Nidhi Puri vs State & Anr.
2020 Latest Caselaw 534 Del

$~57
*      IN THE HIGH COURT OF DELHI AT NEW DELHI

                                   Date of decision: 28th January, 2020

+      CRL.M.C. 470/2020
       NIDHI PURI                                          ..... Petitioner
                          Through:       Ms. Shilpi Jain, Advocate

                          versus

       STATE & ANR                                        ..... Respondent
                          Through:       Mr. Amit Chadha, APP for State

       CORAM:
       HON'BLE MR. JUSTICE SURESH KUMAR KAIT

                          J U D G M E N T (ORAL)

CRL.M.A. 1951/2020

1. Allowed, subject to all just exceptions.

2. Application stands disposed of.

CRL.M.C. 470/2020

3. Present petition is filed under Section 439 (2) of the Code of Criminal

Procedure Code, 1973 read with Section 482 of Code seeking cancellation

of bail order and modifying bail conditions in bail order dated 22.01.2020

passed by learned ASJ, Special Court (POCSO), Saket in FIR No.237/17

registered at P.S. Malviya Nagar, New Delhi, for the offences punishable

under Section 376 IPC and 6 POCSO Act.

4. The petitioner is a divorced lady of 45 years of age who is the

complainant in the aforesaid FIR and mother of 7 year old baby named „X‟

who is the alleged victim of rape, when she was 4 years old, by her own

father Sumit Kapoor i.e. Respondent No.2, who is an NRI and living in

America for the last several years, visiting India twice a year or so.

5. An FIR was registered against Respondent No.2 on 22.6.2017 who is

also the former husband of petitioner.

6. The petitioner was married Respondent No.2 on 17.4.2009 in New

Delhi and thereafter accompanied her husband to USA and was living there

till a divorce was granted in USA by mutual consent in the year 2014. Out

of the wedlock a daughter was born named „X‟, who is the victim in the

present case. In 2015, the petitioner came back to India and has been living

in New Delhi ever since along with her minor child named „X‟, who was

aged 4 years when the offence was committed. The petitioner despite the

laws in USA entitling her to 50% share in the assets/income of the

respondent No.2, had foregone that and took absolutely no maintenance/any

kind of alimony for herself. However, as per the mutual agreement between

the petitioner and her, her former husband/respondent No.2 had visitation

rights up to a maximum of 6 weeks every year with regard to the minor

child, including spending nights also with the minor in absence of her

mother.

7. Further case of the petitioner is that after coming back from USA, the

minor child was with the respondent No.2/father for about 20 days from

04.05.2016 to 24.06.2016 at his parental home at Shivalik, his residence in

Delhi. When the said minor came back after staying with the respondent

No.2 for several days, she looked disturbed and physically uncomfortable

because the respondent No.2 had exploited her sexually. The minor child

was again and again touching her private part and putting her finger there

and looked very uncomfortable. When the petitioner asked the minor child

the reason, she disclosed that the respondent No.2 used to put his finger in

her private part and also gave some graphic description of sexual

exploitation by her father/respondent No. 2. The petitioner was too shocked

to believe this and thought that she would check and confirm again when the

minor child visits her father again. During the period of 28.12.2016 to

15.1.2017, when again respondent No.2 took custody of the minor child for

the said period and she remained with him in the night also, this time again,

when the minor came back she was very scared and looked pale and shaky

and there was a rash around her private part. The petitioner was finding it

difficult to come to terms with this fact that respondent No.2/father can

actually rape his own daughter. The minor child gave graphic description of

the sexual exploitation by Respondent No.2 to the petitioner.

8. It is further case of the petitioner that the agony of petitioner increased

when the class teacher of the said minor informed the petitioner in January,

2017 that when the schools reopened after the winter break child minor „X‟

seemed little unsettled. The petitioner informed the teacher that the said

minor was not following her regular sleep routine also. In February, 2017

during Parent Teacher Meeting the said teacher informed the petitioner that

a mother of child „Y‟ (X‟s classmate) had informed that her daughter had

been informed by child „X‟ that the child „X‟ was upset in winter vacation,

however the petitioner did not want to make the reason public. The said

class teacher also confirmed this fact in her statement under Section 161

Cr.P.C. recorded by the Police, which is part of the Charge Sheet. It also

came to the knowledge of the petitioner that the minor „X‟ had taken in

confidence the said friend and shared with her how bad her father was.

