Full Text
HIGH COURT OF DELHI
JUDGMENT
AMIT THAPLIYAL ..... Applicant
For the Applicant : Mr. Kanhaiya Singhal, Ms. Priya Garg, Mr. Chetan Bhardwaj, Mr. Prasanna, Mr. Udit Bakshi, Mr. Jasmeet Singh Chadha and Mr. Ajay Kumar, Advs.
For the Respondents :Ms. Richa Dhawan, APP for State with
Inspector Subhash Kumar, PS –Gazipur.
Mr. Shiva Jee Shukla and Mr. Ravikar Shukla, Advs. for R-2 / complainant with R-
2 in person.
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 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 lockdown 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 lockdown 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 that the applicant also threatened to kill her if she revealed anything to the complainant. Submissions
7. Learned Counsel for the applicant submits that the present FIR bearing no. 265/2021 was registered on account of matrimonial discord between the applicant and the complainant, which prompted the complainant to foist false allegations on the applicant and get an advantage in the marital spat. Further, no reference to the alleged incident of sexual assault with the victim was mentioned in the domestic violence complaint filed by the complainant in the month of November, 2020 neither in the FIR dated 17.11.2020, registered against the applicant and her father-in-law i.e., much after the alleged incident.
8. Learned Counsel urges that the lapse of around one year in registration of the present FIR is unreasonable since the alleged incident is of 04.07.2020 whereas, the FIR was lodged on 17.06.2021. He states that there is no possible explanation for the same and therefore is a complete afterthought, and the allegations have been levelled against the applicant for securing a favourable order in the matrimonial dispute.
9. Learned Counsel further submits that the allegations made by the complainant against the applicant are full of dichotomies. He has placed on record the complaints lodged by the complainant since 2020 and the counter-complaints filed by the applicant following the matrimonial disputes.
10. Learned Counsel has placed on record, WhatsApp communication of the applicant and the complainant, demonstrating the complainant's humiliating and ill-conduct towards the applicant. He has also placed on record Facebook images and video footage wherein the applicant and the victim/daughter can be seen sharing joyful moments and the same establishes falsity if the present FIR. Date Particulars 21.07.2020 The complainant shared pictures of her daughter’s birthday celebrations on Facebook, wherein it can be clearly seen that the complainant/wife, applicant/husband and their daughter were sharing joyful moments together. 03.08.2020 The complainant shared photographs of herself, the applicant/husband and their daughter celebrating the complainant’s birthday. 03.08.2020 The complainant also shared photographs of herself and the applicant/husband and their daughter celebrating their marriage anniversary with a caption which apparently shows a cordial relationship between the parties.
11. He further places on record the screenshots of pictures of the complainant during her video calls/chats with unknown men and states that the complainant was involved in various kinds of illicit activities on dating applications which illustrates the inhumane conduct of the complainant towards the applicant and the manipulation of the present FIR.
12. Learned Counsel claims that a cursory review of the purported video taken by the complainant to link the applicant to the incident derails the case because no overt or obscene behaviour could be detected in it. In fact, the victim entered the room when the complainant and applicant were spending some quality time together. After that, she approached the applicant and stood over his back while playing, and the complaint deliberately recorded this for her own wicked purpose.
13. Learned Counsel submits that the victim and the complainant have already been examined, and examination of other witnesses will take considerable time.
14. Learned Counsel for the applicant places reliance in the case of Joy v. State of Kerala 2019 SCC OnLine Ker 783, which clarified the usage of statutory presumption under Section 29 of the Act in bail matters by observing that the statutory presumption under Section 29 of the Protection of Children from Sexual Offences Act, 2012 ('POCSO Act') does not mean that the prosecution version has to be accepted as gospel truth in every case.
15. He further places reliance in the case of Swapan Mondal Vs. State 2021 SCC OnLine Cal 2007, wherein the Court has held that unless the prosecution is able to prove foundational facts in the context of the allegations made against the accused under the POCSO Act, the presumption under Section 29 of the said act would not operate against the accused. Even if the prosecution establishes such facts and the presumption is raised against the accused, he can rebut the same either by discrediting prosecution witnesses through cross-examination demonstrating that the prosecution case is improbable or absurd or the accused could lead evidence to prove his defence, in order to rebut the presumption. In either case, the accused is required to rebut the presumption on the touchstone of preponderance of probability.
16. He further submits that the statement of the victim has already been recorded before the learned Trial Court and there are no chances of either threatening the witness or tampering with the evidence by the applicant. The applicant is also not at flight risk.
17. Learned Counsel for the applicant has also placed in the following judgments in support of his submissions: a. Atender Yadav Vs. State Govt. of NCT of Delhi [Crl.A.No.1340 of 2010, dated 29.10.2013]. b. N. Chandramohan vs. State, Madras High Court c. Varun Bansal v Vibha Bansal [MANU/KE/2857/2019] d. Anu P. Kumar v State of Kerala, 2019 SCC OnLine Ker e. Swarup Mohan v State of Kerala [ Bail Appl. No. 7981 of 2018] f. Mohit Kumar v State NCT of Delhi BAIL APPLN. 457/2022
18. Per contra, learned APP appearing for the State opposed the grant of bail on the ground that severe offences under Sections 6, 10 & 12 of the POCSO Act and Section 354A of the IPC are alleged, and enlarging the applicant on bail would prejudice the trial.
