Bail to be issued on the grounds of delay of filing the FIR and the improvements made by the complainants in subsequent statements : Delhi High Court

 IN THE HIGH COURT OF DELHI AT NEW DELHI BAIL APPLN. 2322 2021 IN THE MATTER OF: Date of decision: 02nd AUGUST 2021 DHARMENDRA BHATI@ KALU ..... Petitioner Through Mr. Salim Malik Advocate ..... Respondent Through Mr. Amit Chadha APP for the State with SI Naresh Kumar PS Pul Prahladpur along with Complainant in HON BLE MR. JUSTICE SUBRAMONIUM PRASAD SUBRAMONIUM PRASAD J. This petition under Section 439 Cr.P.C. is for grant of regular bail to the petitioner in FIR No. 206 2019 dated 03.10.2019 registered at Police Station Pul Prahladpur for offences punishable under Sections 323 354 B 452 506 509 34 IPC and Section 12 of the POCSO Act. The facts in brief leading to this bail application are as follows: a) On 14.08.2019 information regarding a quarrel was received at Police station Pul Prahladpur which was entered vide DD No.44 & 46A. On receiving the information ASI Rajbir Singh reached the spot and found that the injured had gone to the Hospital. On 15.08.2019 information was received from AIIMS Trauma Centre that one Shabir Ansari and his wife Ishrat Ansari both residents of C 33 E Chungi BAIL APPLN. 2322 2021 No.3 Lal Kuan Delhi had come to AIIMS Hospital for treatment. The said information was received vide DD No.9A. On receiving the information ASI Sher Singh reached AIIMS Trauma Centre and collected the MLCs of the victims being MLC No. 500188387 of Sabir Ansari and MLC No. 500188388 of Ishrat Ansari. b) After about one and a half months of the incident on 03.10.2019 the statement of the victims Ishrat Ansair and Sabir Ansari were recorded. In her statement Ishrat Ansari alleged that on 14.08.2019 the petitioner along with one Aryan Sonu & Sonu Tomar came to her house and they were carrying dandas & iron rods. It is stated that the accused persons entered into her house and said that her husband was destroying their livelihood by supplying water to the colony which had affected their business. It is stated that the petitioner who was carrying a danda started beating her husband. It is stated that other accused persons also started beating the husband of the complainant with kicks and punches. It is stated that when the complainant tried to save her husband the petitioner held her hand and pulled her. It is stated that the petitioner tore her clothes and pressed her breast in order to outrage her modesty. It is stated that when the complainant objected to it the petitioner and other accused persons started beating her. It is stated that when the complainant and her husband shouted for help all the accused ran away. It is stated that while the accused were going they threatened the complainants with dire consequences and they also threatened them stating that if they inform Police about the incident they would kidnap their children from school. On the basis of the statements FIR No. 206 2019 for offences punishable under BAIL APPLN. 2322 2021 Sections 323 354 B 452 506 509 34 IPC was registered on c) Material on record discloses that on the next day of registering the FIR i.e. on 04.10.2019 the statement of the daughter of the complainants was recorded wherein it was stated that the accused had threatened the child that they would rape her and only then her parents would understand. On the basis of the said statement offence under Section 12 of the POCSO Act was added. d) The petitioner was arrested on 16.01.2020 and he has been in judicial custody since then. e) The petitioner filed applications for bail before learned Additional Sessions Judge POCSO South East Saket Courts on 18.07.2020 03.02.2021 and 04.06.2021 which have been dismissed. f) The petitioner has thereafter approached this Court by filing the instant bail application. record. Heard Mr. Salim Malik learned counsel for the petitioner and Mr. Amit Chadha learned APP for the State and perused the material on The learned counsel for the petitioner contends that the FIR was registered after one and a half months of the incident. He contends that the FIR was initially registered under Sections 323 354 B 452 506 509 34 IPC and in the said FIR there is not a single averment that the petitioner and other assailants threatened the child. He states that the offence under Section 12 of the POCSO Act was added after the statement of the child was recorded on 04.10.2019. He states that the fact that there was an inordinate BAIL APPLN. 