However, keeping in mind the welfare of the school children, the petitioner

did not discuss the sexual exploitation of the child „X‟ with the friend's

mother. However, the petitioner became extremely concerned about the

mental state of her daughter and took extra care of her. However, complaint

of rape was filed by the petitioner on behalf of the minor against respondent

No.2 at P.S. Malviya Nagar on 19.5.2017 and said complaint was also

accompanied with CD of conversation of the said minor with the petitioner

wherein she gives a graphic description of the commission of offence by

respondent No.2. The said complaint was received by the police station on

19.05.2017 along with the CD of the recorded conversation between the

minor and petitioner. Despite the complaint disclosing the commission of

very serious cognizable offence, the concerned police officials blatantly

refused to register FIR, in complete disregard of law. Thereafter, over the

next few weeks not only police refused to register the FIR but they also tried

to browbeat the petitioner to an extent that she felt nervous and stressed

herself. In the following few days, the complainant repeatedly met the

police officials and the SHO at the said police station and also visited the

concerned DCP and the ACP requesting for registration of FIR. However,

not only did the police refuse to register FIR but also harassed the petitioner

so much that she felt helpless and victimized herself.

9. On 30.05.2017, the Investigating Officer met petitioner and the minor

child along with one more woman who was introduced as Counsellor of

DCW (the said statement is part of the charge sheet) and remained with the

petitioner and the minor child for about 2 hours and recorded a very long

statement of the minor child and the same was written by the Investigation

Officer. The minor child gave a detailed description of the commission of

rape by respondent No.2. Before leaving, the petitioner was told that the

FIR would be registered the next day, however, the same was not registered.

Subsequently, FIR was registered only on the direction of the Court under

Section 376 IPC and Section 6 POCSO Act at P.S. Malviya Nagar, New

Delhi. After registration of the FIR, the statement of the said minor was

recorded under Section 164 C.r.P.C. wherein, the said minor has given a

graphic description of commission of said offence of rape by respondent

No.2.

10. Despite, there being several statements of the 4 year old rape victim

giving detailed description of commission of rape by respondent No.2

including her statement under Section 164 of Cr.P.C., the police officials not

only refused to file the Charge Sheet against respondent No.2 but also

repeatedly became extremely aggressive and hostile to the petitioner and

even got the 4 year old child medically examined, despite the fact that the

said medical examination was being performed several months after the

commission of the said offence.

11. Learned counsel appearing on behalf of the petitioner submitted that

petitioner filed a complaint of rape in the month of May, 2017 because she

wanted to file the said complaint during the school vacations of the said

child as she understood that during the following few weeks the child would

be required to make statements regarding the commission of the said offence

before the police repeatedly, which would adversely affect the mental state

of the child, besides during school days the child would be available only

during 3 pm to 7 pm, as she sleeps soon after and even during these 4 hours,

the child has to focus some time on her studies and other activities. Besides,

the child would take few days to mentally settle down and calm down after

repeated interaction with the police. The petitioner was hoping that by the

time the school of the minor reopened she would not only calm down but

also settle in her new session.

12. Learned counsel further submitted that after waiting for several weeks

after the registration of the FIR and seeing the extremely hostile behavior of

the investigation authorities at Malviya Nagar, New Delhi, the petitioner

was compelled to file a Writ Petition before this Court in August, 2017

praying for transfer of investigation in the investigation in the present case

to an independent agency. However, on 01.12.2017 the Investigating Officer

informed this Court that the Charge Sheet was being prepared and she (IO)

was directed to bring the file on 18.01.2018 before this Court. On said date,

this Court was wrongly informed that the Charge Sheet has been filed

against respondent No.2 for trial. However, to the utter shock of the

petitioner she learnt that despite this statement before this Court, the Charge

Sheet has been filed without sending respondent No.2 for trial and he was

kept in Column No. 12 of the said Charge Sheet. However, learned ASJ,

Special Court, POCSO (South) was pleased to take cognizance of offences

under Section 376 Clause 2 of the IPC and Section 6 of the POCSO,

consequently summoned the respondent No.2/accused for 29.08.2018 vide

order dated 16.07.2018.

13. Learned counsel submitted that the impugned order passed by learned

ASJ, Special Court, is without considering the factors relevant for grant of

bail, particularly, with regard to an offence punishable with life

imprisonment and specially a heinous crime like rape and that too allegedly

of a victim, who was only four years old, at the time of offence and did not

consider the evasive conduct of the respondent No. 2, who appeared for the

first time on 14.01.2020, before the trial court, in a case, in which summons

for his appearance were for 19.08.2018. Learned ASJ not only granted bail

to respondent No.2 but also refused to direct the Investigating Authorities to

impound the passport of respondent No.2 and further refused to put a

condition in the said bail order of requiring prior permission of the Court

before leaving the country.

