Full Text
HIGH COURT OF DELHI
D A MINOR THROUGH HER MOTHER AND NATURAL GUARDIAN MRS. RUPI BABBAR .....Petitioner
Through: Mr. Gurmukh Singh Arora, Advocate
JUDGMENT
1. STATE (GNCT OF DELHI) Through Standing Counsel (Criminal) 437, Delhi High Court, New Delhi - 110003
2. MR.
RAJEEV BABBAR S/o Brij Mohan Babbar R/o Fl U Block, House No. 59, Pitampura, Maurya Enclave, Delhi.....Respondents Through: Mr. Sanjeev Bhandari, Ld. ASC for State with SI Meena, P.S. Maurya Enclave Mr. Shikhar Singh, Advocate for R-2 CORAM: HON'BLE MS.
JUSTICE NEENA BANSAL KRISHNA
JUDGMENT
NEENA BANSAL KRISHNA, J.
1. Writ Petition under Article 226/227 of Constitution of India has been filed for setting aside the Order dated 15.06.2021 vide which the Respondent No.2/Rajeev Babbar has been granted Bail in FIR NO. 0515/2021 registered under Sections 354/354A/377/323/376 of the Indian Penal Code, 1860 (hereinafter referred to as “IPC”) and Sections 6 and 10 of Prevention of Children from Sexual Offences Act, 2012 (hereinafter referred to as “POCSO Act”), P.S. Maurya Enclave, Delhi.
2. Briefly stated, the Petitioner ‘D’ is a minor girl of 16 years. She was a victim of grave sexual abuse, rape, harassment and violence by Respondent No. 2, her biological father since around 4 to 5 years. The Bail was granted to the Respondent No. 2 on 15.06.2021 by Ld. ASJ.
3. It is claimed that the Bail has been granted on entirely irrelevant material ignoring the gravity and the nature of the offences, which has left a very deep scar on the psyche of the Prosecutrix. The Bail has been granted against all the established canons of criminal jurisprudence. The Bail has been granted in less than 10 days of the arrest of Respondent No. 2 despite specific allegations in the Complaint which were fully corroborated in the statement under Section 164 Cr.P.C. The Bail ought to have been denied to Respondent No. 2.
4. The facts leading to the FIR are that the Respondent No. 2/Rajeev Babbar was married to Mrs. Rupi Babbar on 05.12.2003. Since the inception of the marriage, there was constant violence and physical, verbal, emotional and financial abuse. The Petitioner ‘D’ was born from their wedlock on 22.11.2004. She has a younger brother, aged about 9 years. Both the children have witnessed constant quarrel and abuse inflicted on their mother by their father.
5. Soon after the Petitioner ‘D’ attained puberty, she was touched inappropriately by Respondent No. 2. Sometime around the year 2016, when she was in Class VII, the Respondent No. 2 on various occasions pinched her buttocks and/or breasts. She opposed such acts which she strongly disliked. She made various complaints to her paternal grandparents who were residing with them, but were ignored.
6. On every occasion when she complained to her mother, it ended up in a big fight between the mother and the father, who would not only hurl abuses, but would also beat the mother severely. On every such occasion, the Respondent No. 2 made sure that the Petitioner saw him inflicting extreme pain on her mother, which further terrified the Petitioner, who was barely 12 years of age at that time.
7. This abuse continued for the next few years and the Respondent No. 2 threatened the Petitioner that if she told her mother, he would beat the mother and it would be her fault.
8. It is asserted that the Respondent No. 2 is an overly hyper sexual, sex addict and suffers from satyriasis and obsessed with watching pornographic material. In 2019, the Respondent starting forcing the Petitioner to watch pornographic material on his phone with him. She was afraid of the after effects of complaints to her mother and she endured it silently. She further claimed that such persistent was the sexual addiction of the father that even Google had sent an email/notice to the Respondent No.2, warning him about the sexual content in his account and also that it would be forced to close his account.
