CrPC seeking regular bail in co n nection with FIR No.21/2021 under Se c tion 376 IPC and Section 4/6 of PO C SO Act registered at Police Station Ran j it Nagar. 2. The brief f acts of the case are that a statement w as made by the prosecutrix wher e in she alleged that she was in a rela t ionship with the petitioner for the p ast two years. The petitioner called her and took her to a room in East Pat e l Nagar at his friend’s house and established physical relationship with t he victim against her wishes. The pro s ecutrix, who was minor at that time b ecame pregnant and the child had to be a borted, this led to the registration of the aforesaid FIR.

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The learned counsel for the petitioner invites the attention of the Court to the statement o f the victim dated 23.01.2021 recorded u nder Section 164

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Signature Not Verified

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Digitally Signed By:NARENDRA SINGH BAIL APPLN. 97/2023 ASWAL Signing Date: 02.0 3.2024 17:11:06

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CrPC to contend t h at the victim has clearly stated in her stat e ment that she had voluntarily established physical relationship with the petit i oner. He submits that in yet another statement of the victim recorded under S ection 164 CrPC, she has stated th a t she does not want any case against t he petitioner and wishes to marry t h e petitioner.

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He submits t hat it is a case of consensual romantic rel a tionship between two young person s and the provisions of POCSO Act ought not to have been invoked in the pre s ent case. 5. The learned counsel for the petitioner invites the attention of the Court to the statement o f the victim, who was examined as PW-1, t o contend that the victim in her ex a mination-in-chief has stated that her date of birth is 05.04.2003 and she has reiterated the same even when she was cross-examined b y the learned APP. Further, she has also s tated that her date of birth in the sch o ol certificate i.e. 24.06.2005 is incorrect . 6. He submits that in case the date of birth of the pros e cutrix is taken as 05.04.2003 as st a ted by her in her testimony, it clearl y shows that the prosecutrix was a b ove 17 years of age at the time of al l eged incident on 12.12.2020.

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He submits that the petitioner is in custody since 2 4 .08.2021 and the testimony of the v ictim has already been recorded, ther e fore, there is no possibility of the p etitioner influencing the victim in the e v ent he is enlarged on bail. He submi t s that the petitioner has clean anteceden t s and he does not have criminal rec o rd.

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In the back d rop of the aforesaid circumstances, he u r ges the Court that the petitioner may be enlarged on bail.

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Per contra , the learned APP has argued on the lines of the Status

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Signature Not Verified

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Digitally Signed By:NARENDRA SINGH ASWAL Signing Date: 02.0 3.2024 17:11:06

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BAIL APPLN. 97/2023

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Report. He furth e r submits that since the victim was a m i nor, therefore her consent was imm a terial.

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I have hea r d the learned counsel for the petitione r , as well as, the learned APP for t h e State and have perused the record. 11. A perusal of victim’s statements under Section 164 CrPC shows that she has clearly st a ted that the physical relationship establ i shed between her and the petitione r was consensual and she does not wa n t any case to be registered against the present petitioner, rather she is inte r ested in marrying the petitioner.

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Undoubtedl y , there is material on record to prima fac i e indicate that the age of the prosec u trix was about 17 years of age. This Co u rt is cognizant of the fact that thoug h the prosecutrix was minor at the time of incident but at the same time it can n ot be overlooked that she was of suffi c ient maturity and intellectual capaci t y and she joined the company of the pet i tioner at her own will.

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This Court i n “Ajay Kumar vs State Govt. of NCT and Anr” in Bail Application 2729 / 2022 observed that the intention of P O CSO Act was to protect the childre n below the age of 18 years from sexual e x ploitation. It was never meant to cri m inalise consensual romantic relationshi p s between young individuals.

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This Court is also conscious of the fact that a Co o rdinate Bench in “Dharmander Singh vs. State” 2020 SCC OnLine Del 1267, has observed that after the char g es are framed, because of the impact of Section 29 of the POSCO Act, the t hreshold for granting the bail will be h igher. In the said case, the Court ha s laid down the contours within which bai l application of an accused person un d er the POCSO Act is to be considered. T h e relevant part of

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Signature Not Verified

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Digitally Signed By:NARENDRA SINGH ASWAL Signing Date: 02.0 3.2024 17:11:06

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BAIL APPLN. 97/2023

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the decision reads as under:-

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“74. As al w ays, when faced with such dilemma, the court must apply the golden p rinciple of balancing rights. In the opi n ion of this court therefore, at the stage of considering a bail plea after charges have been framed, the impact of section 29 would only be to raise the threshold of satisfaction required before a court grants bail . What this means i s that the court would consider the evid e nce placed by the prosecution along with the charge-sheet, provided i t is admissible in law, more favorably for the prosecution and evaluate , though without requiring p r oof of evidence, whether the evidence so placed is credible or whether it ex facie appears that the evidence will not sustain the weight of guilt.

