Anil Kumar v. State of NCT of Delhi and Anr

Judgment delivere LN. 97/2023 MAR .. Through: Mr. M.K. Perwez, A Versus NCT OF DELHI AND ANR .. Through: Mr. Hemant Mehla, A MR. JUSTICE VIKAS MAHAJAN JUDGMENT JAN, J. (ORAL) t petition has been filed under Section 4 nnection with FIR No.21/2021 under Sec CSO Act registered at Police Station Ranj facts of the case are that a statement w ein she alleged that she was in a relat past two years. The petitioner called her el Nagar at his friend's house and est the victim against her wishes. The pros became pregnant and the child had to be a the aforesaid FIR. counsel for the petitioner invites the atte f the victim dated 23.01.2021 recorded u NEW DELHI ed on: 01.03.2024 ... Petitioner dv. ... Respondents APP for State. 439 CrPC seeking ction 376 IPC and jit Nagar. was made by the tionship with the and took her to a ablished physical secutrix, who was aborted, this led to ntion of the Court under Section 164 CrPC to contend th voluntarily establi that in yet another she has stated tha wishes to marry th

¶4He submits t two young persons invoked in the pres

¶5The learned to the statement of victim in her exa

05.04.2003 and cross-examined by of birth in the scho

¶6He submits

05.04.2003 as sta prosecutrix was ab

12.12.2020.

¶7He submits testimony of the v possibility of the p on bail. He submit have criminal reco

¶8In the backd the petitioner may

¶9Per contra, hat the victim has clearly stated in her state shed physical relationship with the petiti statement of the victim recorded under S at she does not want any case against t he petitioner. that it is a case of consensual romantic rela s and the provisions of POCSO Act ough sent case. counsel for the petitioner invites the atte f the victim, who was examined as PW-1, t amination-in-chief has stated that her she has reiterated the same even y the learned APP. Further, she has also s ool certificate i.e. 24.06.2005 is incorrect. that in case the date of birth of the prose ated by her in her testimony, it clearly bove 17 years of age at the time of all that the petitioner is in custody since 24 victim has already been recorded, there petitioner influencing the victim in the ev ts that the petitioner has clean antecedent ord. drop of the aforesaid circumstances, he ur be enlarged on bail. the learned APP has argued on the li ement that she had ioner. He submits Section 164 CrPC, the petitioner and ationship between t not to have been ntion of the Court to contend that the date of birth is when she was stated that her date . ecutrix is taken as y shows that the leged incident on

4.08.2021 and the efore, there is no vent he is enlarged ts and he does not rges the Court that nes of the Status Report. He furthe consent was imma

¶10I have hear learned APP for th

¶11A perusal o she has clearly sta and the petitioner registered against the petitioner.

¶12Undoubtedly age of the prosecu the fact that though same time it cann intellectual capacit will.

¶13This Court i Application 2729/ protect the children never meant to crim individuals.

¶14This Court "Dharmander Sin that after the charg POSCO Act, the t case, the Court has accused person und er submits that since the victim was a mi aterial. rd the learned counsel for the petitioner he State and have perused the record. f victim's statements under Section 164 ated that the physical relationship establi r was consensual and she does not wan the present petitioner, rather she is inter y, there is material on record to prima faci utrix was about 17 years of age. This Cou h the prosecutrix was minor at the time of not be overlooked that she was of suffic ty and she joined the company of the peti in "Ajay Kumar vs State Govt. of NCT /2022 observed that the intention of PO n below the age of 18 years from sexual ex minalise consensual romantic relationship is also conscious of the fact that a Coo ngh vs. State" 2020 SCC OnLine Del 12 ges are framed, because of the impact of threshold for granting the bail will be h s laid down the contours within which bail der the POCSO Act is to be considered. Th inor, therefore her r, as well as, the CrPC shows that ished between her nt any case to be rested in marrying ie indicate that the urt is cognizant of incident but at the cient maturity and itioner at her own and Anr" in Bail OCSO Act was to xploitation. It was ps between young ordinate Bench in 267, has observed Section 29 of the higher. In the said l application of an he relevant part of the decision reads "74. As alw the golden p therefore, a been frame threshold o this means i prosecution law, more fa requiring pr or whether weight of gu xxxx "77. Thoug length of se intent and p special statu a bail plea quality of th real life co balance aga a. the age heinous th b. the age the offenc c. the com age differ alleged; d. the fa accused : alleged; e. whethe and/or br f. the cond g. whethe as under:- ways, when faced with such dilemma, the principle of balancing rights. In the opin t the stage of considering a bail plea af ed, the impact of section 29 would onl f satisfaction required before a court g is that the court would consider the evide along with the charge-sheet, provided i avorably for the prosecution and evaluat roof of evidence, whether the evidence so it ex facie appears that the evidence wi uilt. xxxx xxxx gh the heinousness of the offence allege entence after trial, in order to give due purpose of the Legislature in engrafting ute to protect children from sexual offence at the post-charge stage, in addition t he evidence before it, the court would also onsiderations, illustrated below, which ainst or in favour of the accused: e of the minor victim : the younger the he offence alleged; e of the accused : the older the accused, ce alleged; mparative age of the victim and the accuse rence, the more the element of perversi milial relationship, if any, between th : the closer such relationship, the more o r the offence alleged involved threat, intim rutality; duct of the accused after the offence, as a er the offence was repeated against the v court must apply nion of this court fter charges have ly be to raise the grants bail. What ence placed by the it is admissible in te, though without placed is credible ill not sustain the xxxx ed will beget the weightage to the section 29 in this es, while deciding to the nature and o factor in certain h would tilt the victim, the more the more heinous ed : the more their ion in the offence e victim and the odious the offence midation, violence alleged; victim; or whether the accuse h. whethe would hav the access i. the com would giv position to j. whether the accus unholy, ph k. whethe consent-in l. whether other per real-life c

