Mohd. Niyaz Alam v. State

1. The petitioner has filed the present petition under Section 438 of the Cr.P.C. for grant of anticipatory bail to the petitioner in FIR No.212/2015 under Sections 363/366/376 of the Indian Penal Code, 1860 and Section 6 of the Protection of Children from Sexual Offences (POCSO) Act, 2012, registered at P.S. Anand Vihar Railway Station.

2. The brief facts of the case as per the status report are as under: “That on 01.12.2015, Sh. Sanjay Singh r/o village Narotapur, Lhakhi Sarai, Bihar, the complainant herein made a complaint at Police Station Anand Vihar Railway Station, Delhi with the allegations that on 27.05.2015, he was going to Bihar from village Nathopur with his family. Upon arriving at the Anand Vihar Railway Station, he purchased 4 general tickets from the ticket counter and reached at platform no. 2-3 to board the train. Since the train was late, he along with his family decided to take rest. At about 11:50pm, he woke up and found that his daughter was missing. Upon enquiry, he discovered that a boy of short 2019:DHC:6256 stature, wearing jeans and a shirt, took his daughter with him. The complainant searched the railway station but could not find his daughter. He then took 3 new tickets and left for Patna. Thereafter, he returned to Gurgaon to search for his daughter but failed to get to know her whereabouts. The complainant lodged an FIR no. 212/2015 under Section 363 IPC dated 01.12.2015 at Police Station Anand Vihar, Delhi. During the course of the investigation, the I.O. made all mandatory provisions for the search of the prosecutrix and the culprit but could not find them. The I.O. looked for the two persons at their native place as well but to no avail. It was also discovered by the I.O. that the accused Niyaz Alam had no previous criminal antecedents. On 29.11.2018, the petitioner filed a bail application before Additional Sessions Judge, Karkardooma Court and the Additional Sessions Judge passed an order giving interim protection to the accused from arrest. During investigation, accused Niyaz Alam told the I.O. that he performed Nikah (marriage) with the prosecutrix on 22.12.2016 and produced a photocopy of marriage certificate. The prosecutrix also produced a birth certificate of her baby boy. According to the birth certificate, the baby boy of prosecutrix namely Taufik Alam was born on 26.08.2018. The medical examination of the prosecutrix, accused and baby boy was conducted at L.B.S. hospital, Delhi and the I.O. collected the exhibits for the purpose of D.N.A. profiling from the medical officer. I.O. also verified the date of birth of prosecutrix from Principal, Kanya Madhya Vidhyalaya Narottampur, Kajra, Lakhisarai, Bihar. As per school record, the date of birth of prosecutrix Alisha Kumari is found as 24.07.2002. The sexual potency test of the accused was conducted on 29.11.2018 at LBS Hospital, Delhi. The medical officer opined that, “There is nothing to suggest that examined person is incapable to perform sexual intercourse.” On 30.11.2018, the statement u/s 164 Cr.P.C. of the prosecutrix was recorded by the Metropolitan Magistrate, Karkardooma Court. The Additional Sessions Judge, Karkardooma Court rejected the bail application of petitioner on 11.03.2019. While dismissing the bail application vide order dated 11.03.2019 observed that the prosecutrix has delivered a child on account of sexual intercourse done by the accused and that since the victim was a minor, offences u/s. 376 IPC and s.[6] POCSO Act were clearly made out. The court further stated that with respect to the consent of the victim, same had no value in the yes of the law as she was a minor at the relevant time.”

3. Learned counsel for the petitioner submitted that the investigation is complete and the victim had married the accused and they are now living together.

4. On the other hand, learned APP opposed the anticipatory bail application and submitted that the victim was minor and was only 13 years and 4 months old, as per school record, at the time of the alleged crime. Even otherwise, the offence under Section 9 of the Prohibition of Child Marriage Act, 2006 is made out against the petitioner.

5. Anticipatory bail may be granted when there is material on record to show that prosecution was inherently doubtful or where there is material on record to show that there is a possibility of false implication. However, when the element of criminality is involved and/or the custodial interrogation is required and/or the other aspects and facts are required to be unfolded in investigation, the applicant is not entitled for anticipatory bail.

6. It is also well-settled law that while considering the question of grant of anticipatory bail, the Court prima facie has also to look into the nature and gravity of the alleged offence and the role of the accused. The Court is also bound down and must look into, while exercising its power to grant bail, the antecedents of the applicant and also the possibility of the applicant fleeing from justice, apart from other factors and parameters in view of the facts of each and every case.

7. The Supreme Court in the matter of Dr. Subhash Kashinath Mahajan v. State of Maharashtra & Anr., in Criminal Appeal No.416/2018, decided on 20.3.2018, held as under: