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Delhi High Court - Orders

Arvind Kumar vs State on 1 June, 2020

Author: Anup Jairam Bhambhani

Bench: Anup Jairam Bhambhani

   $~5
                                                           via Videoconferencing

   *         IN THE HIGH COURT OF DELHI AT NEW DELHI

   +         BAIL APPL. No.350/2020

             ARVIND KUMAR                                     ..... Petitioner
                         Through:           Ms. Anushree Kapadia, Advocate
                                            with Mr. Ashutosh Ghade, Advocate.

                               Versus

             STATE                                            ..... Respondent
                               Through:     Mr. Raghuvender Verma, APP for the
                                            State.
                                            Ms. Supriya Juneja, Advocate for the
                                            Complainant.
             CORAM:
             HON'BLE MR. JUSTICE ANUP JAIRAM BHAMBHANI
                          ORDER

% 01.06.2020 Crl. M.(B) No.6353/2020 (for interim bail) The applicant is an undertrial in case FIR No.115/2018 dated 10.05.2018 under sections 376/506 IPC and section 6 of POCSO Act registered at PS: Sarita Vihar, to which section 354-D IPC was also added subsequently.

2. Notice in the main Bail Application No.350/2020 was issued on 06.02.2020, which application is still pending.

3. Thereafter, the applicant moved the present application seeking interim bail on medical grounds; in which notice was issued on 27.05.2020. Status report, medical status report and updated nominal roll have since been filed.

4. Ms. Anushree Kapadia, learned counsel for the applicant submits that the applicant has been in judicial custody since 10.05.2018 and has accordingly spent more than 2 years in custody. Counsel further submits that in the status report, apart from reciting the allegations contained in the FIR, the State has only said that charges have been framed against the applicant under section 376(2)(i)/354D/506 IPC and section 6 of the POCSO Act vide order dated 23.05.2019, which are very serious in nature ; that the victim/prosecutrix has supported the prosecution case in her statement recorded on 20.07.2019 ; that important witnesses are yet to be examined; and that therefore, the applicant may try to influence the victim and witnesses, if released on bail.

5. Furthermore, Ms. Kapadia points-out that medical status report dated 25.05.2020 furnished by the jail authorities confirms that the applicant is a follow-up case of Asthma and has been repeatedly reporting to the jail dispensary with complaints of cough with sputum, generalised body-ache and breathing difficulties. At times he has complained of chest pain and breathlessness and has also been provided with an inhaler. Ms. Kapadia also avers that inmates and police officials in the same barrack in which the applicant is held, have been found to be COVID-19 'positive'.

6. Counsel contends that charge-sheet in the matter was filed on 07.06.2018; that supplementary charge-sheet was filed on 26.07.2018 with FSL reports dated 22.06.2018 and 13.03.2019 which do not support the prosecution's case; that charges have been framed on 23.05.2019 ; and that the testimony of the Bail App No.350/2020 Page 2 of 6 prosecutrix was recorded on 20.07.2019 and that of her mother was recorded on 03.03.2020.

7. Ms. Kapadia states that a complaint made earlier of threats having been extended by, or on behalf of, the applicant to the prosecutrix and her family, have been found to be baseless inasmuch as in status report dated 30.10.2018 it has been expressly recorded that when the prosecutrix's mother was examined pursuant to such complaint, she stated that no such threats have been received on 22.07.2018, although in the complaint made vidé DD No.16B on 04.08.2018, there was an allegation of intimidation on 22.07.2018. It is stated that police have accordingly found no substance in the allegations so made.

8. Ms. Supriya Juneja, learned counsel for the complainant however states that there is risk of threats and intimidation by the applicant since he resides in the same area as the prosecutrix; that as per the recommendations made by the High Powered Committee of the Delhi High Court in its minutes dated 18.04.2020, undertrials facing charges under sections 4 & 6 of the POCSO Act should not be considered for interim bail; that several witnesses in the matter are yet to be examined; and that the next date fixed in the matter is 26.06.2020.

9. Mr. Raghuvender Verma, learned APP for the State has relied upon the contents of the status report; has submitted that the applicant is accused of heinous offences; and that therefore he does not deserve any indulgence from this court.

10. In order to allay the main fear expressed on behalf of the prosecutrix as well as the apprehension of the State, counsel for the applicant is willing to give an undertaking that if granted bail, the applicant would make arrangements to reside at a far-off place around Badarpur Border; and will not at all visit the locality where the prosecutrix and her family reside.

11. Considering the applicant's medical condition, which is confirmed by the medical status report, which shows that the applicant suffers from chronic respiratory illness; and therefore that the threat to the applicant's health in the prevailing times of COVID-19 pandemic is real and imminent; and in view of the assurance extended on behalf of the applicant that he shall make arrangements to reside at a place far from where the prosecutrix and her family reside, this court is persuaded to grant the applicant interim bail for a period of 45 (forty-five) days from the date of his release, subject to the following conditions:

(i) The applicant shall furnish a personal bond in the sum of Rs.25,000/- to the satisfaction of the Jail Superintendent.

Considering the prevailing lockdown, the furnishing of surety bond as a condition of bail, is dispensed with at this stage ;

(ii) The applicant shall not leave the National Capital Region without permission of the court and shall ordinarily reside at a place of residence, as assured, far from the place of residence of the prosecutrix and her immediate family; and the complete address of such place shall be furnished Bail App No.350/2020 Page 4 of 6 to the Jail Superintendent at the time of release ;

(iii) The applicant shall make a video-call every Friday between 11 am and 11:30 am to the Investigating Officer, and in case the Investigating Officer is not available, then to the SHO PS : Sarita Vihar and also 'drop-a-pin' on Google Maps, so that the IO/SHO can verify the applicant's presence and location. Counsel for the applicant has confirmed that the applicant has the wherewithal to comply with this condition;

(iv) The applicant shall furnish to the Investigating Officer/ SHO a cellphone number on which the applicant may be contacted and shall ensure that the number is kept active and switched-on at all times ;

(v) If the applicant has a passport, he shall also surrender the same to the Jail Superintendent upon revocation/easing of the prevailing lockdown;

(vi) The applicant shall not contact nor visit nor threaten nor offer any inducement to the first informant/complainant or any of the prosecution witnesses. The applicant shall not tamper with evidence nor otherwise indulge in any act or omission that would prejudice the proceedings in the matter;

(vii) Upon expiry of the period of interim bail, the applicant shall surrender before the concerned Jail Superintendent.

12. Application stands disposed of.

13. A copy of this order be sent to the Jail Superintendent.

14. List on 20th July 2020.

15. The date of 16.06.2020 fixed in the matter earlier, stands cancelled.

ANUP JAIRAM BHAMBHANI, J JUNE 01, 2020 Ne Bail App No.350/2020 Page 6 of 6