19. Learned Counsel submits that the victim in her the statement recorded under Section 164 Cr.P.C., as also in her court deposition in the vulnerable witness room, has consistently maintained that the applicant sexually assaulted her on the alleged day of incident.
20. Learned Counsel further avers that the applicant knowingly and intentionally committed sexual assault upon the victim, who was around four years old at the time of the commission of the alleged offence (date of birth of the victim being 21.07.2016). It is further averred that the victim despised the applicant since he used to pinch her, touch her in the perineal region while giving her a bath due to which the victim used to feel pain and also threatened to beat her up if she disclosed about the same to anyone.
21. Learned counsel submits that the case is in initial stage of the trial and the applicant may threaten the witnesses, if released on bail.
22. Learned Counsel appearing on behalf of Respondent No.2/ complainant also vehemently opposes the present bail application submitting to the effect that the offence committed by the applicant is not only serious but heinous in nature and the complainant is under threat by the applicant and his family members to get the present FIR quashed and support the bail application of the applicant.
23. Learned counsel submits that the delay in registration of the present FIR was due to life threatening fear extended by the applicant to the life of the victim.
24. He further avers that the complainant made a complaint dated 28.11.2020 against the applicant after which she also gave a reminder dated 14.03.2021, which got the receiving on 19.03.2021. Consequently, the instant FIR got registered on 17.06.2021.
25. He further submits that the life of the victim and the complainant will be at risk, if the applicant is released on bail.
26. He also opposes the application on the ground that investigation qua FSL report of the voice sample with regard to the voice of the applicant in the alleged video is pending. Conclusion:
27. I have considered the arguments advanced by the parties.
28. From the perusal of the record, it is apparent that the applicant and the complainant / mother of the victim have a long history of matrimonial discord.
29. On 27.07.2019 and 31.07.2019, the complainant and the applicant had filed complaints against each other. The complainant had alleged that the applicant along with his father, sisters and friends forcefully entered the complainant’s parents’ house and abused and beat the complainant and her parents. The applicant had filed a complaint alleging that the complainant had broken the almirah and stolen the jewellery with the help of her mother and had locked the house after the applicant left for office.
30. On 26.08.2019, the complainant filed a complaint against the applicant and his family members before the CAW Cell. On 09.09.2019, the complainant gave an application to the Sub-Registrar, Geeta Colony, Delhi, for not allowing the applicant to sell the residential property.
31. On 16.09.2019, the applicant’s father filed a complaint with tke SHO, PS Ghazipur against the complainant for using disrespectful words.
32. On 30.09.2019, the complaint filed by the complainant before the CAW Cell was settled with the intervention of Delhi High Court Legal Services Committee (Mediation Centre).
33. It is mentioned that on 04.08.2020, the applicant filed a complaint against the complainant for being aggressive and creating disturbances in the house.
34. On 17.11.2020, FIR No. 481/2020 was registered against the applicant and his father wherein the complainant alleged that her Father-in-Law along with the applicant tried to sexually molest her.
35. On 18.11.2020, the applicant had filed a complaint against the complainant and her mother alleging that the complainant and her mother are threatening to file false case against the applicant and his father.
36. On 20.11.2020, a complaint under Section 12 of the Domestic Violence Act was filed by the complainant against the applicant and his family members.
37. On 28.11.2020, a complaint was given by the complainant against the applicant alleging the incident of 04.07.2020 which later culminated into FIR No. 256/2021, and is subject matter of the present application.
38. On 23.06.2021, FIR No. 264/2021 was registered against the applicant and his family members on a complaint given by the complainant alleging cruelty, demand of dowry and criminal breach of trust.
39. The investigation in the present case is complete, the chargesheet has been filed and charges have also been framed. The evidence of the victim and the complainant is also stated to have been recorded by the learned Trial Court.
40. The statement of the victim was recorded on 03.07.2021 under section 164 Cr.P.C. and the evidence of the victim has also been recorded on 02.12.2021 and 04.12.2021. The learned counsel for the applicant has contended that the language used in the allegations made by the victim is not easily understandable and states to be tutored evidence which has been placed on record.
41. The chargesheet has been filed, and charges have been framed under Sections 6, 10 & 12 of the POCSO Act, and Section 354A IPC. Therefore, application for Bail is required to be considered keeping in mind the provisions of Section 29 of the POCSO Act.
42. The Hon’ble Apex Court in State of Bihar v. Rajballav Prasad, in relation to offences under POCSO, had held that, while considering the application for bail at a post charge stage, the Court also has to consider the provisions of Section 29 of the POCSO Act. Section 29 reads as under:
43. On this point, this Court also refers to the view taken by a coordinate Bench of this Court in Dharmander Singh @ Saheb v. The State (Govt. of NCT, Delhi), where the court had considered the aspect of presumption provided in Section 29 of the POCSO Act. It was held that while considering the application for bail even at a stage 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. The Court, therefore, is required to evaluate whether the evidence placed is credible or ex facie appears to support the case of prosecution.