9. In the year 2018 when the Petitioner was in Class IX, she was having a leave for her first term examination and she used to study till late night and wake up in the morning. One such morning when she was asleep and the mother of the Petitioner was at her school, the Respondent No. 2 walked into her room and slipped his hand under the bedsheet and inside the pajama of the Petitioner. He then quickly massaged her private parts. She woke up screaming, upon which the grandparents walked in and started scolding the Petitioner by claiming that this was just a joke.
10. The last straw came when on the night of 20.06.2020, the Petitioner was having her periods. At around 10 PM, while going towards the washroom, the Respondent No. 2 came to her room and grabbed her from behind and slipped his hand under the panty and rubbed her private parts. He inserted his finger in her vagina to which she objected and screamed. She found it difficult to push away the Respondent No. 2. She was completely shaken and traumatized and spent the entire night crying alone. The next morning on 21.06.2020, she told her mother some part of the events of the previous night, which led to a huge fight between her parents. The Respondent No. 2 became enraged and hurled dirty and filthy abuses at the mother as well as gave her beatings. This left the Petitioner feeling even more hopeless and distressed.
11. Later in the night at around 1 AM, upon hearing loud and painful screams and cries of her mother, she walked into the room of her parents and saw him forcibly doing unnatural sex with her mother, while she was crying and screaming in pain. The Petitioner heard the Respondent No. 2 saying that since the mother of the Petitioner not making him happy, he has no other choice. To make things worse, upon hearing the screams and cries, the dada of the Petitioner came to the upper floor and walked into the parents’ bedroom and saw the horrific incident. The Petitioner's mother managed to cover herself with a bedsheet, but the grandfather (dada) refused to leave for the next 30 minutes and also started hurling abuses at her mother and beat her. The Petitioner and her mother managed to get out of the room and spent the entire remaining night crying.
12. On 22.06.2020, the maternal uncle (mama) of the Petitioner came and the Petitioner and her mother both left the house and moved to Kanpur.
13. The Respondent No.2 on 12.08.2020 visited Kanpur on the pretext of meeting the Petitioner and her brother, but took her brother away saying that he will bring him back after a few days. All the requests of the mother of the Petitioner fell on deaf ears of the Petitioner, who not only refused to return the son but also started arm-twisting the mother to return for the sake of their son.
14. The Petitioner’s mother filed a Petition under the Domestic Violence Act in Kanpur against the Respondent No. 2, which is pending adjudication.
15. In March 2021, the mother of the Petitioner, who is a school teacher, had to rejoin her teaching duties and thus, returned to Delhi along with the Petitioner and started residing in a rented accommodation.
16. Because of the trauma and the violence, studies of the Petitioner suffered and she became very quiet. On the suggestions of family members, mother of the Petitioner took her to a child Psychiatrist on 05.06.2021 in Pitampura. During the counselling session, the Petitioner broke down and for the first time narrated the horrifying and sordid details of her abuse by her father. The mother of the Petitioner, who herself was a victim of domestic violence, was not aware of the gravity of the abuse and particularly, about the details of the incident of 20.06.2020.
17. After counselling, the Petitioner gave a Written Complaint in the Police Station on the very next day i.e. 06.06.2021, on which the present FIR No. 515/2021, P.S. Maurya Enclave, was registered under Sections 354/354A/377 IPC and Section 10 of the POCSO Act.
18. After the statement of the Petitioner was recorded under Section 164 Cr.P.C., Sections 323/376 IPC and Section 6 of the POCSO Act were added.
19. The Respondent No.2 was arrested on 07.06.2021, after which he filed a Bail Application.
20. The Status Report was submitted on 15.06.2021 after which the impugned Bail Order dated 15.06.2021 was passed granting Bail to the Respondent No.2, which is based on entirely irrelevant and vague considerations, making some unwarranted observations and remarks.
21. It is further asserted that in the most bizarre and arbitrary manner, the Police who had seized the 02 mobile phones of the Respondent No. 2, returned the SIM cards to him. The said mobile phones have now granted unrestricted access to the perpetrator to all his accounts such as Google drive, Instagram, Facebook, WhatsApp, etc., and pornographic material, which he used to force the Petitioner to watch. The Petitioner apprehends that with access to the SIM cards, he must have already deleted/modified his accounts and all the incriminating material on his devices and other accounts.
