Delhi High Court
Aditya Raj vs State And Anr. on 7 December, 2023
Author: Sudhir Kumar Jain
Bench: Sudhir Kumar Jain
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* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Reserved on: 28th November, 2023
Date of Decision:07thDecember, 2023
+ BAILAPPLN. 958/2023
ADITYA RAJ ..... Petitioner
Through: Ms. Vagisha Kochar and
Mr. Jujhar Singh, Advocates
V
STATE & ANOTHER ....Respondents
Through: Mr. Utkarsh, APP for
State/R-1 with SI Manisha,
P.S. Punjabi Bagh.
Mr. Kartik Gudi, Mr. Robin
Singh and Ms. Tanisha Jain,
Advocates for complainant.
CORAM
HON'BLE DR. JUSTICE SUDHIR KUMAR JAIN
JUDGMENT
1. The present bail application is filed under section 439 of the Code
of Criminal Procedure, 1973 (hereinafter referred to as "the Code")on
behalf of the petitioner for grant of regular bail in FIR bearing no.
0653/2022 dated 18.10.2022 registered under sections
By:JITENDRA BAIL APPLN. 958/2023 Page 1
354C/354D/506/34 of the Indian Penal Code, 1860 (hereinafter referred
to as "IPC") at P.S. Punjabi Bagh.
2. The present FIR was got registered under sections
354C/354D/506/34 IPC at P.S. Punjabi Bagh on the basis of complaint
made by the complainant/prosecutrix/respondent no. 2 (hereinafter
referred to as "the complainant/prosecutrix") wherein it was alleged
that the complainant/prosecutrix in 2016 was studying in Ganga
International School, Hirakundna and met the petitioner being her senior.
The petitioner and the complainant/prosecutrix became friends. The
complainant/prosecutrix in 2017 took admission in Amity International
School, Saket, Delhi for pursuing higher studies and was staying in the
school campus hostel. The petitioner in 2016 proposed the
complainant/prosecutrix for a relationship with her. The
complainant/prosecutrix initially refused for relationship with the
petitioner as she wanted to focus on her studies. The petitioner continued
to follow the complainant/prosecutrix and the complainant/prosecutrix
subsequently accepted the proposal of the petitioner. The petitioner and
the complainant/prosecutrix used to talk with each other on social media.
The petitioner became over possessive and insecure towards the
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complainant/prosecutrix which was affecting studies of the
complainant/prosecutrix and due to this reason, the
complainant/prosecutrix did not want to continue with her relationship
with the petitioner. The petitioner also once threatened the
complainant/prosecutrix outside the library in her college. The petitioner
also started to call and message classmates of the
complainant/prosecutrix and other people in her college. The petitioner
sent a suicide note addressed to the parents of the
complainant/prosecutrix on 23.06.2022. The petitioner also sent a video
on 06.07.2022 depicting attempt to suicide by him. Pushpanjali, sister of
the petitioner also used to call the complainant/prosecutrix and threatened
the complainant/prosecutrix to come back in a relationship with the
petitioner. The petitioner on 07.08.2022 called the father of the
complainant/prosecutrix and threatened him and also abused the
complainant/prosecutrix. The petitioner also hacked social media account
of the complainant/prosecutrix. The petitioner also retrieved contacts of
the complainant/prosecutrix and texted them various troublesome and
obscene messages and pictures of the complainant/prosecutrix. The
petitioner also asked the complainant/prosecutrix for sexual favour for
By:JITENDRA BAIL APPLN. 958/2023 Page 3
him. The petitioner also uploaded indecent pictures of the
complainant/prosecutrix on social media. The complainant/prosecutrix
also made other allegations in her complaint which resulted into
registration of FIR.
2.1 The statement of the complainant/prosecutrix was also recorded
under section 164 of the Code on 19.10.2022 by the court of Ms.
Akansha Gautam, Metropolitan Magistrate, West, Tis Hazari Courts,
Delhi. The complainant/prosecutrix in her statement under section 164 of
the Code alleged that the petitioner established and did sexual
intercourse with her after he made to her to drink an intoxicating drink
despite her refusal and without her consent. The petitioner did sexual
intercourse with the complainant/prosecutrix many times at various
places and also made her videos and clicked her obscene pictures. The
charge sheet was filed after conclusion of investigation for offences
punishable under sections 354C/354D/506/34 IPC, section 6 of the
Protection of Children from Sexual Offences Act, 2012 (hereinafter
referred to as "POCSO Act") and section 67/67(A)/66E of the
Information Technology Act, 2000 (hereinafter referred to as "IT Act").
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The trial is stated to be pending in the court of Ms. Harleen Singh,
Additional Sessions Judge-01, West, Tis Hazari Courts, Delhi.
2.2 The petitioner was arrested on 12.11.2022. The petitioner filed an
application under section 439 of the Code for grant of regular bail which
was dismissed vide order dated 04.03.2023 passed by the court of Ms.
Harleen Singh, Additional Sessions Judge-01, West, Tis Hazari Courts,
Delhi. The relevant portion of the impugned order is reproduced as
under-
14. As per the chargesheet, various social media records of
the accused Aditya Raj, including IP addresses, records
from Facebook, Hathway, Google etc. have been obtained.
