Delhi High Court
Sanjay Mahalwal vs State Of Nct Of Delhi on 8 January, 2020
$~46
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision: 08.01.2020
+ BAIL APPLN. 18/2020 with CRL.M.(BAIL) 16/2020
SANJAY MAHALWAL ..... Petitioner
Through: Ms. Ashima mandla and
Ms. Mandakini Singh, Advs.
versus
STATE OF NCT OF DELHI ..... Respondent
Through: Mr. Panna Lal Sharma, APP for State
with SI Shiv Singh, PS - Saket, New
Delhi
.CORAM:
HON'BLE MR. JUSTICE SURESH KUMAR KAIT
J U D G M E N T (ORAL)
CRL. M.A. 197/2020
1. Allowed, subject to all just exceptions.
2. Application is disposed of.
BAIL APPLN. 18/2020
3. Vide the present petition, the petitioner/ accused seeks bail in case
FIR No. 1213/2015 registered at Police Station - Saket for the offences
punishable under Sections 363/376D/34 IPC read with Section 6 of POCSO
Act, 2002.
4. Learned counsel appearing on behalf of the petitioner submits that the
petitioner/ accused No. 2 was neither named in the FIR nor in the statement
of the prosecutrix recorded under Section 161 Cr.P.C. Moreover, the
version of the Prosecution has been denied by both the prosecutrix and the
complainant (Mother of the prosecutrix) in their statements recorded under
Section 161 and 164 Cr.P.C. before the Ld. Magistrate and stated that the
deposition made against the accused persons was made due to threats and
pressure exerted upon the prosecutrix and complainant by the Police
officials.
5. Moreover, the prosecutrix failed to identify the petitioner in her
deposition before the Trial Court made in the morning session on
08.10.2016, however, post-lunch upon apparent tutoring, was able to
identify the petitioner.
6. Learned counsel further submits that the petitioner has been unduly
framed in the present FIR at the hands of the Police officials on the refusal
of the petitioner to meet with the extortion demands of the said officials, for
the purposes of which the officials illegally confined the petitioner in the
Police Station on 28.09.2015 and forged the date of arrest in the arrest memo
as 29.09.2015.
7. The petitioner has previously preferred 6 applications praying for
regular bail under Section 439 Cr.P.C. before the Ld. Sessions Court, but the
same have been of no avail and the petitioner has been languishing in
judicial custody since nearly 4 years, with short period of interim bails
granted.
8. The case of the prosecution is that the prosecutrix, who had left her
house at 7 PM on 28.09.2015 on the pretext of going to her friend's house to
collect books, had neither reached the friend's house nor came back to her
home since then. The mother of the prosecutrix (complainant) while giving
the description of the prosecutrix put forth her apprehension that some
person may have coaxed the prosecutrix and taken her along.
9. Pursuant to the statement of the complainant, FIR No1213/2015 u/s
363 IPC was registered and the investigation by the Police was set in
motion.
10. On 28.09.2015 at 5.30-6.00 AM, as per the events alleged by the
prosecution, the prosecutrix returned to her house and was taken to P.S.
Saket where she allegedly deposed in her statement under Section 161
Cr.P.C. that on 27.09.2015 around 7 pm, Sanjay Kumar @ Sanju (co-
accused) with his unidentified friends forcibly nabbed the prosecutrix from
new Hanuman Mandir and took the prosecutrix first to Chirag Delhi Park
where the prosecutrix was assaulted and sexually harassed and then taken to
a terrace of a building in Madangir Village where she was sexually assaulted
by co-accused Sanjay @Sanju & one more person, thereby leading to the
enlargement of scope of alleged charges under Section 376-D IPC read with
Section 6 of POCSO Act against the accused persons. Learned counsel
further submits that the prosecutrix in her statement under Section 161
Cr.P.C. named the accused No.1 - Sanjay [email protected] Sanju with unidentified
persons and again no mention of the petitioner /accused no.2 was made
therein on the account of the prosecutrix.