22. It has also been reliably learnt that this was done at the behest of a high-ranking ACP of Delhi Police, who is the first cousin of the mother of the Respondent No. 2. Additionally, the Petitioner is being threatened by the IO and SHO of being arrested or harassed by issuance of NBWs in a completely insensitive manner.
23. The setting aside of the Bail Order is sought on the grounds that the gravity and nature of the offence has been totally overlooked. It was not a case for exercise of discretion for grant of Bail considering the sexual abuse and violence inflicted by the biological father on the Victim.
24. The irrelevant considerations which were not germane to the case, have been taken into consideration. The matrimonial dispute between the parents of the Petitioner had no role or bearing on the present case.
25. The high ranking ACP in Delhi Police, has used his influence to ensure the release of Respondent No. 2 which is fearful and demoralizing for the Petitioner ‘D’.
26. The Ld. ASJ has completely ignored the tests as laid down by the Supreme Court in cases of grant of Bail in a cognizable offence. These factors are:
(i) whether there is a prima facie or reasonable ground of the Accused having committed the offence,
(ii) the nature and gravity of the offence,
(iii) severity of the punishment if the Accused is convicted,
(iv) chances of the accused Absconding or fleeing away if given Bail,
(v) the character, behaviour, antecedents, means, position and standing of the accused in the society,
(vi) likelihood of the offence being repeated,
(vii) reasonable apprehension of the witnesses being tampered or investigations being interfered.
27. The Ld. ASJ has acted contrary to Section 29 POCSO Act which categorically provides that where a person is prosecuted for committing or abetting or attempting to commit any offence under Sections 3/5/7/9 POSCO Act, the Special Court shall presume that such person has committed or abetted or attempted to commit the offence, as the case may be unless the contrary is presumed.
28. The Ld. ASJ has acted in direct contravention of legislative intent of Section 30 POCSO Act, which states that for offence under this Act which requires a culpable mental state on the part of the Accused, it shall be presumed to be existing by the Ld. Special Judge.
29. The most crucial piece of evidence being the 02 mobile phones of the Respondent No.2 that was seized by the Police, have not been sent to the Forensics Lab; rather the SIM cards have been returned to the Respondent No. 2. The investigation is still incomplete and the CDRs of the Accused and his father, Brij Mohan should have been procured to demonstrate the calls made to higher Police officials.
30. Therefore, the impugned Order granting Bail to Respondent No.2 is perverse and is liable to be set aside.
31. The Respondent No. 2 in his Reply, has submitted that the present Petition has been filed with an aim to harass the Respondent No. 2 by misusing the provisions of law. It is an extortion tactic played at the hands of mother by using the minor daughter as a tool, which is liable to be dismissed on the ground of maintainability.
32. The Petitioner has not opted to exhaust proper remedies available in law. The Petition doesn't fall within the four squares entitling the revocation of the Order.
33. On merits, it is submitted that the Writ jurisdiction can be exercised only when it seeks enforcement of any Fundamental Right, where there is failure of principles of natural justice or where if the proceedings are wholly without jurisdiction or the vires of the Act is challenged. The present Writ Petition has miserably failed on all these three accounts and is liable to be dismissed.
34. The Petitioner was duly represented through Counsel. Ld. ASJ in the impugned Order, has discussed each and every aspect without crossing the jurisdiction and is not perverse, as claimed.
35. This Petition has been filed at the instance of her mother and is nothing but a mere eye wash to achieve her goals i.e. gain in matrimonial dispute by the mother herein from Respondent No. 2, both illegally and unethically.
36. The Petitioner has not approached the Court with clean hands and is trying to play a fraud through a cock and bull story which does not disclose the true, clear and correct facts. The Petition does not disclose about the Complaint filed before the National Commission for Women (NCW), and the subsequent Petition under Domestic Violence Act.
