Delhi High Court
Shivam Soni vs State (Gnctd on 7 April, 2022
$~7
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Judgment delivered on: 07.04.2022
+ BAIL APPLN. 3243/2019 & Crl. M.A. No.43735/2019
SHIVAM SONI ..... Petitioner
Through : Mr. Himanshu Kaushik, Advocate.
versus
STATE(GNCTD) ..... Respondent
Through: Ms. Rajni Gupta, APP for State with
W/SI Garima Bhatia, P.S. Mukherjee
Nagar.
Complainant with her counsel Ms.
Richa Dhawan, Advocate.
CORAM:
HON'BLE MR. JUSTICE ANOOP KUMAR MENDIRATTA
% JUDGMENT
ANOOP KUMAR MENDIRATTA, J. (ORAL)
1. This is an application filed under Section 438 read with Section 482 of
Cr.P.C. seeking anticipatory bail in FIR No.635/2019 registered under
Section 376 of IPC at Police Station Mukherjee Nagar.
2. In brief, as per the case of the prosecution, on 23.04.2019 WSI Anita
received DD No. 28-A and the complainant/prosecutrix aged about 22 years
narrated her about the incident of sexual assault by the accused/petitioner.
Signature Not Verified
By:DINESH CHANDRA
Signing Date:08.04.2022
07:34:18
The statement of the complainant/prosecutrix was recorded after due
counseling. As per allegations, both complainant/prosecutrix and
accused/petitioner are blind and they developed good relationship/friendship
in 2018. The petitioner used to say that he wanted to be complainant's better
half. The petitioner got job in State Bank of India in 2019 and in March,
2019 he hired a rented accommodation in GTB Nagar. On 19.04.2019, the
petitioner called the complainant/prosecutrix at his rented accommodation
and asked her to stay as he was not feeling well and thereafter tried to
forcefully indulge and have sex with her. The complainant/prosecutrix
denied for the same. Thereafter on 24.04.2019, accused/petitioner put
sindoor on her head and established physical relations in the rented
accommodation on the assurance of solemnizing marriage.
3. The application has been opposed by the learned APP for the State as
well as the legal aid counsel representing the complainant/prosecutrix.
4. I have heard the Ld. Counsel for the petitioner, ld. APP for state and
counsel representing prosecutrix.
The petitioner is on interim protection granted vide order dated
03.01.2020 by this Court. Thereafter, the charge-sheet has already been filed
before the learned Trial Court and is pending for consideration of charge.
The pertinent fact which needs to be noticed and requires a special
consideration is that both the petitioner as well as the
complainant/prosecutrix are differently abled (i.e. blind).
5. The incident in this case allegedly took place on 24.04.2019 but the
Signature Not Verified
By:DINESH CHANDRA
Signing Date:08.04.2022
07:34:18
complaint has only been made on 23.12.2019 after a gap of about 8 months.
A call alleged to have been made on behalf of the accused/petitioner for
influencing the complainant/prosecutrix was not found to be correct on
investigation, as stated by the learned APP for the State on instructions. The
petitioner has already joined the investigation and is not required for purpose
of custodial interrogation or recovery. No purpose would be served by
incarcerating the accused/petitioner, at this stage, considering the fact that
the petitioner is also differently abled.
6. Considering the totality of facts and circumstances, in the event of
arrest, the accused/petitioner be released on bail, subject to his furnishing a
personal bond of the sum of Rs.25,000/- (Rupees Twenty Five Thousand
only) with one surety in the like amount to the satisfaction of the
Investigating Officer/SHO concerned/Ld trial court and subject to the
condition that the accused/petitioner shall not communicate with, or come
into contact with the victim by any mode whatsoever and the prosecution
witnesses, or any member of the victim's family, or tamper with the
evidence of the case.
Nothing stated hereinabove shall tantamount to the expression of
opinion on the merits of the case.
7. At this stage, learned counsel appearing on behalf of the
complainant/prosecutrix prays that a copy of the order be provided in the
readable (Braille) script to the complainant/prosecutrix.
