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Rakesh Kumar vs State Nct Of Delhi on 8 May, 2020

Author: Prateek Jalan

Bench: Prateek Jalan

$~10
*    IN THE HIGH COURT OF DELHI AT NEW DELHI

+      BAIL APPLN.800/2020

       RAKESH KUMAR                                          ..... Petitioner
                   Through:              Ms. Geeta Luthra, Senior Advocate
                                         with Ms.Shivani Luthra Lohia,
                                         Sr.Advocate    with     Ms.Asmita
                                         Narula, Advocate.

                                  versus

       STATE NCT OF DELHI                                  ..... Respondent
                     Through:            Ms.Neelam Sharma, APP for the
                                         State with SI Amit and Mr.Ashish
                                         Singh, SOS, Children's Village,
                                         Bawana with the prosecutrix.

CORAM:
HON'BLE MR. JUSTICE PRATEEK JALAN

                          ORDER

% 08.05.2020 CRL.M.A.Nos.5925/2020 (exemption from filing certified copies of annexures) Exemption allowed, subject to all just exceptions. The application is disposed of.

CRL.M.A.Nos. 5926/2020 (exemption from filing duly affirmed affidavit) Exemption allowed, upon learned counsel for the petitioner undertaking to make good the defects within two weeks after resumption of the regular functioning of the Court.

The application stands disposed of.

1. This application has been filed by the applicant/petitioner, who is undergoing trial in the case arising out of FIR No.14/2014 under Sections 323 & 376 of the Indian Penal Code, 1860 ["IPC"], Section 23 of the Juvenile Justice (Care and Protection of Children) Act, 2000 ["JJ Act"] and Section 6 of the Protection of Children from Sexual Offences Act, 2012 ["POCSO Act"], registered at Police Station Anand Parbat, Delhi. The petitioner is accused of offences under the POCSO Act against his niece [the daughter of his wife's sister], who was living with the petitioner and his wife. The trial in the case has been completed and the judgment reserved.

2. The grounds upon which the present application for interim bail has been moved is that the petitioner's father Sh. Hari Prasad has died on 08.04.2020 by drowning in a river near his residence in Purela Khan Milki Pur Village, Kurwa, Ambedkar Nagar, Uttar Pradesh-224153.

3. An earlier application for interim bail on this ground, made by the petitioner [BAIL APPLN. No.773/2020], was dismissed by this Court on 15.04.2020. The Court inter alia observed that the petitioner had been unable to place on record any material to establish the factum of death of his father. Against the aforesaid order, the petitioner approached the Supreme Court in SLP (Crl.) Diary No.10972/2020. By an order dated 24.04.2020, the Supreme Court permitted the petitioner to withdraw the special leave petition with liberty to approach the High Court, as the petitioner was now in a position to produce authentic material in support of the plea regarding the death of his father.

4. Pursuant to the liberty granted by the Supreme Court, the present application for bail has been filed. Notice was issued in the application on 27.04.2020, and the respondent was directed to verify the facts regarding the death of the petitioner's father and file a verification report. The nominal roll of the petitioner was also requisitioned from the Jail Superintendent.

5. The respondents have filed a status report dated 05.05.2020. It is noticed in the status report that the facts regarding the death of the petitioner's father have been confirmed by the local authorities. However, it is also mentioned that the petitioner is one of four brothers, and the last rites of the petitioner's father have already been performed. The nominal roll of the petitioner filed by the jail authorities records that he has been in custody since 08.01.2014, i.e. for a period of over six years, and that his overall conduct in jail has been satisfactory.

6. Ms.Neelam Sharma, Additional Public Prosecutor for the State, opposed the grant of interim bail to the petitioner. The prosecutrix has also been given notice of this application and has, through Ms. Sharma, opposed the petition.

7. Ms. Sharma opposes the grant of interim bail on the ground that the petitioner has been accused of serious offences under POCSO Act. She submits that the release of the petitioner on bail at this stage, when the last rites of his father have already been performed, would be inappropriate, particularly in a situation where the judgment of the Trial Court has been reserved. Ms. Sharma also submits that the petitioner is one of four sons of his mother, two of whom are with the mother at present. The fourth son has not attended any of the ceremonies in the BAIL APPLN.800/2020 Page 3 of 6 wake of the death of the petitioner's father.

8. Ms. Geeta Luthra, learned senior counsel for the petitioner, submits that the petitioner has been in custody for over the last six years. The factum of his father's death and place of residence of his family have not been disputed by the State in the status report. The conduct of the petitioner in jail has also been found to be satisfactory. She states that the petitioner's wife - Smt. Meena Devi, who is on bail in relation to the same offence, has been attending the proceedings regularly and has not misused the liberty granted to her. She submits that in these circumstances, the petitioner may be granted a short period of interim bail to enable him to meet with his family in the wake of his father's death. Ms. Luthra points out that out of the four sons, two sons are of Sh. Hari Prasad, including the petitioner herein, and two are the sons of his mother from her first husband - who was also the brother of Sh. Hari Prasad. She submits that although the cremation of Sh. Hari Prasad has been conducted by one of the stepbrothers, the other rites and ceremonies associated with the death have not been performed, awaiting the arrival of the petitioner.

9. I am of the view that, in the facts and circumstances aforesaid, the petitioner may be released on interim bail to attend his native place and remain with his family for a short period in the wake of the death of his father. The fact that the cremation has already taken place is not conclusive, particularly in view of Ms. Luthra's submission that other rites and ceremonies are yet to be performed. The trial having already been concluded, there is also little apprehension that the petitioner would be able to tamper with the evidence or influence witnesses.

10. In these circumstances, the petitioner is released on interim bail for a period of two weeks from the date of his release, subject to the following conditions:

(a) The petitioner shall furnish a personal bond in the sum of ₹30,000/- to the satisfaction of the Jail Superintendent. In view of the present lockdown arising out of the outbreak of the Covid-19 pandemic, the furnishing of a surety bond as a condition for bail is dispensed with for the present.

(b) The petitioner shall be entitled to travel to his native place in Village Purelal Khan Milki Pur, Kurwa, Ambedkar Nagar, Uttar Pradesh - 224153. However, once he reaches his native place, he shall not leave his village under any circumstances. He is further required to remain present in his house, except if necessary for participating in the last rites of his father.

(c) The petitioner shall inform the SHO, PS Anand Parbat, Delhi of his mobile number, which will be kept switched on and in workable condition at all times. The petitioner will ensure that he is always at a place where network is available, so that he is reachable on the phone.

(d) Every day, the petitioner shall make a video call to the SHO, PS Anand Parbat between 11:00 am to 12:00 noon, and also drop a pin on Google Maps, so that his presence and location can be verified by the SHO. Ms. Luthra and Ms. Sharma confirm that the petitioner and the SHO have the necessary wherewithal to comply with this condition.

(e) The petitioner will not indulge in any act or omission which would BAIL APPLN.800/2020 Page 5 of 6 prejudice further proceedings in the matter.

(f) Upon expiry of the period of two weeks as stated above, the petitioner shall surrender before the Jail Superintendent.

11. Ms.Sharma states that the travel of the petitioner from the jail to his native village will be facilitated in accordance with the recommendations of the High Powered Committee, constituted by the Supreme Court for this purpose.

12. The order be communicated to the Jail Superintendent by e-mail.

13. The bail application is disposed of.

PRATEEK JALAN, J MAY 08, 2020 'hkaur' BAIL APPLN.800/2020 Page 6 of 6