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Nishant ..... Petitioner/ vs The State Nct Of Delhi on 29 September, 2020

Author: Anup Jairam Bhambhani

Bench: Anup Jairam Bhambhani

                                                       via Video-conferencing
$~4
*      IN THE HIGH COURT OF DELHI AT NEW DELHI

+      BAIL APPL. 1407/2020

       NISHANT                                       ..... Petitioner/Applicant
                                    Through :   Mr. Neeraj Anand, Advocate.

                           versus

       THE STATE NCT OF DELHI                          ..... Respondent
                          Through :             Ms. Neelam Sharma, APP for
                                                the State along with I.O./A.S.I.
                                                Chetan
                                                Complainant/Prosecutrix in-
                                                person.
       CORAM:
       HON'BLE MR. JUSTICE ANUP JAIRAM BHAMBHANI
                    ORDER

% 29.09.2020 The applicant, who is an under trial in case FIR No. 410/2019 dated 13.10.2019 registered under sections 363/376 IPC and section 6 of the POCSO Act at P.S.: Kanjhawala, Rohini, seeks regular bail.

2. Notice in this application was issued on 24.06.2020.

3. Status report dated 13.07.2020 has been filed. Nominal roll dated 06.07.2020 has also been received from the Jail Superintendent. The State has also placed on record the complainant's statement recorded on 14.10.2019 under section 164 Cr.P.C.

4. Mr. Neeraj Anand, learned counsel for the applicant has been heard at length in support of the bail application.

5. Ms. Neelam Sharma, learned APP for the State has argued opposing grant of bail.

6. The complainant/prosecutrix has also joined the video-conference hearing via an individual web-link, along with the new Investigating Officer/A.S.I. Chetan, P.S.: Kanjhawala. On being queried, it has been clarified, that in compliance with the law, earlier a lady police officer was the Investigating Officer in the matter; but after her transfer, since now there is no lady officer available in the police station, the matter has been marked to A.S.I. Chetan. However, it is stated that since charge sheet has already been filed in the case, no further investigation is required to be carried-out.

7. The court has interacted with the complainant; who says that she opposes grant of bail to the applicant since she fears he may threaten her once he is out of prison. But on being queried if any threat has been received from or on behalf of the applicant so far, the complainant has answered in the negative. The complainant also says that repeated dates in relation to various proceedings in the case, cause her anxiety, since she is unable to put the episode past her.

8. The essence of the allegation in the FIR was that the applicant had committed aggravated penetrative sexual assault against the complainant. Charge-sheet dated 09.12.2019 has since been filed on 11.12.2019 under section 360/376 IPC and section 6 of the POSCO Act.

9. From a perusal of the complainant's section 164 Cr.P.C. statement recorded before the learned Magistrate on 14.10.2019 it appears that the applicant and complainant had befriended each other on BAIL APPL. No. 1407/2020 Page 2 of 7 Instagram; subsequent to which, the complainant says, the applicant 'proposed' to her and she 'accepted'; whereafter they met in June 2019. Complainant alleges thereafter, that during the first meeting they only talked; but at the second meeting they engaged in "physical relation"; and that subsequently they engaged in "physical relations"

on four occasions. She further alleges that on 12.10.2019, she went to meet the applicant in the evening and since she did not return till late, her family lodged a missing person's report with the police. The complainant however offered no further statement or details to the Magistrate; and asked to be allowed to go home.

10. When queried if the complainant had given any details about the "physical relations' referred to in her section 164 Cr.P.C. statement, the State has drawn attention to MLC dated 13.10.2019, pointing-out that though the complainant's statement to the Magistrate is somewhat cryptic, the complainant had given a more detailed version to the doctor at the time of her medical examination. A copy of MLC dated 13.10.2019 has been forwarded by e-mail and has been perused. Let a copy of the MLC be brought on record.

11. A perusal of MLC dated 13.10.2019 shows, that in the more detailed account given to the doctor, she says that after she befriended the applicant on Instagram about one year back, she went to his flat where they "made repeated sexual contact". The MLC specifically records that the complainant informed the doctor that "All sexual contact was consensual" and that there was "No use of any alcohol/drug intoxication" though there was "Use of condom present in each sexual contact". The MLC also records that there was no history of BAIL APPL. No. 1407/2020 Page 3 of 7 any oral/anal sex; and no history of any physical assault or 'blackmailing'. The MLC does not record any injuries on the complainant.

12. As stated by the complainant in her 164 Cr.P.C. statement, on the date of the alleged offence, she had gone voluntarily to the applicant's place and stayed there till late in the evening without informing her family, which is why her family was constrained to file a missing person's report with the police. This further shows prima-facie that the interaction and relationship between the complainant and the applicant was evidently voluntary.