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xxxx xxxx xxxx xxxx

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“77. Thou g h the heinousness of the offence alleg e d will beget the length of s e ntence after trial, in order to give due weightage to the intent and p urpose of the Legislature in engrafting section 29 in this special stat u te to protect children from sexual offenc e s, while deciding a bail plea at the post-charge stage, in addition t o the nature and quality of t h e evidence before it, the court would also factor in certain real life considerations, illustrated below, whic h would tilt the balance against or in favour of the accused:

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a. the ag e of the minor victim : the younger the victim, the more heinous t h e offence alleged;

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b. the ag e of the accused : the older the accused, the more heinous the offen c e alleged;

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c. the co m parative age of the victim and the accus e d : the more their age diffe r ence, the more the element of pervers i on in the offence alleged; d. the familial relationship, if any, between the victim and the accused : the closer such relationship, the more o dious the offence alleged; e. whether the offence alleged involved threat, inti m idation, violence and/or b r utality;

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f. the con d uct of the accused after the offence, as a lleged; g. wheth e r the offence was repeated against the v ictim; or whether

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Signature Not Verified

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Digitally Signed By:NARENDRA SINGH BAIL APPLN. 97/2023 ASWAL Signing Date: 02.0 3.2024 17:11:06

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the accus e d is a repeat offender under the POCSO Act or otherwise; h. wheth e r the victim and the accused are so place d that the accused would ha v e easy access to the victim, if enlarged o n bail : the more the acces s , greater the reservation in granting bai l ; i. the co m parative social standing of the victim an d the accused : this would gi v e insight into whether the accused is in a dominating position t o subvert the trial; j. whethe r the offence alleged was perpetrated w h en the victim and the accu s ed were at an age of innocence : an innocent, though unholy, p h ysical alliance may be looked at with le s s severity; k. wheth e r it appears there was tacit approval-i n -fact, though not consent-i n -law, for the offence alleged; l. whethe r the offence alleged was committed al o ne or along with other pe r sons, acting in a group or otherwise; m. other similar real-life c onsiderations.

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78. The above factors are some cardinal considerations, though far from exhaustive, that would guide the court in assessing the egregiousness of the offence alleged; and in deciding which way the balance would tilt. At the end of the day howeve r , considering the myriad fa c ets and nuances of real-life situations, i t is impossible to cast in sto n e all considerations for grant or refusa l of bail in light of section 29. The grant or denial of bail will remain, as always, in the subjective satisfaction of a court; except that in v i ew of section 29, when a ba i l plea is being considered after charges h ave been framed, the above a dditional factors should be considered. ”

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However, a t this stage, it is relevant to note that both the petitioner and the victim were u n married and were almost of marriageable age. Further, they were also known to each other since both belong to Bihar.

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Though the consent of the victim for the physical r elation cannot be construed as cons e nt-in-law but the statements of the victim recorded under Section 164 CrP C shows there was an express or tacit a p proval-in-fact for such physical rela t ion. Thus, it appears to be a case of a ro m antic relationship between the petiti o ner and the victim at an age of innocenc e .

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Signature Not Verified

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Digitally Signed By:NARENDRA SINGH ASWAL Signing Date: 02.0 3.2024 17:11:06

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BAIL APPLN. 97/2023

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Further the p etitioner is in custody since 24.08.2021 and his custody is no more required. The testimony of the victim has alrea d y been recorded, therefore, there is n o basis for any apprehension that in the e v ent the petitioner is enlarged on bai l , he will try to influence the victim. 18. It is also no t the case of the prosecution that the petiti o ner is a flight risk or he has criminal record. 19. The object o f judicial custody is to secure the prese n ce of the accused during the trial w h ich can be ensured by putting appropriat e conditions. 20. Considerin g the aforesaid circumstances in entirety, t his Court is of the view that the pe t itioner has made out a case for gran t of regular bail. Accordingly, the p etitioner is enlarged on bail subject t o his furnishing a Personal Bond in the sum of Rs. 20,000/- and one Suret y Bond of the like amount to the satisfaction of the Trial Court/CMM/Duty M agistrate, further subject to the foll o wing conditions:-

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a) Petitione r shall appear before the Court as and w hen the matter is taken up fo r hearing.

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b) Petitione r shall provide his permanent address, as w ell as, his mobile number to t he IO concerned. The mobile shall b e kept in working condition a t all times and he shall not change th e mobile number without pri o r intimation to the Investigating Officer c oncerned. c) Petitione r shall not indulge in any criminal acti v ity and shall not communica t e with or come in contact with the witnesses.

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The petitio n stands disposed of.

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It is clarifie d that the observations made herein abo v e are only for the limited purpose of deciding the present bail application and the same shall not be construed as a n expression of opinion on the merits of t h e case.

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Signature Not Verified

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Digitally Signed By:NARENDRA SINGH ASWAL Signing Date: 02.0 3.2024 17:11:06

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BAIL APPLN. 97/2023

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