37. It is submitted that the present Petition is liable to be dismissed.
38. The Status Report dated 20.08.2025 has been filed on behalf of the State wherein the details of the investigations carried out in the case, has been detailed.
39. It was further submitted that the Respondent No. 2/Rajeev Babbar was arrested on 07.06.2021 and his medical examination was done at Baba Saheb Ambedkar Hospital, Delhi. Thereafter, on 08.06.2021, two mobile phones of Accused, were seized. His Potency Test was conducted at Baba Saheb Ambedkar Hospital, Delhi. Thereafter, he was remanded to Judicial Custody. During the course of investigation, mother of Victim ‘D’ produced a printout of email sent by Google to email ID of her husband. Bail was granted by the Ld. Trial Court on 15.06.2021.
40. During the further investigation, age proof of Victim has been obtained and her date of birth is 22.11.2004. The two mobile phones have already been sent to FSL, Rohini, Delhi.
41. Chargesheet has been filed in the Court on 27.07.2021. Charges were framed on 01.05.2024. There are total 14 Prosecution witnesses, though till date, no witness has been examined.
42. The Ld. Counsel for the Petitioner has argued that despite such serious allegations of sexual abuse over a period of 5 to 6 years when the Petitioner was 10 to 15 years old, by Respondent No. 2, the biological father of the Petitioner, the Bail has been granted within 06 days of registration of FIR. Furthermore, the 02 mobile phones seized from the Respondent No. 2, had been sent to FSL from where the Report has been received, which is in favour of the Prosecution. Supplementary Chargesheet has already been filed.
43. So much so, the child was so traumatised that she had to be taken to a Psychiatrist, who has confirmed about the mental trauma suffered by the Prosecutrix.
44. Reliance has been placed on the case of Bhagwan Singh vs. Dilip Kumar @ Deepu @ Deepak and Anr, 2023 INSC 761; Rupi Babbar vs. State NCT of Delhi, Crl. MC. 5329/2024 (2024:DHC:7124) and Sh. Krishan Kumar vs. State of NCT of Delhi, Bail Application 1507/2020 (2020:DHC:3026).
45. It is submitted that considering the severity of the allegations and the seriousness of offence, Bail must be recalled.
46. The Ld. Counsel for the Respondent No. 2 has argued that the Respondent No. 2, the biological father of the Prosecutrix, has serious matrimonial dispute as is also evident from the averments made in the Petition. The mother has already filed Petition against him under Domestic Violence Act. Now the child has been used as a tool to arm twist the husband.
47. It is vehemently denied that any such crime as alleged, ever took place. The incident according to the Prosecutrix, happened over the period of 5 to 6 years, but the FIR has been registered only in 2021. There is an inordinate delay in reporting the alleged offence, which clearly smells of mala fide and fabrication in making the allegations.
48. The Ld. ASJ has considered all the aspects and has passed a reasoned Order. There is no ground for recalling the Bail Order. Submissions heard and record perused.
49. It is an unfortunate case of physical and sexual exploitation of the Petitioner by none other than her own father, since she was about 10 years old, when she attained puberty. The Petitioner’s young age and vulnerability, combined with her father’s abusive and violent behaviour towards both her and her mother, prevented her from disclosing the ongoing abuse. The persistent atmosphere of fear at home prevented the Petitioner to confide in her mother or seek help from any other person.
50. Before considering the contentions on merit, it is significant to observe that there is a distinction between Revocation and Cancellation of Bail. While Revocation can be made only if it is established that Bail has been granted by not considering the relevant facts on merits, Cancellation is prompted by subsequent events and violation of terms of Bail by the Respondent.
51. In recent judgement of Ashok Dhankad vs. State of NCT of Delhi and Another, 2025 SCC OnLine SC 1690, Apex Court reiterated that while considering as to whether bail ought to be granted in a matter involving a serious criminal offence, the Court must consider relevant factors like the nature of the accusations made against the accused, the manner in which the crime is alleged to have been committed, the gravity of the offence, the role attributed to the accused, the criminal antecedents of the accused, the probability of tampering of the witnesses and repeating the offence, if the accused are released on bail, the likelihood of the accused being unavailable in the event bail is granted, the possibility of obstructing the proceedings and evading the courts of justice and the overall desirability of releasing the accused on Bail.