2322 2021 delay of one and a half months in recording the FIR is sufficient for the petitioner to be released on bail. He further states that the fact that even after one and a half months of the incident there was not even a whisper of any offence against the child and it was introduced by the statement of the child just after the registering of the FIR. He states that this gives rise to a strong suspicion that the complainants are trying to implicate the petitioners because of business rivalry. The learned counsel for the petitioner states that the petitioner is in custody since 16.01.2020 the charge sheet has been filed and therefore the petitioner be released on bail. Per contra Ms. Meenakshi Dahiya learned APP for the State contends that the petitioner is accused of a serious offence and the fact that there is a delay in filing the FIR cannot be a reason to grant bail to the petitioner. It is further contended by the learned APP for the State that the petitioner is involved in one similar case being FIR No. 762 19 registered at Police Station Surajkund for offences under Sections 323 452 506 376D 342 201 109 120B IPC. She also contends that if the petitioner is released on bail he would threaten the witnesses and therefore the petitioner ought not to be released on bail. The material on record indicates that on 14.08.2019 information was received about the incident. On 15.08.2019 the MLCs of the complainants were received by ASI Sher Singh and on 03.10.2019 i.e. after one and a half months of the incident the statements of the victims were recorded and the FIR was registered. The Status Report does not indicate or give any reason as to why there was a delay of one and a half months in recording the statements of the victims and getting the FIR registered. The FIR was registered on 03.10.2019 and the fact that the daughter of the complainants BAIL APPLN. 2322 2021 was threatened to be raped by the petitioner and other assailants was introduced in the complaint only on 04.10.2019. There is a lot of force in the statement made by the learned counsel for the petitioner that such a thing could not be missed by any parent in their first statement which was made after one and a half months of the incident. As rightly submitted by the learned counsel for the petitioner this is not a trivial issue which any parent would have forgotten while registering a complaint that too after one and a half months of the incident because by that time the complainants would have gained their composure. In any event the petitioner is accused of an offence punishable under Section 354B IPC for which the maximum punishment is seven years. For all other offences the punishment is less than seven years. The petitioner is in custody for the last 18 months. The fact that the petitioner is involved in another case being FIR No. 762 19 cannot be a ground to deny bail to the petitioner in the present case where the maximum sentence is seven years. Laying down the parameters for granting or refusing to the grant of bail in Prasanta Kumar Sarkar v. Ashis Chatterjee 14 SCC 496 the Supreme Court observed as under: “9. We are of the opinion that the impugned order is clearly unsustainable. It is trite that this Court does not normally interfere with an order passed by the High Court granting or rejecting bail to the accused. However it is equally incumbent upon the High Court to exercise its discretion judiciously cautiously and strictly in compliance with the basic principles laid down in a plethora of decisions of this Court on the that among other is well BAIL APPLN. 2322 2021 circumstances the factors to be borne in mind while considering an application for bail are: i. whether there is any prima facie or reasonable the accused had committed the offence to believe ii. nature and gravity of the accusation iii. severity of the punishment in the event of iv. danger of the accused absconding or fleeing if conviction released on bail v. character behaviour means position and standing of the accused vi. likelihood of the offence being repeated vii. reasonable apprehension of the witnesses being viii. danger of course of justice being thwarted by influenced and grant of bail. 10. It is manifest that if the High Court does not advert to these relevant considerations and mechanically grants bail the said order would suffer from the vice of non application of mind rendering it to be illegal.” This Court is of the opinion that the delay of one and a half months in filing the FIR the improvement made by the complainants in subsequent statements there is a reasonable ground to believe that the petitioner has not committed the offence punishable under Section 12 of POCSO Act. As stated earlier the petitioner is in custody for the last 18 months and the material on record reveals that the petitioner has roots in the society and there is no danger of the accused absconding or fleeing from justice. The charge sheet has been filed. The petitioner is in custody for the last 18 months. In view of the present pandemic it is unlikely that the trial will commence in the near future. Keeping all these facts in mind this Court BAIL APPLN. 