BAIL APPLN./97/2023 of ANIL KUMAR Vs STATE OF NCT OF DELHI AND ANR

*INTHEHIGHCOURTOFDELHIATNEWDELHI

%Judgment delivered on: 01.03.2024

+BAIL APPL

ANIL KUM..... PetitionerThrough:Mr. M.K. Perwez, Adv.VersusSTATE OFNCT OF DELHI AND ANR..Through:Mr. Hemant Mehla,

CORAM:HON'BLEMR. JUSTICE VIKAS MAHAJAN

JUDGMENT

VIKAS MAHAJAN, J. (ORAL)

1.The presentpetition has been filed under Section 4regular bail in connection with FIR No.21/2021 under SecSection 4/6 of POCSO Act registered at Police Station Ranj2.The brief facts of the case are that statement wprosecutrix wherein she alleged that she was in relatpetitioner for the pand took her to aroom in East Paterelationship with tast two years. The petitioner called herl Nagar at his friend’s house and esthe victim against her wishes. The prosminor at that time became pregnant and the child had to be aablished physicalecutrix, who wasborted, this led tothe registration ofthe aforesaid FIR.3.The learnedto the statement ofcounsel for the petitioner invites the atte the victim dated 23.01.2021 recorded untion of the Courtnder Section 164

CrPC to contend that the victim has clearly stated in her statevoluntarily established physical relationship with the petitithat in yet anotherstatement of the victim recorded under Sshe has stated that she does not want any case against twishes to marry thment that she hadoner. He submitsection 164 CrPC,he petitioner andtionship between

4.He submits tatwo young personst not to have beeninvoked in the pres and the provisions of POCSO Act oughent case.5.The learnedto the statement ofcounsel for the petitioner invites the atte the victim, who was examined as PW-1, tntion of the Courto contend that thevictim in her examination-in-chief has stated that herdate of birth is05.04.2003andshehasreiteratedthesamewhenshecross-examined byeven the learned APP. Further, she has also sof birth in the school certificate i.e. 24.06.2005 is incorrect.

6.He submitsthat in case the date of birth of the prose05.04.2003 as stated by her in her testimony, it clearlyprosecutrix was above 17 years of age at the time of all12.12.2020.

7.He submitsthat the petitioner is in custody since 24testimony of the victim has already been recorded, therepossibility of the petitioner influencing the victim in the evon bail. He submits that the petitioner has clean antecedenthave criminal reco8.In the backdrd.rop of the aforesaid circumstances, he urthe petitioner maybe enlarged on bail.9.Per contra,the learned APP has argued on the lines of the Status

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Report.He further submits that since the victim was miconsent was imma

10.I have hearrlearned APP for the State and have perused the record.

11.A perusal oshe has clearly staf victim’s statements under Section 164ted that the physical relationship establiand the petitioner was consensual and she does not wanregistered againstthe present petitioner, rather she is interCrPC shows thatshed between hert any case to beested in marryingthe petitioner.

12.Undoubtedly, there is material on record to prima facieage of the prosecutrix was about 17 years of age. This Cou indicate that thert is cognizant ofthe fact that thoughsame time it cann the prosecutrix was minor at the time ofot be overlooked that she was of sufficintellectual capacity and she joined the company of the petiincident but at theient maturity andtioner at her ownwill.

13.This Court in “Ajay Kumar vs State Govt. of NCTand Anr”Application 2729/2022 observed that the intention of POprotect the children below the age of 18 years from sexual exnever meant to criminalise consensual romantic relationshipindividuals. in BailCSO Act was toploitation. It wass between youngrdinate Bench in

14.This Courtis also conscious of the fact that Coo“Dharmander Singh vs. State” 2020 SCC OnLine Del 1267, has observedthat after the chargPOSCO Act, the tes are framed, because of the impact ofhreshold for granting the bail will be hcase, the Court has laid down the contours within which bailaccused person under the POCSO Act is to be considered. ThSection 29 of theigher. In the said application of ane relevant part of

