Delhi High Court - Orders
Faizal (In Judicial Custody, Through ... vs State (Nct Of Delhi) And Anr on 25 September, 2023
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* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ BAIL APPLN. 501/2023
FAIZAL (IN JUDICIAL CUSTODY, THROUGH PAROKAR)
..... Petitioner
Through: Mr. Vaibhav Mehra, Adv.
versus
STATE (NCT OF DELHI) AND ANR. ..... Respondents
Through: Ms. Richa Dhawan, APP with Insp.
Amarjeet Singh, P.S. Hazrat
Nizamuddin
CORAM:
HON'BLE MR. JUSTICE VIKAS MAHAJAN
ORDER
% 25.09.2023
1. The present petition has been filed under Section 439 Cr.P.C. seeking regular bail in connection with FIR No. 0295/2018 under Sections 363 IPC registered at P.S. Hazrat Nizamuddin.
2. The case of the prosecution is that the present petitioner on 21.10.2018 had taken the prosecutrix to his home in Sultanpuri where he established sexual relationship with her on the promise of marriage. It is further alleged that sexual relationship was further established by the petitioner with the prosecutrix on 22.10.2018 and then again on 23.10.2018 at Roorkee. On the basis of complaint made by the father of the prosecutrix, the FIR came to be registered under Section 363 IPC.
3. During investigation, offence under Section 376 IPC and Section 6 of This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 27/09/2023 at 23:15:09 POCSO Act were added.
4. The learned counsel appearing on behalf of the petitioner submits that the testimony of the prosecutrix has been recorded by the learned Trial Court and the prosecutrix has not supported the case of the prosecution.
5. He invites the attention of the court to the testimony of the prosecutrix recorded on 23.09.2023, a copy of which has been handed over in court today and the same is taken on record. The relevant part of prosecutrix's testimony reads as under:-
"It is correct that when I came back to my home on 23.10.2018, I met one aunty from NGO who tutored me to give the statements against accused and she also threatened me that if I do not give the statement as per tutoring, me and my family would be implicated in a case. It is correct that when I went for MLC even then that aunty from NGO pressurized me to give the statements against the accused."
"Court question: Today you are deposing that accused had not committed any wrong with you but in your examination you have deposed that accused had made sexual intercourse with you. Please explain the same.
And. He had not committed any wrong with me from 21.10.2018 to 23.10.2018 and only at the tutoring of aunty from NGO, I had wrongly stated to the IO as well as to the court that accused had committed sexual intercourse with me."
6. The learned counsel also invites the attention of the Court to the FSL Report (DNA) dated 04.06.2019 to contend that the DNA profile of the petitioner is not matching with that of the prosecutrix. The relevant part of the DNA profile reads as under:-
"DNA EXAMINATION The exhibits '9', '10', '11', '12', & '15' (Swabs & slides), This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 27/09/2023 at 23:15:09 '16'(Sanitary pad), '18b'(Panty), & '19' (Gauge cloth piece) were subjected to DNA isolation. DNA was isolated from the source of exhibits '9', '10', '11', '12', '15', '16', '18b', & '19'. Global filer kit was used for PCR amplification and Data was analysed by using gene Mapper ID-X Software.
Female DNA profile was generated from the source of exhibits '9', '10', '11', '12', '15', '16', & '18b'. However Male DNA profile was generated from the source of exhibit '19'.
RESULTS DNA profile generated from the source of exhibits '9', '10', '11', '12', & '15' (Swabs & Slides of victim), '16' (Sanitary Pad), & '18b' (Panty of Victim) are matching with each other."
7. In view of the above, the learned counsel appearing on behalf of the petitioner urges that the petitioner be enlarged on bail.
8. Per contra, the learned APP argues on the lines of the status report. She fairly concedes that the prosecution has not supported the case of the prosecution. She also concedes that the DNA report also does not indicate the matching of profile of the petitioner with that of the prosecutrix, which were sent to FSL.
9. I have heard the learned counsel for the petitioner, as well as, the learned APP for the State and have perused the record.
10. This court is cognizant of the fact that since the charges have been framed by the learned Trial Court, the threshold of satisfaction required would be higher while considering the bail application of the petitioner in view of the impact of Section 29 of the POCSO Act.
11. A co-ordinate bench of this court in Dharmander Singh v. State,2020 SCC OnLine Del 1267, while considering the effect of Section 29 of the This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 27/09/2023 at 23:15:09 POCSO Act, when an application for bail is to be considered after framing of charges, laid down as under:
"74. As always, when faced with such dilemma, the court must apply the golden principle of balancing rights. In the opinion of this court therefore, at the stage of considering a bail plea after charges have been framed, the impact of section 29 would only be to raise the threshold of satisfaction required before a court grants bail. What this means is that the court would consider the evidence placed by the prosecution along with the charge-sheet, provided it is admissible in law, more favorably for the prosecution and evaluate, though without requiring proof of evidence, whether the evidence so placed is credible or whether it ex facie appears that the evidence will not sustain the weight of guilt.
