Govind Ram v. State of NCT of Delhi

1. Second Bail Application under Section 483 read with Section 528 BNSS has been filed on behalf of the Applicant/Petitioner Govind Ram for grant of Bail in FIR No.0345/2023 under Section 8 of the Protection of Children from Sexual Offences Act, 2012 registered at Police Station Mehrauli, Delhi.

2. The Applicant has submitted that he is 64 years old, resident of Mehrauli, New Delhi. He has been working as a driver for more than 20 years and has no criminal antecedents. He was apprehended on 10.07.2023 for the offence under Section of POCSO Act and is in custody since then.

3. The brief facts are that a Complaint was lodged by the Complainant Smt. H that on 09.07.2023 at about 07:00 P.M while she was coming back home from her office, she saw the Applicant with the victim H. Both of them had allegedly pulled down their respective pants and knickers and were masturbating with each other. She confronted the Applicant and tried to catch hold of him, but he ran away. The neighbours informed that the Applicant was residing near the house of the Complainant. A PCR call was made and the Applicant was apprehended on 10.07.2023. His medical examination was got done.

4. The Bail is sought on the ground that the Applicant is in Judicial Custody since 10.07.2023 and he cannot be denied personal liberty by not granting him Bail. His conduct inside the Jail has been proper and no Complaints have been received. There is no probability of his tampering with the evidence. The conclusion of the trial would take some time and there is no likelihood of the Applicant evading the process of justice, if released on Bail.

5. Out of 15 Prosecution witnesses only five witnesses have been examined till date. The material witnesses i.e. the victim; his sister and the Complainant have all been examined. It is further submitted that there are material discrepancies in the statement of the Complainant who has been examined as PW[2]. All the public witnesses have been examined and there is no chance of tampering with the witnesses. Only the Police witnesses remained to be examined. Reliance is placed on Mukesh vs. State BAIL APPLN.2830/2021, Ravinder Kumar vs. State BAIL APPLN.35/2023, Avdesh vs. State BAIL APPLN.2858/2022, Ram Prasad vs. State NCT of Delhi BAIL APPLN.1923/2023.

6. It is further submitted that no CCTV footage has been recovered by the Police. The clothes of the Applicant and that of the victim have also not been seized. As per the Complainant, about 10-15 persons had gathered on the scene of crime, but no efforts had been made to record their statements. Further, as per the statement of the victim, he narrated the incident to his mother and father and Tauji, but none of them has been cited as prosecution witness. It is a case where the Applicant has been dragged into these proceedings out of personal spite of the Complainant. The case suffers from incomplete and faulty investigations. The Call Detail Records have also not been collected to prove the presence of the Complainant at the scene of crime.

7. The Applicant has been residing in the colony for more than 25 years and no previous Complaints have been brought on record against him of ever been engaged in any anti social activities. He has been falsely implicated because of the personal enmity of the Complainant who did not like the Applicant drinking alcohol with her husband and father-in-law. The false Complaint has been made to take revenge from the Applicant by making false allegations.

8. There was a delay in registration of FIR, which has not been explained. It is claimed that FIR was not registered initially indicating that the event is an afterthought and the possibility of the false implication by the victim cannot be ruled out.

9. Though, it had been observed by ld. ASJ while denying Bail that there is a possibility of the Applicant absconding and fleeing from justice and that he may threaten the family members of the victim and other witnesses, but it has no basis. Such bald allegations must not be accepted and the Prosecution ought to have placed on record some material to indicate these apprehensions stated against the Applicant.

10. Reliance is placed on Vipin Singh vs. State 2023 SCC OnLine Del 648, wherein it has been held that the allegation of the Applicant threatening the victim/prosecutrix and her family, is merely an apprehension without it being substantiated by any material and cannot be a ground to deny the Bail.

11. It is further submitted that the Applicant has not indulged in any delay tactics to prolong the trial or cause annoyance to the victim or the family members. There is no danger of his absconding or fleeing, if released on Bail. It is well settled that the seriousness of an offence cannot be the sole ground to deny the Bail. Reliance is placed on Sunder Singh Bhati vs. State 2022 SCC OnLine Del 134 in support thereof.

12. It is further submitted that while Section 29 engrafts a presumption of guilt against the Accused, but it also affords an opportunity to the Applicant to rebut this presumption by proving to the contrary. The Court cannot invoke half of the provision of Section 29, while ignoring the second half; much less to the detriment of the Applicant. The opportunity to prove his defence would arise only after the evidence of the Prosecution is concluded. It would be an anathema to fundamental criminal jurisprudence to ask the Accused to disclose his defence or to adduce evidence in his defence even before the Prosecution has marshalled its evidence. Section 29 cannot be applied in absolute terms while considering the bail Application without doing violence to ‘due process’ and ‘fair trial’ tenets read into Article 21 of Constitution of India. Reliance is placed on P. Chidmbaram vs. CBI (2020) 13 SCC 337.

13. It is further contended that there are material improvements and contradictions in the testimony of the Prosecution witnesses. Their statements have not been corroborated by any independent witnesses. The entire testimony of the Complainant is not only an afterthought, but has significant improvements thereby reflecting that she has not deposed about the correct facts. There are 15 Prosecution Witnesses out of whom only 5 witnesses have been examined. No progress in the case has been made in the last 10 months when no additional witness has been examined. The trial is likely to take considerable amount of time. It would not serve any purpose to deprive the Applicant of his fundamental right to liberty.

14. Hence, a prayer is made that he may be granted Bail.

15. Learned Counsel on behalf of the Petitioner has vehemently contended that the grounds of arrest have not been supplied to the Applicant. There is nothing on record to show that these grounds of arrest were either mentioned in the Remand Application or were considered by the Court while grant Remand or found any mention in the Case Diary or were ever supplied to the Applicant, either separately or in the Arrest memo. Serious fundamental rights of the Applicant have been violated entitling him to Bail.