Full Text
HIGH COURT OF DELHI
Date of Decision: 27th AUGUST, 2024 IN THE MATTER OF:
RIYAZ .....Petitioner
Through: Mr. M. P. Sinha, Mr. Yatharth Sinha, Mr. Hitesh Thakur, Ms. Tanushka Kohli, Mr. Neeraj Kanwar, Mr. Mayank Rana, Mr. Harsh Pandey and
Mr. Vikas Kumar, Advocates.
Through: Mr. Yudhvir Singh Chauhan, APP for the State.
Mr. Kushdeep Gaur, Advocate for R- 2.
SI Nisha, PS Mohan Garden
JUDGMENT
1. Petitioner has approached this Court seeking bail in FIR No. 642/2021 dated 12.11.2021, registered at Police Station Mohan Garden for offences punishable under Sections 363/376 IPC and Section 6 of the POCSO Act.
2. The facts, in brief, leading to the filing of the present Petition are as follows: a. The present FIR was registered on the complaint of the father of the Prosecutrix, who stated that her daughter who is 16 years of age is missing since evening of 12.11.2021. On the statement of the father of the Prosecutrix, the present FIR was registered under Section 363 IPC. It is stated that with the help of technical assistance, it was found that the Prosecutrix was residing in Rudrapur, Uttrakhand with the Petitioner herein. It is stated that the Prosecutrix was recovered on 18.11.2021 and was brought back to Delhi. b. It is stated that during her medical examination, the Prosecutrix told the Doctors that she eloped with the Petitioner herein on 12.11.2021 and they stayed together and established physical relations. She also stated that the Petitioner herein has not assaulted her. It is stated that after the statement of the Prosecutrix, Section 376 IPC and Section 6 of the POCSO Act were added in the FIR against the Petitioner herein. c. It is stated that on 19.11.2021 statement of the Prosecutrix under Section 164 Cr.P.C was recorded wherein she reiterated what she has told the doctors during her medical examination. d. The Petitioner herein was arrested on 19.11.2021. e. It is stated that during the course of investigation, the father of the Prosecutrix gave a mobile phone of the Prosecutrix to the Police alleging that the Petitioner has sent nude photos and videos of the Prosecutrix. The mobile phone was seized and was sent to FSL Rohini for obtaining expert opinion. It is stated that as per the opinion of the expert opinion some nude videos of the Prosecutrix were found in the mobile phone given by the father of the Prosecutrix. f. It is stated that investigation in the matter is complete and charge-sheet has been filed on 17.01.2022 against the Petitioner for offences under Sections 363/376 IPC and Section 6 of the POCSO Act. g. It is stated that the Petitioner approached the Trial Court seeking bail and the said application was rejected by the Trial Court vide Order dated 02.04.2024. h. It is stated that the Prosecutrix has been examined on 11.05.2022 and the case is at the stage of prosecution evidence. i. The Petitioner has, thereafter, approached this Court seeking bail.
3. The Learned Counsel for the Petitioner contends that the Petitioner is innocent and has been falsely implicated in the present case. The learned Counsel for the Petitioner further submits that the Petitioner and the prosecutrix formed a friendship and established physical relations with the consent of each other. It is further contended that the Prosecutrix voluntarily accompanied the Petitioner to Uttarakhand, and that any interaction between them was entirely consensual and free of any coercion. He further states that that all the public witnesses, including the Prosecutrix, have been examined and discharged and, therefore, there is no apprehension of the Petitioner influencing the witnesses or tampering with evidence. He states that the Petitioner is in custody since 19.11.2021 and the charge-sheet has been filed and all the public witnesses have been examined and, therefore, the Petitioner be released on bail.
4. Per contra, The Learned APP for the State and the Learned Counsel for the Prosecutrix vehemently opposes the bail application. stating that the Petitioner is accused of a very serious offence and if convicted, he is likely to be punished upto life imprisonment. Learned Counsels state that the fact that the Prosecutrix has been examined does not mean that the Petitioner would be entitled to bail looking at the gravity of the offence.