11. On 28.09.2015, between 2.30 PM-4.30PM, the MLC (Sexual Assault)
bearing no. 13115/2015 was conducted upon the prosecutrix at AIIMS, New
Delhi. It is imperative to note that while in the above statement of the
prosecutrix under Section 161 Cr.P.C., there is no mention of names apart
from co-accused Sanjay @ Sanju, in the narration of the incident to the
examining doctor in AIIMS, however, just hours after the statement under
Section 161 Cr.P.C., the prosecutrix interestingly named 2 more persons
apart from Accused No.1 Sanjay @Sanju, namely Aryan and Nandi and the
identity of the alleged 4th person involved was again unnamed. Furthermore,
as per the narration of the prosecutrix, it is only accused No.1 Sanjay @
Sanju who is alleged to have performed forceful sexual intercourse with the
prosecutrix.
12. Furthermore, the MLC form clearly' states that as per the version of
the prosecutrix, verbal threats, physical violence, weapons or objects used to
threaten the prosecutrix and condom were absent. Moreover, it is
noteworthy that there were no injury marks inflicted upon the prosecutrix by
the assailant.
13. Learned counsel submits that on 29.09.2015 at 11 AM, the
petitioner/accused No.2 was shown to be arrested in connection with FIR
No. 1213/2015 by P.S. Saket, however, the petitioner was illegally confined
in the Police Custody since 28.09.2015. The entire chain of events leading
up to the arrest of the petitioner have purely been fabricated by the Police
officials. There is no independent witness to the arrest of the petitioner
validating the narration of events as mentioned by the Police officials
leading up to his arrest.
14. Moreover, on 08.10.2016 the prosecutrix in her statement under
Section 164 Cr.P.C., in her examination-in-chief denied the entire story of
the prosecution of allegations of alleged rape and kidnapping. Furthermore,
prosecutrix was able to identify accused No.1 but not to petitioner/accused
No.2. Furthermore, upon cross-examination the prosecutrix deposed that the
Police officials threatened her into deposing against the accused persons.
15. On the other hand, learned APP appearing on behalf of the State
submits that the trial is at the fag end of its completion, where material
witnesses have been examined and only formal witnesses are left to be
examined. The petitioner earlier moved three bail applications before this
Court in the year 2017 but were dismissed. Thereafter, Bail Appln. No.
2444/2019 was filed and the same was dismissed as withdrawn on
26.09.2019. Thus, there is no change of circumstances since then, therefore,
the present petition deserves to be dismissed. Even as per the FSL report, the
petitioner is connected with the alleged sexual intercourse with prosecutrix.
16. It is not disputed by the learned APP for the State that the petitioner
was arrested on 29.09.2015 and since then, he is in judicial custody, thus he
has completed more than four years of incarceration.
17. As per Section 35 of the POCSO Act, the trial to be concluded, as
soon as possible, within one year from the date of taking cognizance of the
case. In the present case, the petitioner is in judicial custody from the last
more than four years and the trial will take its own course of time.
18. Keeping in view the facts narrated in the present petition and argued
by the learned counsel for the petitioner, I am of the opinion that the
petitioner deserves to be admitted on bail.
19. Therefore, keeping in view the aforesaid facts, this bail application is
being considered. In addition to above, it is not in dispute that the petitioner
was released on interim bail earlier on 12 occasions, however, he has never
violated the terms of the bail. Accordingly, he shall be released on personal
bond in the sum of ₹25,000/- with one surety of the like amount to the
satisfaction of the Trial Court.
20. The petition is allowed and disposed of accordingly.
21. Pending application also stands disposed of.
22. Order dasti under signatures of the Court Master.
23. Copy of this order be transmitted to the Jail Superintendent and the
Trial Court concerned for compliance.
(SURESH KUMAR KAIT)
JUDGE
JANUARY 08, 2020
PB