8. The observations of the Supreme Court of India in Vikash Kumar v.
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By:DINESH CHANDRA
Signing Date:08.04.2022
07:34:18
Union Public Service Commission, AIR 2021 SC 2447 in the context of
inalienable rights of the differently abled under Rights of Persons with
Disabilities Act, 2016(in short "RPwD Act") are apt to be noted:
".... Individual dignity undergirds the rights of persons
with disabilities Act, 2016 . Intrinsic to its realization is
recognizing the worth of every person as an equal member
of society. Respect for the dignity of others and fostering
conditions in which every individual can evolve according
to their capacities are key elements of a legal order which
protects, respects and facilitates individual autonomy. In
seeking to project these values as inalienable rights of the
disabled, the RPwD Act, 2016 travels beyond being merely
a charter of non-discrimination. It travels beyond imposing
restraints on discrimination against the disabled. The law
does this by imposing a positive obligation on the State to
secure the realization of rights. It does so by mandating
that the State must create conditions in which the barriers
posed by disability can be overcome. The creation of an
appropriate environment in which the disabled can pursue
the full range of entitlements which are encompassed
within human liberty is enforceable at law. In its emphasis
on substantive equality, the enactment of the legislation is
a watershed event in providing a legal foundation for
equality of opportunity to the disabled......"
9. In the present case, both the petitioner as well as the prosecutrix are
Signature Not Verified
By:DINESH CHANDRA
Signing Date:08.04.2022
07:34:18
visually impaired and seek effective enforcement of their rights from
opposite ends. The parties are entitled to be well versed with the proceedings
of the litigation they pursue and the documents which materially effect their
legal rights. Section 12 of the RPwD Act, 2016 creates a mandate on the
state for providing access to justice to differently abled and may be
beneficially reproduced:
"12. Access to justice.--(1) The appropriate Government
shall ensure that persons with disabilities are able to
exercise the right to access any court, tribunal, authority,
commission or any other body having judicial or quasi-
judicial or investigative powers without discrimination on
the basis of disability.
(2) The appropriate Government shall take steps to put in
place suitable support measures for persons with disabilities
specially those living outside family and those disabled
requiring high support for exercising legal rights.
(3) The National Legal Services Authority and the State
Legal Services Authorities constituted under the Legal
Services Authorities Act, 1987 (39 of 1987) shall make
provisions including reasonable accommodation to ensure
that persons with disabilities have access to any scheme,
programme, facility or service offered by them equally with
others.
(4) The appropriate Government shall take steps to--
(a) ensure that all their public documents are in
accessible formats;
Signature Not Verified
By:DINESH CHANDRA
Signing Date:08.04.2022
07:34:18
(b) ensure that the filing departments, registry or any
other office of records are supplied with necessary
equipment to enable filing, storing and referring to the
documents and evidence in accessible formats; and
(c) make available all necessary facilities and
equipment to facilitate recording of testimonies,
arguments or opinion given by persons with
disabilities in their preferred language and means of
communication"
10. On a clear reading of Section 12 of the RPwD Act, 2016 it can be seen
that a positive duty has been cast upon the appropriate government under
sub-section 4 to ensure that all public documents are in accessible formats.
Further it is mandated to make available all necessary facilities and
equipment to facilitate recording of testimonies, arguments or opinion given
by persons with disabilities in their preferred language and means of
communication. Right to access to justice includes the right to receive
documents to which the parties are legally entitled in the language and
means of communication decipherable by them.
11. Therefore in the facts and circumstances, the State is directed to make
suitable arrangements and provide the prosecutrix as well as the petitioner
the copy of the documents to which they are legally entitled in their preferred
language and means of communication (i.e. Braille script) to ensure that they
can effectively pursue and protect their legal rights. The state government is
also directed to make necessary arrangements for providing the court
documents in a readable language to the visually impaired in all such cases
Signature Not Verified
By:DINESH CHANDRA
Signing Date:08.04.2022
07:34:18
wherever the circumstances so warrant and information be suitably
disseminated to bring it to notice of all concerned.
The present Bail application is accordingly disposed of.
A copy of this order be sent to the learned Trial Court; Secretary,
Department of Legal Affairs, Ministry of Law & Justice, Government of
India; Chief Secretary Government of NCT of Delhi and Registry, Delhi
High Court forthwith for necessary compliance.
ANOOP KUMAR MENDIRATTA
(JUDGE)
APRIL 07, 2022/A
Signature Not Verified
By:DINESH CHANDRA
Signing Date:08.04.2022
07:34:18