13. Status Report dated 13.07.2020 recites that the allegations against the applicant are serious and specific, including of "alluring the minor victim"; and it is pointed-out that the learned Sessions Court has dismissed two bail applications moved by the applicant in the past; while one was dismissed as withdrawn on 21.07.2020.

14. Nominal roll dated 06.07.2020 shows that the applicant has been in judicial custody since 14.10.2019, that is for almost 01 year; that his jail conduct is 'satisfactory'; and that there is no other or prior criminal involvement in any case.

15. While charge-sheet in the matter has been filed on 11.12.2019, Ms. Sharma informs the court that charges have not yet been framed and the next date of hearing in the matter is 07.10.2020.

16. In line with the opinion of this court in its judgment dated 22.09.2020 in Bail Appl. No. 1559/2020 titled Dharmander Singh @ Saheb vs. State, since charges in the matter have not been framed yet, accordingly section 29 of the POSCO Act has no application to the BAIL APPL. No. 1407/2020 Page 4 of 7 present bail application. The present bail plea would therefore be decided as per the otherwise settled principles with regard to grant or denial of bail in sexual offences.

17. As per the record, at the relevant time, the applicant was about 21 years of age, while the complainant was about 15 years old. In the bail application it is also stated that the applicant is a student, presently pursuing his III year of graduation.

18. Upon giving its anxious consideration to the foregoing facts and circumstances, what weighs with this Court is :

(a) firstly, that there appears to be no evidence of any force, violence or brutality involved in the alleged offence;

(b) secondly, the friendly relationship between the applicant and the complainant was evidently reciprocal; and as recorded in the MLC, the complainant has said to the doctor that all sexual contact with the applicant was consensual. While this court is conscious that where a minor is concerned there cannot be any consent in law, at least at the pre-trial stage when charges have not yet been framed, due weightage must be given to circumstances that clearly show that there was approval in fact for all acts that the complainant and the applicant indulged in, however unholy such acts may have been.

(c) thirdly, as recorded in the MLC, the complainant has also clearly told the doctor that there was no sexual assault nor any unnatural sex nor any 'black-mailing'; which attenuates the egregiousness of the offence alleged.

(d) fourthly, it cannot escape notice of the court that the complainant's statement under section 164 Cr.P.C. lacks any specificity as to the sexual act alleged, except to say that the parties indulged in "physical relations", without anything further.

(e) besides, the age gap between the complainant and the applicant is such that it cannot be said that the applicant was in a position of dominance over the complainant; nor was the complainant in a vulnerable position vis-a-vis the applicant; nor was she in a familial or other compelled relationship with the applicant. In fact the court is informed that the parties were not even neighbours and the complainant reached-out and met the applicant of her own free will.

19. It is noticed that while charge-sheet in the matter was filed on 11.12.2019, charges have still to be framed; and by reason of the restricted functioning of courts due to the prevailing coronavirus pandemic, it is unlikely that the trial will commence anytime soon.

20. Upon a conspectus of the foregoing facts and circumstances, this court is persuaded to admit the applicant to regular bail pending trial, subject to the following conditions:

(a) The applicant shall furnish a personal bond in the sum of Rs.30,000/- (Rupees Thirty Thousand Only) with 01 surety in the like amount from a family member, to the satisfaction of the learned trial court;

(b) The applicant shall furnish to the Investigating Officer/S.H.O. a cell phone number on which the applicant may be contacted at any time and shall ensure that the number is kept active and switched-on at all times;

(c) If the applicant has a passport, he shall surrender the same to the trial court and shall not travel out of the country without prior permission of the trial court;

(d) The applicant shall not contact, nor visit, nor offer any inducement, threat or promise to any of the prosecution witnesses or other persons acquainted with the case. The applicant shall not tamper with evidence nor otherwise indulge in any act or omission that is unlawful or that would prejudice the proceedings in the pending trial. More specifically, the applicant shall neither contact nor interact, whether directly or indirectly, with the complainant or her family, in any manner whatsoever.

21. Nothing in this order shall be construed as an expression on the merits of the pending matter. It is clarified that though, considering the sensitive nature of cases under the POCSO Act, this court has indicated some reasons for grant of bail in this case, let it be clear that what has been said above is not intended to be anything more than mere para-phrasing of the section 164 Cr.P.C. statement and of the contents of the MLC; and the trial court would not draw any inferences whatsoever from the above observations.

22. The bail application stands disposed of in the above terms.

23. Other pending applications, if any, also stand disposed of.

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

ANUP JAIRAM BHAMBHANI, J.

SEPTEMBER 29, 2020 hk/j BAIL APPL. No. 1407/2020 Page 7 of 7