¶78The ab from exha egregiousn balance wo myriad fac cast in ston section 29. subjective when a bai the above a

¶15However, at the victim were un were also known t

¶16Though the construed as conse Section 164 CrPC such physical relat between the petitio ed is a repeat offender under the POCSO er the victim and the accused are so placed ve easy access to the victim, if enlarged o s, greater the reservation in granting bail mparative social standing of the victim and ve insight into whether the accused is o subvert the trial; r the offence alleged was perpetrated wh sed were at an age of innocence : an hysical alliance may be looked at with les er it appears there was tacit approval-in n-law, for the offence alleged; r the offence alleged was committed alo rsons, acting in a group or otherwise; considerations. bove factors are some cardinal considera austive, that would guide the court i ness of the offence alleged; and in decidi ould tilt. At the end of the day however cets and nuances of real-life situations, i ne all considerations for grant or refusal The grant or denial of bail will remain, satisfaction of a court; except that in vi il plea is being considered after charges h additional factors should be considered." t this stage, it is relevant to note that both nmarried and were almost of marriageable o each other since both belong to Bihar. consent of the victim for the physical r ent-in-law but the statements of the victi C shows there was an express or tacit ap tion. Thus, it appears to be a case of a rom oner and the victim at an age of innocence Act or otherwise; d that the accused on bail : the more l; d the accused : this in a dominating hen the victim and innocent, though ss severity; n-fact, though not one or along with m. other similar ations, though far in assessing the ng which way the r, considering the it is impossible to l of bail in light of as always, in the iew of section 29, have been framed, " the petitioner and age. Further, they relation cannot be m recorded under pproval-in-fact for mantic relationship e.

¶17Further the p no more required. therefore, there is n is enlarged on bail

¶18It is also not or he has criminal

¶19The object o during the trial wh

¶20Considering view that the pet Accordingly, the p Personal Bond in amount to the sati subject to the follo a) Petitioner taken up for b) Petitioner number to t condition at without prio c) Petitioner communicat

¶21The petition

¶22It is clarified limited purpose of be construed as an petitioner is in custody since 24.08.2021 The testimony of the victim has alread no basis for any apprehension that in the ev l, he will try to influence the victim. t the case of the prosecution that the petitio record. of judicial custody is to secure the presen hich can be ensured by putting appropriate g the aforesaid circumstances in entirety, t titioner has made out a case for grant petitioner is enlarged on bail subject to the sum of Rs. 20,000/- and one Surety sfaction of the Trial Court/CMM/Duty M owing conditions:- r shall appear before the Court as and w r hearing. r shall provide his permanent address, as w the IO concerned. The mobile shall be t all times and he shall not change the or intimation to the Investigating Officer c r shall not indulge in any criminal activ te with or come in contact with the witne n stands disposed of. d that the observations made herein abov deciding the present bail application and n expression of opinion on the merits of th and his custody is dy been recorded, vent the petitioner oner is a flight risk nce of the accused e conditions. this Court is of the t of regular bail. o his furnishing a y Bond of the like Magistrate, further when the matter is well as, his mobile e kept in working e mobile number concerned. vity and shall not sses. ve are only for the the same shall not he case.

¶23It is made c expression of opin

¶24Copy of the for necessary comp

¶25Order dasti

¶26Order be up MARCH 01, 2024 clear that nothing stated above is to be nion on the merits of the case. order be forwarded to the concerned Jail pliance and information. under signatures of the Court Master. loaded on the website of this Court. VIKA 4/dss e construed as an l Superintendent AS MAHAJAN, J

* IN THE % + BAIL APPL ANIL KUM STATE OF CORAM: HON'BLE VIKAS MAHAJ 1. The present regular bail in con Section 4/6 of POC 2. The brief f prosecutrix where petitioner for the p room in East Pate relationship with t minor at that time b the registration of 3. The learned to the statement of HIGH COURT OF DELHI AT