The Delhi High Court on 5th April,2021 comprising of a bench of Honourable Chief Justice Subramonium Prasad while refusing the bail application remarked "The possibility of the petitioner putting pressure on the prosecutrix at this stage, if released on bail, cannot be ruled out. In view of the above this Court is not inclined to grant bail to the petitioner." ( Kashish Batra V. The State )
The Bench taking into account the seriousness of the offence of rap further noted, Child rape cases are cases of perverse lust for sex where even innocent children are not spared in pursuit of sexual pleasure. There cannot be anything more obscene than this. It is a crime against humanity.
Facts of the case
The petitioner had filed the instant petition under Section 439 of Criminal Procedure Code for seeking regular bail in FIR No.442 of 2020 under Sections 370, 370(A), 372, 374, 376, and 342 of Indian Penal Code and Section 6 of the Protection of Children from Sexual Offences Act 2012.
The prosecutrix was studying in 8th standard then and was on numerous occasions caught by her family talking and chatting to a boy named Nadeem. After her brother slapped her for the same on 11.07.2020 she angrily left her house and got into a battery rickshaw without any phone or money.
There she met Imrana who told her that she works for an NGO and took her to KNF Hotel, Gurgaon where Imrana and the petitioner drugged her and after she was semiconscious, the petitioner raped her. Later, Imrana sent her with Rashid who raped her. Then the prosecutrix ran away to Greater Noida where Mukesh gave her his phone and she spoke to Nadeem, who asked her to come to Meerut and later refused to keep her. Then Mukesh brought the prosecutrix back to Greater Noida where she spent 14 days with Mukesh and after that Her family was informed and her uncle took her back
home. On the said statement, FIR under Sections 370, 370(A), 372, 374, 376and 342 IPC and Section 6 of the POCSO Act was registered. The victim was given counseling by the Child Welfare Committee and in the report, new facts of sexual assault and Human Trafficking came to light.
The petitioner’s bail application was dismissed by Additional Session Judge hence he approached the HC under Section 439 CrPC for a grant of regular bail.
Contention of the parties
Mr. Abhijat, learned counsel appearing for the petitioner contended that the petitioner is in custody since 23.11.2020. He stated that the supplementary Charge-sheet has been filed. He also stated that the petitioner has roots in the society and that there is no apprehension that the petitioner will flee from justice if he is released on bail. He also stated that the petitioner cannot tamper with any evidence since the prosecutrix is under the care and custody of the Child Welfare Committee. It was stated that the petitioner is now not being called for any kind of investigation and hence there is no need for the petitioner to be kept in jail.
The learned counsel for the petitioner stated that continued custody will become punitive in nature and that is contrary to the law laid down by the Supreme Court. He stated that there has been inordinate delay in the filing of the FIR. He also stated that there are several discrepancies in the story of the complainant.
Learned counsel for the petitioner also stated that the petitioner was arrested on 23.11.2020. The charge-sheet was filed on 21.01.2021, that is after 59 days of the arrest and the Supplementary Charge-sheet has been filed just now. He would state that the petitioner was entitled for default bail. The learned counsel for the petitioner relied on the judgment dated 15.03.2021 passed by the Supreme Court in Fakhrey Alam v. The State of Uttar Pradesh, (CRL.A.319/2021), and contended that there can be only one charge-sheet and subsequent charge-sheets cannot enlarge the time and therefore the accused is entitled to default bail under Section 167 Cr.P.C.
The counsel stated that there are several contradictions in the statement of the prosecutrix. He stated that the petitioner should be released on bail.
On the other hand, Mr. Hirein Sharma, learned APP stated that the judgment of Supreme Court in Fakhrey Alam(supra) is distinguishable with the facts of this case.
He stated that in the said case the first charge-sheet was filed under Sections 420, 467, 468, 471, 120-B IPC and Sections 3, 25 and 30 of the Arms Act. Thereafter a second charge-sheet was filed under the UAPA Act beyond the period of 180 days. It was stated that in the fact of that case the Supreme Court held that there can be only one charge-sheet and granted bail to the appellant therein because the charge-sheet under the UAPA Act was filed beyond a period of 180 days. He stated that in the present case, charge-sheet was filed on 21.01.2021 and only the supplementary charge-sheet for the very same offences has been filed at a later point of time and therefore default bail cannot be granted to the petitioner herein. He stated that the prosecutrix was being forced intoflesh trade and the petitioner is accused of committing a heinous offence. He stated that there is likelihood of the petitioner putting pressure on the prosecutrix and tampering with evidence.
Courts Observation and judgment
The High court refuseing the petitioner's contention that there can be only one charge-sheet and subsequent charge-sheets cannot enlarge the time and therefore the accused is entitled to default bail under Section 167 CrPC remarked,
“In the present case the charge-sheet was filed on 21.01.2021. The investigation was completed and the ingredients of Section 167(1)(a), 167(2) read with Section 173(1)(a) CrPC has been met with and therefore the petitioner is not entitled to default bail.”
The Court observed that the “The seriousness of the offence of rape and its impact on the victim has as stated by the Supreme Court in Lillu v. State of Haryana (2013) 14 SCC 643 will be considered and the delay in filing the FIR cannot be said to be fatal to this case at this juncture while considering the application for bail.”
The Court stated that “The prosecutrix is only 16 years of age. She was given counseling. The report given by the Child Welfare Committee reveals that the accused were trying to put the prosecutrix into flesh trade and that she managed to escape. The call detail records of the accused Imrana and the petitioner corroborate the locations. As correctly observed by the Additional Session Judge, there is no reason forthcoming as to why the prosecutrix would falsely implicate the petitioner. There are sufficient materials in the charge sheet against the petitioner. The petitioner is accused of committing a heinous offense of rape on a child. The possibility of the petitioner putting pressure on the prosecutrix at this stage, if released on bail, cannot be ruled out.”
Then, the Court in light of this decision refused to grant bail to the petitioner and dismissed this petition, and directed the Trial Court to hear the case as expeditiously as possible and preferably within one year.
"However, the Trial Court is directed to hear the arguments on framing of charge and if charges are framed, examine all the public witnesses including the prosecutrix as expeditiously as possible and preferably within one year. Accordingly, the application is dismissed with the abovementioned observations."
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