14. While concluding her arguments, learned counsel submits that

respondent No.2 is an American citizen and has been residing in USA and

despite the Summoning Order being passed against him on 16.07.2018 and

he being summoned for 29.08.2018, he did not appear before the Trial

Court, till the date when he obtained bail and, in fact, appeared before the

Court for the first time on 14.01.2020 that also because he came to India to

attend to his mother, who was ill and not specially to appear before the Trial

Court.

15. Subsequently the lawyer of respondent No.2, who was appearing

before the Family Court, appeared before the Trial Court and sought

adjournments on one ground or the other and has sought various

adjournments for presenting respondent No.2 without giving any convincing

reason for his non-appearance. If respondent No.2 continues to be on bail

and he does not attend the trial, it will be bad in law not only to the

petitioner and the victim but society as a whole, because in such cases if

accused in a case of rape of minor is not brought to book, a wrong message

shall go in the society.

16. It is pertinent to mention here that counsel for respondent No.2 argued

before the Trial Court that the accused has been falsely implicated in this

case by the complainant, by tutoring the victim who is of tender age in order

to indirectly curtail the visitation rights of the accused. He further argued

that accused was supposed to visit India somewhere in June 2017 and he had

written an email dated 09.05.2017 to the complainant (mother of the victim)

asserting that he will avail his visitation rights to meet the victim in June

2017. Earlier also, there were discussions with respect to renewal of the

passport of the victim as the accused wanted to take the victim to USA for

two months. This is discernible from the earlier emails exchanged between

the parties in January 2017. He has further stated that the complainant

(mother of the victim) had even written an email dated 13.05.2017 to the

accused and there is no whisper of any such allegations in that email. On

17.05.2017, this false complaint was made by the complainant so as to

frustrate the mutually agreed visitation rights and to prevent him from taking

the victim to USA. During the course of investigation, various photographs

were handed over to the IO, which have been placed on record and from the

said photographs, it can be seen that the victim was very happy with the

accused and he had also celebrated the birthday of the victim. Even the

police had neither arrested the accused during investigation nor had filed a

charge sheet sending the accused for trial.

17. The alleged offences took place in June 2016 and December 2016-

January 2017, however the complaint was lodged after an inordinate delay

only on 27.05.2017. Alongwith the police report, an email has been placed

on record, which has been written by the complainant (mother of the victim)

to the accused on 13.05.2017 and there is no whisper of any such allegation

in the said email and in fact the complainant has written in the said email

that: "This is to let you know that "S" (victim) had her visitation with your

(of accused) parents today between 11.30 am and 8.30 pm". It is also seen

that from the various photographs of the accused (father of the victim) and

the victim, filed along with the police report, it appears that the victim is

quite happy with the accused. In addition to above, the learned Court below

perused the MLC report of the victim which merely records attempted

penetration by finger only and the fact that the hymen was found intact.

Thus, the MLC does not support the case nor is there any scientific

evidence. The only allegations against the accused are in the statement under

section 164 Cr.P.C., but it is seen that the victim at that time was five years

old girl who was in the custody of her mother. It is further seen in the police

report that there were certain contradictions in the statement under section

164 Cr.P.C. and FIR, which could not be clarified as the victim girl was not

made to join the investigation by the complainant. The complainant also did

not cooperate in the investigation and specifically refused to let her daughter

join investigation. It has also come on record that now the

petitioner/complainant has filed a petition for sole custody of the victim.

18. As per the police report, the accused has not been sent up for trial and

his name was arrayed in column no. 12 of the police report, which deals

with the accused persons not charge-sheeted.

19. It is trite to say that there are no such limitations on the bar of a Court

of Sessions to grant bail to the accused and since the Special Court under

POCSO functions as a Court of Sessions by virtue of provisions of Section

31 of POCSO Act.

20. Learned counsel for the petitioner has relied upon the case of

„Mansoor vs. State of UP‟ (2009) 14 SCC 286, wherein the Hon‟ble

Supreme Court observed that "there is no denying the fact that the liberty of

an individual is precious and is to be zealously protected by the courts.