44. Certain considerations that have to be kept in mind while deciding the application in relation to offences under POCSO Act are; the age of the minor victim vis-à-vis the age of the accused, the family relationship, if any, between the victim and the accused, whether the accused is a repeated offender, the chances of the accused threatening the victim after being enlarged on bail etc.
45. In the view of this Court, when tested on the considerations setout above, the circumstances of the present case would favour grant of bail to the applicant.
46. From the perusal of the chargesheet and the statement recorded, at this stage, it appears as under: a. The allegation of insertion of the applicant’s finger in the victim’s private part, which is the foundational basis for the offences under section 376AB of the IPC and section 6 of the POCSO Act, did not find any place in the FIR originally filed. b. Although the alleged incident took place on 04.07.2020, the complainant lodged the complainant against the applicant on 28.11.2020 pursuant to which the present FIR was registered on 17.06.2021. The said delay is unreasonable and there is no possible explanation with regards to the same. c. The medical examination of the victim, when conducted did not reveal anything since, the complainant had denied internal examination of the victim. d. After the alleged incident, the complainant lodged various other FIR’s bearing no. 481/2020 and 264/2021 against the applicant and his family members, dated 15.11.2020 and 23.06.2021 respectively at police station Ghazipur. The fact of matrimonial disputes between the applicant and the complainant for a relatively long period is undisputed and despite such disputes, the complainant continued to reside in the same property, albeit in different room. e. The applicant is in incarceration for more than two years and it is unlikely that the trial would be complete anytime soon. f. Even though it is alleged that the applicant has threatened the victim and the complainant and, if, enlarged on bail, would tamper with the evidence, or influence the witnesses, the same, however, can be taken care of putting strict conditions.
47. It has to be kept in mind that in cases where the victim is a child, her statement has to be scrutinized with great care and caution as children can be easily swayed away and are prone to tutoring. It can also be a possibility that the statement is made at the behest of one of the parents. It is the duty of the Court to also examine and analyse other corroborative evidence and circumstances which are important to the case (Ref.: Atender Yadav v State NCT of Delhi 2013 SCC OnLine Del 4322).
48. The allegations of such nature put the accused, especially if he happens to be a father, in such circumstances where he is looked down upon by society and has far reaching social consequences. The possibility of getting such complaint lodged, especially when the parents have history of matrimonial discord, cannot be ruled out. In the present case, as noted above, the parents of the victim have been at loggerheads and have filed multiple complaints against each other. The incident is stated to be of 04.07.2020 whereas the complaint for the first time was given on 28.11.2020. In between 04.07.2020 and 28.11.2020, another FIR was got registered at the instance of complainant against the applicant and his family where no such incident was mentioned. The applicant also in between that period had filed a complaint against the complainant and her mother wherein he alleged that the complainant is threatening of filing of false complaints against the applicant and his family. The complaint under Domestic Violence Act was also filed in between that period on 20.11.2020. No explanation has been given as to why the complaint for such a serious allegation was not made for such a long period of time. Merely, because Section 29 of the Act provides for a statutory presumption, the same does not bind the Courts to accept the prosecution version as gospel truth and the discretion in relation to grant of bail is still to be exercised considering the facts of the case.
49. It is not alleged that the applicant has been found at this stage to be tampering with the evidence. The evidence relied upon has already been made part of the complaint.
50. The consequences of pre-trial detention are grave, and the burden of such incarceration also causes a severe effect.
51. Considering the totality of facts and circumstances, and without any expression on the merits of the case, the present bail application is allowed; and the applicant is directed to be released on bail on furnishing a bail bond for a sum of ₹1,00,000/- with one surety of the like amount to the satisfaction of the learned Trial Court/ Duty Metropolitan Magistrate, subject to the following terms and conditions: i) The applicant shall upon his release provide his mobile number to the concerned IO / SHO and keep it switched on at all times and also drop google pin giving his location to the concerned IO; ii) The applicant shall not take unwarranted adjournment and attend the Trial Court proceedings on every date; iii) The applicant shall not leave the city without informing the concerned IO / SHO; iv) The applicant shall not in any manner contact the complainant/victim or any of the witnesses; v) The applicant shall not leave the country without permission of the learned Trial Court; vi) The applicant shall not reside or visit the locality where the victim resides; vii) The applicant is directed to furnish a proof of residence where he shall reside upon his release, which should be at least 5 KM far from the locality where the victim resides, subject to the satisfaction of the learned trial court.
52. In the event if the applicant is found to be violating any of the conditions, it would be open to the State to seek redressal by filing appropriate application for cancellation of bail.
53. It is also made clear that the observations made in the present case are only for the purpose of considering the bail application and should not influence the outcome of the trial and also not be taken as an expression of opinion on the merits of the case.
54. The present application is allowed in the aforesaid terms. AMIT MAHAJAN, J MARCH 3, 2023