52. The Apex Court in Y vs. State of Rajasthan, (2022) 9 SCC 269 underscored that an order granting bail can be tested on illegality, perversity, arbitrariness and being based on unjustified material. While setting aside the order granting bail, the Court made the following observations highlighting the distinction between recall and cancellation of bail:
granted because the accused has misconducted himself or of some supervening circumstances warranting such cancellation have occurred is in a different compartment altogether than an order granting bail which is unjustified, illegal and perverse. If in a case, the relevant factors which should have been taken into consideration while dealing with the application for bail have not been taken note of, or bail is founded on irrelevant considerations, indisputably the superior court can set aside the order of such a grant of bail. Such a case belongs to a different category and is in a separate realm. While dealing with a case of second nature, the court does not dwell upon the violation of conditions by the accused or the supervening circumstances that have happened subsequently. It, on the contrary, delves into the justifiability and the soundness of the order passed by the court.”
53. Three-Judge Bench of Apex Court in P vs. State of M.P., (2022) 15 SCC 211 has explained the considerations that must weigh with the Court for interfering in an order granting bail to an accused under Section 439(1) CrPC as under:-
54. In the recent case of Ajwar vs.Waseem, (2024) 10 SCC 768, it was observed as under:
court. If there are serious allegations against the accused, even if he has not misused the bail granted to him, such an order can be cancelled by the same Court that has granted the bail. Bail can also be revoked by a superior court if it transpires that the courts below have ignored the relevant material available on record or not looked into the gravity of the offence or the impact on the society resulting in such an order.”
55. It has been further observed in Ajwar (supra):
56. In the recent judgement of Ashok Dhankad, (supra), the Apex Court has succinctly explained and summarized the factors for consideration for setting aside of Bail Orders as under:
(v) However, the Court may not take the conduct of an accused subsequent to the grant bail into consideration while considering an appeal against the grant of such bail. Such grounds must be taken in an application for cancellation of bail; and
(vi) An appeal against grant of bail must not be allowed to be used as a retaliatory measure. Such an appeal must be confined only to the grounds discussed above.”
57. In the light of aforesaid principles, the contentions raised in the present Petition be now considered.
58. It is the assertion of the Petitioner that whenever she tried to inform about her sexual abuse to her paternal grandparents who were residing with them, she met with a reprimand and they were not inclined to believe her. There cannot be anything more grave than a child being abused by her own father, who gave her birth and holds the pious duty and responsibility of ensuring her safety.
59. Likewise, the threats of subjecting the mother to further physical abuse, also desisted her from narrating the complete incidents to her mother. As per the Prosecutrix, when she partially narrated the incident to her mother, the mother was severely beaten by Respondent No.2, thereby reinforcing her hesitation to disclose the abuse.
60. In the entire Complaint, details of specific incidents have been mentioned and it contains glaring incidents of blatant sexual abuse of a child. The gravity of the offence cannot be overlooked and ignored merely by terming it as an outcome of the matrimonial dispute between the Respondent No. 2 and his wife.
61. Significantly, the child has made specific allegations that her father was a sex addict and used to compel her to see with him the pornographic films on his mobile phone. Prima facie, these allegations have been corroborated from the FSL Report of the mobile phone, which has confirmed about the obscene videos being present in the mobile phone. There cannot be anything more perverse and shocking that such acts of the father, if found to be correct and true.
62. The Petitioner has specifically averred that during the investigations, undue favour was being extended to the father at the instance of a Senior ACP in Delhi Police, who happened to be the first cousin of mother of the Respondent No. 2. This again has found its manifestation in grant of Bail barely within 06 days of registration of FIR.