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the decision reads

as under:-

“74. As alwthe golden pays, when faced with such dilemma, therinciple of balancing rights. In the opincourt must applyion of this courttherefore, at the stage of considering bail pleabeen frame afd, the impact of section 29 would onlthreshold of satisfaction required before court gter charges havey be to raise therants bailthis means is that the court would consider the evideprosecutionalong with the charge-sheet, provided i. Whatnce placed by thet is admissible inlaw, more favorably for the prosecution and evaluate, though withoutrequiring proof of evidence, whether the evidence soor whetherplaced is crediblell not sustain theweight of guit ex facie appears that the evidence wiilt.xxxxxxxx

“77. Thougelength of seweightage to theintent and pspecial statuntence after trial, in order to give dueurpose of the Legislature in engraftingte to protect children from sexual offencea bail pleaat the post-charge stage, in addition tsection 29 in thiss, while decidingo the nature andquality of the evidence before it,real life co the court would alsonsiderations, illustrated below, which factor in certain would tilt thebalance against or in favour of the accused:

a. the agevictim, the moreheinous th

b. the agethe offenc

c. the comeage difference, the more the element of perversialleged;

d. the faaccused :milial relationship, if any, between th the closer such relationship, the more oalleged;

e. whether the offence alleged involved threat, intimand/or br

f. the conda

g. whether the offence was repeated against the v

the accuseh. whethed is repeat offender under the POCSOr the victim and the accused are so placedwould have easy access to the victim, if enlarged othe access, greater the reservation in granting baili. the comparative social standing of the victim andAct or otherwise; that the accusedn bail : the more; the accused : thiswould givposition to

j. whetherhthe accusunholy, phed were at an age of innocence : anysical alliance may be looked at with lesk. whether it appears there was tacit approval-inconsent-inl. whether-law, for the offence alleged; the offence alleged was committed aloinnocent, thoughs severity;-fact, though notne or along withother perm. other similarreal-life csons, acting in group or otherwise;onsiderations.

78.from exha The abtions, though farn assessing theegregiousnng which way thebalance woove factors are some cardinal consideraustive, that would guide the court iess of the offence alleged; and in decidiuld tilt. At the end of the day howevermyriad facets and nuances of real-life situations, icast in stone all considerations for grant or refusal, considering thet is impossible to of bail in light ofsection 29.The grant or denial of bail will remain,subjectivesatisfaction of court; except that in viwhen bail plea is being considered after charges has always, in theew of section 29,ave been framed,the above additional factors should be considered.”

15.However, atthe petitioner andthe victim were un this stage, it is relevant to note that bothmarried and were almost of marriageablewere also known to each other since both belong to Bihar.16.Though theconsent of the victim for the physical rage. Further, theyelation cannot beconstrued as conseSection 164 CrPCnt-in-law but the statements of the victi shows there was an express or tacit apsuch physical relation. Thus, it appears to be case of rombetween the petitioner and the victim at an age of innocencem recorded underproval-in-fact forantic relationship.

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17.Further the petitioner is in custody since 24.08.2021no more required.The testimony of the victim has alreadtherefore, there is no basis for any apprehension that in the evis enlarged on bail18.It is also not, he will try to influence the victim. the case of the prosecution that the petitioor he has criminal

19.The object onduring the trial which can be ensured by putting appropriate20.Considering the aforesaid circumstances in entirety, tview that the petitioner has made out case for grantAccordingly, the petitioner is enlarged on bail subject toPersonal Bond inthe sum of Rs. 20,000/- and one Suretyamount to the satisfaction of the Trial Court/CMM/Duty Msubject to the follo

a) Petitionerwtaken up for

b) Petitionerwnumber to the IO concerned.The mobile shall becondition at all times and he shall not change thewithout prior intimation to the Investigating Officer cc) Petitioner shall not indulge in any criminal activcommunicat21.The petition22.It is clarifiede with or come in contact with the witne stands disposed of. that the observations made herein abovsses.e are only for thelimited purpose ofbe construed as andeciding the present bail application and expression of opinion on the merits of ththe same shall note case.

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23.It is made clear that nothing stated above is to beexpression of opinion on the merits of the case.expression of opinion on the merits of the case.

24.Copy of theorder be forwarded to the concerned Jailfor necessary compliance and information.for necessary compliance and information.

25.Order dastiunder signatures of the Court Master.

26.Order be uploaded on the website of this Court.

S MAHAJAN, J

MARCH 01, 2024