Nonetheless, such a protection cannot be absolute in every situation. The

valuable right of liberty of an individual and the interest of the society in

general has to be balanced. Liberty of a person accused of an offence would

depend upon the exigencies of the case. It is possible that in a given

situation, the collective interest of the community may outweigh the right of

personal liberty of the individual concerned."

21. In case of „Neeru Yadav vs. State of UP‟ (2014) 16 SCC 508

whereby the Hon‟ble Supreme Court noted that "no one would like to lose

his liberty or barter it for all the wealth of the world. People from centuries

have fought for liberty, for absence of liberty causes sense of emptiness. The

sanctity of liberty is the fulcrum of any civilised society. A democratic body

polity which is wedded to the rule of law, anxiously guards liberty. But, a

pregnant and significant one, the liberty of an individual is not absolute.

Society by its collective wisdom through process of law can withdraw the

liberty that it has sanctioned to an individual when an individual becomes a

danger to the collective and to the societal order. No individual can make

an attempt to create a concavity in the stem of social stream. It is

impermissible."

22. It is not in dispute that the bail application of the accused is

maintainable under section 439 Cr.P.C. because pursuant to his summoning

by the Court he has submitted to the jurisdiction and orders of the Court,

therefore he is to be deemed to be in custody for the purpose of section 439

Cr.P.C. as held in „Niranjan Singh v. Prabhakar Rajaram Kharote‟

reported as (1980) 2 SCC 559 and „Nirmal Jeet Kaur v. State of M.P.‟

reported as (2004) 7 SCC 558.

23. In so far as the plea that the accused may flee from justice is

concerned, there is no positive material on record warranting such a

conclusion that respondent No.2 is a flight risk. It is not in dispute that even

without service of summons, respondent No.2/accused had put in his

appearance through his counsel before the Court on 27.04.2019 and even

now he has voluntarily appeared before the Court in connection with his bail

application. If he wanted to evade the process of the Court, he would not

have personally appeared at the first instance.

24. In so far as the issue of influencing or intimidating the victim and the

complainant is concerned the same can be taken care of by imposing

appropriate conditions. No doubt gravity of the offence also needs to be

considered and the offences alleged to have been committed by the accused

are punishable with imprisonment for life. It is also not in dispute that

gravity of an offence is an important criterion for grant of bail but matter is

to be seen comprehensively while keeping in mind the facts and

circumstances of the case as well as the material which is available on

record.

25. It is pertinent to mention here that after coming back from USA, the

minor child was with the respondent No.2/father for about 20 days from

04.05.2016 to 24.06.2016 at his parental home at Shivalik, Delhi.

Allegations of the petitioner are that when the said minor child came back

after staying with the respondent No.2 for several days, she looked disturbed

and physically uncomfortable because the respondent No.2 had exploited

her sexually. If the petitioner came to know about her sexually being

exploited by her father/respondent No.2, then what prevented the petitioner

not to take legal course available under the law at that point in time ?

Despite knowing the facts as alleged, the petitioner again sent the minor

child to her father/respondent No.2 and further allegations is that again

during the period of 28.12.2016 to 15.01.2017, the minor child was again

exploited. Accordingly, she noticed that she was very scared and looked

pale and shaky and there was a rash around her private part. Then, even

second time, she did not make any complaint or got MLC done of the

victim. However, in the month of May, after about 4-5 months, the

petitioner made complaint by alleging that her daughter‟s class teacher

informed her about her sadness.

26. It is pertinent to note that the victim/minor was 3-4 years at the time

of commission of offence and except the period mentioned above, she

continued to stay with the petitioner, who is her mother. Such a child needs

proper care and protection and a child of such age cannot even bath

independently or change her clothes. Therefore, it is difficult to believe that

the petitioner never noticed any scar on her private part but upon being

informed by teacher of the minor, about her disturbance, she made

complaint to the police which immediately was rightly not registered,

because the complaint being against father of the minor girl and there was

no proof of scientific evidence of the sexual exploitation of the minor girl.

27. Moreover, on perusal of the impugned order, the Trial Court has put

reasonable conditions on respondent No.2 while granting bail. Therefore, I

find no illegality or perversity in the said order.

28. Finding no merit in the present petition, the same is accordingly

dismissed.

CRL.M.A. 1950/2020

29. In view of the order passed in the present petition, the application has

been rendered infructuous and is accordingly disposed of.

(SURESH KUMAR KAIT) JUDGE JANUARY 28, 2020 Aj