5. Heard Learned Counsels and perused the material on record.
6. The parameters to be considered for grant of bail have been consistently enunciated by the Apex Court. The parameters laid down by the Apex Court are: a. nature and gravity of the charge; b. severity of the punishment in case of conviction; c. reasonable apprehension of witness being influenced; d. prima facie or reasonable ground to believe that the accused had committed the offence; e. character, behaviour, means, position and standing of the accused; f. danger of justice being thwarted by grant of bail. (Refer: Ram Govind Upadhyay vs. Sudarshan Singh and Others, (2002) 3 SCC 598 and Prasanta Kumar Sarkar vs. Ashis Chatterjee and Another,
7. The allegation against the Petitioner is that the Petitioner established physical relationship with the Prosecutrix. In her statement given under Section 164 Cr.P.C., the Prosecutrix has stated that she went with the Petitioner on her own and that the relationship which has been established between the Petitioner and the Prosecutrix is consensual. As per the statement of the Prosecutrix under Section 164 Cr.P.C, the Petitioner and the Prosecutrix were friends and are old enough to understand things.
8. This Court is of the opinion that the present case is of love affair between the Prosecutrix and the Petitioner. Consensual sex between girls who are just below the age of 18 years and boys who are just above 20 years has been in legal grey area because the consent given by a minor girl cannot be said to be a valid consent in the eyes of law.
9. At this juncture, this Court is not going into the question as to whether the Petitioner has committed offences under Sections 363/376 IPC and Section 6 of the POCSO Act or not. This Court is only concerned with as to whether a youngster who is in jail for about three years now should be granted bail or not in view of the fact that all the public witnesses, including the Prosecutrix, have been examined.
10. This Court has been constantly seeing that POCSO cases are being filed at the behest of the girl’s family who object to her friendship and romantic involvement with a young boy and the law is being misapplied in such cases which results in young boys, who have genuinely fallen in love with young adolescent girls, languishing in jails.
11. The statement given by the Prosecutrix to the doctors and her statement under Section 164 Cr.P.C that she went with the Petitioner herein on her own and that the Petitioner has not forced himself on her and that after they starting staying on rent in Uttarakhand, the Petitioner tried to get a job, and the age of the Petitioner herein tilt the case in favour of the Petitioner herein for grant of bail.
12. In Anant Janardhan Sunatkari v. State of Mahrashtra, (2021) SCC Online Bom.136, the Bombay High Court, while dealing with a case involving a 19 year old boy who had been convicted of rape of a 15 year old girl, released the accused on bail and has observed as follows:
12. I am conscious of the fact that the passing of POCSO has been significant and progressive step in securing children's rights and furthering the cause of protecting children against sexual abuse. The letter and spirit of the law, which defines a child as anyone less than 18 years of age, is to protect children from sexual abuse.
13. I am also conscious of the fact that consensual sex between minors has been in a legal grey area because the consent given by minor is not considered to be a valid consent in eyes of law.
14. In the case at hand, facts are distinctive in the sense, victim is first cousin sister of the appellant. At the relevant time, she was 15 year old and appellant was 19 year old. Both were students and living in one house. A fact cannot be overlooked that the victim had resiled from her statement and further disowned the contents of portion marked B of her statement recorded under Section 164. Even her mother was unfriendly to prosecution. Opinions of doctor that victim was subjected to sexual assault was subject to FSL report. The FSL report was not obtained till the conclusion of the trial. Victim said, her statement to the police and narrative in statement under Section 164 was at the instance of Class teacher. Therefore, in the proceedings, wherein suspension of sentence is sought, this Court cannot ignore the „evidence of victim‟ and „her mother‟. At the same time, the age of the victim and of appellant their relations also cannot be overlooked. Though the prosecution vehemently argued and relied on Section 29 and 30, which provides for presumption of culpable, mental state as to certain offences, in my considered opinion, this submission and argument of the prosecution is to be gone into, when appeal is to heard finally.”