12. The Court further enumerated certain real life considerations, any one or more of which if exists in a particular case, are ought to be considered while deciding a bail plea at the post-charge stage, in addition to the nature and quality of the evidence before it. The relevant part of the judgment reads as under:
77. Though the heinousness of the offence alleged will beget the length of sentence after trial, in order to give due weightage to the intent and purpose of the Legislature in engrafting section 29 in this special statute to protect children from sexual offences, while deciding a bail plea at the post-charge stage, in addition to the nature and quality of the evidence before it, the court would also factor in certain real life considerations, illustrated below, which would tilt the balance against or in favour of the accused:
a. the age of the minor victim: the younger the victim, the more heinous the offence alleged;
b. the age of the accused: the older the accused, the more heinous the offence alleged;
This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 27/09/2023 at 23:15:09 c. the comparative age of the victim and the accused: the more their age difference, the more the element of perversion in the offence alleged;
d. the familial relationship, if any, between the victim and the accused: the closer such relationship, the more odious the offence alleged;
e. whether the offence alleged involved threat, intimidation, violence and/or brutality;
f. the conduct of the accused after the offence, as alleged;
g. whether the offence was repeated against the victim; or whether the accused is a repeat offender under the POCSO Act or otherwise;
h. whether the victim and the accused are so placed that the accused would have easy access to the victim, if enlarged on bail: the more the access, greater the reservation in granting bail;
i. the comparative social standing of the victim and the accused: this would give insight into whether the accused is in a dominating position to subvert the trial;
j. whether the offence alleged was perpetrated when the victim and the accused were at an age of innocence: an innocent, though unholy, physical alliance may be looked at with less severity;
k. whether it appears there was tacit approval-in-fact, though not consent-in-law, for the offence alleged;
l. whether the offence alleged was committed alone or along with other persons, acting in a group or otherwise;
m. other similar real-life considerations.
78. The above factors are some cardinal considerations, though far This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 27/09/2023 at 23:15:09 from exhaustive, that would guide the court in assessing the egregiousness of the offence alleged; and in deciding which way the balance would tilt. At the end of the day however, considering the myriad facets and nuances of real-life situations, it is impossible to cast in stone all considerations for grant or refusal of bail in light of section
29. The grant or denial of bail will remain, as always, in the subjective satisfaction of a court; except that in view of section 29, when a bail plea is being considered after charges have been framed, the above additional factors should be considered.
13. The very fact that the petitioner has not supported the case of the prosecution and has categorically deposed that the petitioner had not committed any wrong with her from 21.10.2018 to 23.10.2018 and that she had been tutored by an aunty from NGO, coupled with the fact that the DNA profile of the petitioner did not match with that of the prosecutrix as per the FSL Report (DNA), has the effect not only of meeting the higher threshold but of corroding the case of the prosecution to an extent, though it is for the learned Trial Court to deal with the probative value of the above factors at an appropriate stage.
14. However, at this stage while considering the application for bail, the above factors cannot be completely overlooked by the Court.
15. That apart, there are other factors which are to kept in mind at this stage. There are 20 witnesses cited in the charge-sheet, out of which only 02 have been examined and 18 witnesses are yet to be examined. Evidently, the trial is likely to take long time and the petitioner cannot be kept in custody for indefinite period.
16. In so far as the presence of the petitioner during the trial is concerned, the same can be secured by putting appropriate conditions. In the status report it is not the case of the prosecution that the petitioner will tamper with the This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 27/09/2023 at 23:15:09 evidence or will influence the witnesses, if enlarged on bail.
17. It is also not the case of the prosecution in the status report that the petitioner has a criminal record.
18. Considering the aforesaid facts, I am of the view that the petitioner has made out a case for grant of regular bail. Accordingly, the petitioner is admitted to regular bail subject to his furnishing a Personal Bond in the sum of Rs.25,000/- and one Surety Bond of the like amount subject to the satisfaction of the learned Trial Court/CMM/Duty Magistrate, further subject to the following conditions:-
a) Petitioner will not leave the city without prior permission of the Court.
b) Petitioner shall appear before the Court as and when the matter is taken up for hearing.
c) Petitioner shall provide his mobile number to the IO concerned which shall be kept in working condition and he shall not change the mobile number without prior intimation to the Investigating Officer concerned.
d) Petitioner shall not indulge in any criminal activity and shall not communicate with or come in contact with the victim/complainant or any family members of the victim/complainant.
19. Nothing stated above shall be construed as an expression of opinion on merits of the case.
20. The petition stands disposed of.
21. Copy of the order be forwarded to the concerned Jail Superintendent for necessary compliance.
22. Order be uploaded on the website of this court.
This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 27/09/2023 at 23:15:10
23. Order dasti under the signature of Court Master.
VIKAS MAHAJAN, J SEPTEMBER 25, 2023/N.S. ASWAL This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 27/09/2023 at 23:15:10