2322 2021 is inclined to grant bail to the petitioner on the following conditions: The petitioner shall furnish a personal bond in the sum of ₹50 000 with one surety of the like amount who should be a relative of the petitioner to the satisfaction of the Trial The petitioner shall not leave NCT of Delhi without prior Court Duty Magistrate. permission of this Court. c) The petitioner shall report to the concerned Police Station every alternate day at 10:30 AM and should be released after completing the formalities within half an hour. d) The petitioner is directed to give all his mobile numbers to the Investigating Officer and keep them operational at all times. e) The petitioner has given his address in the memo of parties as HR 130 first floor Street No.6 Pul Prahladpur Delhi. The petitioner shall continue to reside at the same address. In case there is any change in the address the petitioner is directed to intimate the same to the IO. The petitioner shall not directly or indirectly tamper with evidence or try to influence the witnesses. g) Violation of any of these conditions will result in the cancellation of the bail given to the petitioner. It is made clear that the observations made in this order are only for the purpose of grant of bail and cannot be taken into consideration during the trial. BAIL APPLN. 2322 2021 11. Accordingly the bail application is disposed of along with the pending applications if any. SUBRAMONIUM PRASAD J. AUGUST 02 2021 BAIL APPLN. 2322 2021 

Summary: When a crime especially when it is of a violent nature, the law is very clear and instructive in order to protect the victims, however it also provides the accused equal opportunity to prove themselves innocent as law believes in “innocent until proven guilty”. This was held in the judgment passed by a single bench judge comprising HON’BLE MR. JUSTICE SUBRAMONIUM PRASAD, in the matter of DHARMENDRA BHATI V. STATE (BAIL APPLN. 2322/2021) dealt with an issue where the petitioner filed for grant of regular bail under Section 439 Cr.P.C against FIR filed for offences punishable under Sections 323/354- B/452/506/509/34 IPC and Section 12 of the POCSO Act. It is stated that the petitioner, who was carrying a danda, started beating her husband. It is stated that other accused persons also started beating the husband of the complainant with kicks and punches. It is stated that while the accused were going they threatened the complainants with dire consequences and they also threatened them stating that if they inform Police about the incident they would kidnap their children from school. On the basis of the statements, FIR No. 206/2019 for offences punishable Sections 323/354-B/452/506/509/34 IPC was registered on 03.10.2019. Record discloses that on the next day of registering the FIR, i.e. on 04.10.2019, the statement of the daughter of the complainants was recorded wherein it was stated that the accused had threatened rape against the child. On the basis of the said statement offence under Section 12 of the POCSO Act was added. The petitioner was arrested on 16.01.2020 and he has been in judicial custody since then. The counsel for the petitioner contends that the FIR was registered after one-and-a-half months of the incident. He contends that the FIR was initially registered under Sections 323/354-B/452/506/509/34 IPC and in the said FIR there is not a single averment that the petitioner and other assailants threatened the child. He states that the fact that there was an inordinate delay of one-and-a-half months in recording the FIR is sufficient for the petitioner to be released on bail. Ms. Meenakshi Dahiya, learned APP for the State contends that the petitioner is accused of a serious offence and the fact that there is a delay in filing the FIR cannot be a reason to grant bail to the petitioner. She also contends that if the petitioner is released on bail he would threaten the witnesses and therefore the petitioner ought not to be released on bail. After hearing both the parties The hon’ble Delhi High court allowed the petition and granted bail at a personal bond in the sum of ₹50,000/ due to the delay of one-and-a-half months in filing the FIR, the improvement made by the complainants in subsequent statements there is a reasonable ground to believe that the petitioner has not committed the offence punishable under Section 12 of POCSO Act.