63. The Ld. ASJ had referred to the Complaint written by the mother of the Petitioner to National Commission for Women wherein no such incidents were mentioned. Subsequently, the matter was compromised between the parties. Thereafter, the Petition under the Protection of Women from Domestic Violence Act was filed in February 2021, wherein the Petitioner was also a party, but no such allegations found mention.
64. There cannot be anything more distorted than this contention, as the Complaint was filed by the mother and not by the Petitioner before the National Commission for Women. Also, the child has stated that it took her a long time to disclose the entire incident in detail to her mother because of the prevailing family circumstances, where the mother was being traumatised and abused and had been compelled to leave the matrimonial home. Likewise, the Petition under the Protection of Women from Domestic Violence Act was filed by her mother and not on behalf of her daughter and therefore, the allegations made therein may not have been pertinently disclosed.
65. Also, according to the Complainant, she disclosed in detail about her persistent abuse only in June, 2021 to a Psychiatrist to whom she was taken as she had become absolutely quiet and disturbed. The mother who filed the Petition under the Protection of Women from Domestic Violence Act in February, 2021, was apparently not even aware of the abuse of daughter. Therefore, the Ld. ASJ made an absolutely erroneous observation that the incidents of sexual abuse of the daughter were not mentioned in the DV Petition filed by the mother.
66. Furthermore, the Bail has been granted within 06 days of registration of FIR by observing that the investigation was complete in the case, is again completely erroneous. The Status Report shows that the investigations were still ongoing.
67. Further factor which weighed with the Ld. ASJ for granting the Bail was that the allegations are not recent one and have been happening for the last one year. Despite the allegations being so serious, no Complaint was ever made to any authority or relative or before NCW or in DV Act while continuing to live in the same house, was considered one of the factors for grant of Bail.
68. It has been completely overlooked that according to the Prosecutrix, she was being subjected to such depraved acts of her father for last about five years, since she was about ten years old. Merely because they separated about a year before the registration of FIR, would not take away the acts of alleged sexual abuse over a period of time.
69. In addition, Ld. ASJ had further noted that in June 2020, the Complainant and her mother had left the matrimonial home and went to stay in U.P. with the maternal grandparents. Since the Complainant or the mother was not living with the Applicant, there was no likelihood of any threat or coercion by the Respondent No. 2 or his family. However, these observations are again misplaced since the trauma and the vulnerability of the Prosecutrix and the perpetrator being none other than her father, has been completely over-looked. These circumstances could not have been a ground of Bail, considering the gravity of the allegations.
70. The Ld. ASJ further noted that Google had purportedly served the Notice on the Accused, which was yet to be verified and is a matter of investigation/trial, which will take long. However, where the allegations are of such serious nature where the Accused is alleged to be a sex addict, habituated to watching pornographic videos while also to compelling the Petitioner to watch the same, it was imperative to first verify the veracity of said Notice. It also reflects that the investigations were not complete, as noted by Ld. ASJ.
71. It is a case where there are not only serious allegations made by the Petitioner/Victim of sexual assault since the age of 10 to 15 years, but there is also some evidence by way of the videos recovered from the mobile phone of the Accused, to lend credits to her averments. Also, the Petitioner had made specific allegations of there being a physical abuse of the mother, which used to scare and terrify her and prevented her from disclosing the entire incidents to her mother, which also finds corroboration in the Complaint filed by the mother to NCW and the Complaint under DV Act.
72. In the light of the aforesaid discussion, it is evident that the Ld. ASJ has failed to consider the material facts and the aspects and has granted Bail on erroneous and misplaced grounds. Clearly, Bail within 09 days of registration of the FIR in such a serious offence crime where the investigation was yet in progress, was completely misplaced.
73. Therefore, the impugned Order granting Bail to Respondent No.2/Rajeev Babbar, is set aside. His Bail bond and Surety Bond stand cancelled. The Respondent No. 2 is directed to surrender before the Ld. ASJ within 07 days.
74. The order be communicated to the Ld. ASJ to ensure its compliance.
75. Accordingly, the present Petition along with pending Applications, stand disposed of.
JUDGE SEPTEMBER 16, 2025 N