13. A similar view has been taken by the Gujarat High Court in Jayantibhai Babulbhai Alani v. State of Gujarat, (2018) SCC Online Guj. 1223, wherein the High Court has observed as under:
14. A co-ordinate Bench of this Court in Dharmander Singh v. State, (2020) SCC Online Del 1267, has laid down the parameters that are to be followed when considering bail of a person accused under the POCSO Act, and the same reads as under:
addition to the nature and quality of the evidence before it, the court would also factor in certain real life considerations, illustrated below, which would tilt the balance against or in favour of the accused: a. the age of the minor victim: the younger the victim, the more heinous the offence alleged; b. the age of the accused: the older the accused, the more heinous the offence alleged; c. the comparative age of the victim and the accused: the more their age difference, the more the element of perversion in the offence alleged; d. the familial relationship, if any, between the victim and the accused: the closer such relationship, the more odious the offence alleged; e. whether the offence alleged involved threat, intimidation, violence and/or brutality; f. the conduct of the accused after the offence, as alleged; g. whether the offence was repeated against the victim; or whether the accused is a repeat offender under the POCSO Act or otherwise; h. whether the victim and the accused are so placed that the accused would have easy access to the victim, if enlarged on bail: the more the access, greater the reservation in granting bail; i. the comparative social standing of the victim and the accused: this would give insight into whether the accused is in a dominating position to subvert the trial; j. whether the offence alleged was perpetrated when the victim and the accused were at an age of innocence: an innocent, though unholy, physical alliance may be looked at with less severity; k. whether it appears there was tacit approval-in-fact, though not consent-in-law, for the offence alleged; l. whether the offence alleged was committed alone or along with other persons, acting in a group or otherwise; m. other similar real-life considerations.
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 however, considering the myriad facets and nuances of real-life situations, it is impossible to cast in stone all considerations for grant or refusal 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 view of section 29, when a bail plea is being considered after charges have been framed, the above additional factors should be considered.” (emphasis supplied)
15. Charge-sheet in the present case has been filed and all the public witnesses, including the Prosecutirx, have been examined. The Petitioner has roots in the society and, therefore, it cannot be said that the Petitioner would flee from justice. The social status of the Petitioner vis-à-vis, the Prosecutrix is similar, and it cannot be said that the social status of the Petitioner is such which would give a reasonable apprehension in the mind of the court that the Petitioner would be in a position to influence the Prosecutrix or any other witnesses.
16. The petitioner has been in custody since 19.11.2021. This Court is of the opinion that if the Petitioner continues to be in jail, the chances of the Petitioner coming out as a hardened criminal are very high. The future of a youngster cannot be ignored by this Court at this juncture.
17. In view of the law laid down by the Apex Court and in view of the fact that all the public witnesses, including the Prosecutrix, have been examined, and also looking at the age of the Petitioner, this Court is of the opinion that no useful purpose would be served in keeping the Petitioner further in custody. This Court, therefore, is inclined to grant bail to the petitioner on the following conditions: a) The petitioner shall give a security in the sum of Rs.50,000/with two sureties in the like amount to the satisfaction of the Trial Court; b) The Memo of Parties shows that the petitioner is residing at H.No.20, New MS Block, Near OK Model School, New Delhi. The Petitioner is directed to continue to reside at the same address and in case there is any change in the address of the Petitioner, the Petitioner is directed to intimate the same to the Investigating Officer. c) The Petitioner is directed not to leave the city of Delhi without seeking prior permission from the concerned Court. d) The Petitioner is directed to report to the local police station once in every week, i.e. on every Wednesday at 10:30 AM and the Petitioner shall be released within half an hour after completing the formalities.; e) The Petitioner is directed to give all his mobile numbers to the Investigating Officer and keep them operational at all times; f) The petitioner shall not, directly or indirectly, tamper with evidence or try to influence the witnesses in any manner; g) The Petitioner is directed not to contact the Prosecutrix or any of her family members. h) The petitioner shall attend all the Court proceedings. i) In case it is established that the petitioner has tried to influence the witnesses or tamper with the evidence, the bail granted to the petitioner shall stand cancelled forthwith.
29. The petition is disposed of along with all the pending application(s), if any.
30. Be it noted that this Court has not made any observations on the merits of the case.
SUBRAMONIUM PRASAD, J AUGUST 27, 2024