Certain records mention the name of the Subscriber as
„Aditya Raj‟. The allegations against the accused are very
grave. The matter is still at the initial stage. The
prosecutrix/victim is yet to depose before the court, as
charges are yet to be framed against the accused persons. In
case the accused Aditya Raj is enlarged on bail, there is
every possibility of him trying to intimidate or influence the
prosecutrix/victim and she may not be able to depose freely
in the court.
15. Further, the judgments relied upon by the Ld. Counsel
for the applicant/accused do not help his case, as they are
based upon different factual matrixes. For instance, in the
case of Dharmender Singh @ Saheb (Supra), charges had
already been framed and the testimony of the complainant
was also underway, with the court observing that due to the
restricted functioning of the courts due to Covid, the trial
was not likely to be completed any time soon. Further, in
Praduman's case (supra), the prosecutrix did not object to
the grant of bail to the accused in that case. Furthermore, in
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Ajay Kumar's case (supra), the prosecutrix had stated that
she got married to the accused therein out of her own free
will.
16. For the foregoing reasons, no ground is made out to
grant bail to the accused Aditya Raj. The present bail
application of the accused Aditya Raj accordingly stands
dismissed.
3. The petitioner prayed for grant of bail on grounds that the
petitioner is a young boy aged about 24 years with clean antecedents.
The petitioner is preparing for Civil Services and is having deep roots
in the society and belongs to a family of government servants. There is
no likelihood for the petitioner either fleeing from justice or
absconding if granted bail. The petitioner and the
complainant/prosecutrix became friends in school and after
completing school, they started to meet each other on regular intervals.
The petitioner and the complainant/prosecutrix entered into a
relationship only after the complainant/prosecutrix attained the age of
18 years. The complainant/prosecutrix also sent love letters to the
petitioner. The complainant/prosecutrix wanted to marry the petitioner
and even proposed the petitioner for marriage but the petitioner was
preparing for civil services and asked the complainant/prosecutrix to
wait for some time. The complainant/ prosecutrix along with family
members started to threaten the petitioner to marry her otherwise the
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petitioner would be implicated in a false case. The present FIR was
lodged on the basis of false, frivolous and baseless allegations. The
complainant/prosecutrix made false and fabricated allegations in her
statement under section 164 of the Code only to falsely implicate the
petitioner in the present case. The complainant/prosecutrix made
different statements in complaint, statement under section 164 of the
Code and MLC. The complainant/prosecutrix also refused for internal
examination. The complainant/prosecutrix along with her family
members in a pre-planned manner gave criminal colour to a
consented, loving friendship and misused the provisions of POCSO
Act. It is not established that the complainant/prosecutrix was below
the age of 18 years at the time of incident. There is delay of more than
5 years in registration of the FIR and as such is afterthought. The
petitioner is in judicial custody since 13.11.2022. The charge sheet has
already been filed after conclusion of investigation. The petitioner is
ready to submit himself to any condition/conditions to be imposed if
bail is granted and the petitioner shall not misuse the liberty to be
granted to him. The petitioner shall not directly or indirectly make any
inducement, threat or promise to any person acquainted with the facts
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of the case and shall not tamper with the evidence. The petitioner
raised other pleas for grant of bail.
4. The respondentno.1/State filed Status Report wherein it was
mentioned that present FIR was got registered initially under sections
354C/354D/506/34 IPC on complaint made by the
complainant/prosecutrix on allegations as stated hereinabove. The
statement of the complainant/prosecutrix was also recorded under
section 164 of the Code wherein the complainant/prosecutrix made
allegations of sexual intercourse by the petitioner against her will and
thereafter, offences under section 376 IPC and under section 6 of the
POCSO Act were also added.
4.1 The complainant/prosecutrix during further investigation produced
a pen drive containing screenshots of Instagram account created by the
petitioner which he used to make photos of the
complainant/prosecutrix viral. The Investigating Officer during further
investigation issued and served notices under section 91 of the Code to
Facebook, Hathway and Google regarding records of e-mail ID and it
was found that IP address of said ID matched the devices being used
by the petitioner and the subscriber of Hathway subscription was
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found to be of the petitioner using which the petitioner had made all
fake accounts and circulated the obscene photographs and videos of
the complainant/prosecutrix. It was also found as per reply of the
Google records that the recovery ID and 2-step verification mobile
number of the e-mail ID of the complainant/prosecutrix were also
attributed to the petitioner.
4.2 During investigation of the petitioner after arrest, two mobile
phones, one laptop and one tablet were recovered at his instance. One
Hathwaycable and Datacom Ltd. router were also found installed in
the house of the petitioner which were also seized. Two mobile
phones, one laptop and one tablet which were recovered at instance of
the petitioner were analysed and on analysis, nude pictures and videos
of the compainant/prosecutrix were found in those devices and fake
accounts of the complainant/prosecutrix were also created from using
the same Hathways connection and the fake IDs were also found
logged in at time of seizure. It was also found that the WhatsApp
account used by the petitioner to share nude pictures and videos of the
complainant/prosecutrix was also used by the petitioner in a separate
mobile phone and the same account was used by the petitioner to share
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those obscene pictures and videos with the mother and father of the
complainant/prosecutrix and also on Instagram accounts created by the
petititioner.
4.3 It was also found during further investigation that iPhone 11
used by the petitioner was analysed and a folder named "Hidden" was
found in the photo gallery consisting 1170 items which included nude
photographs of the complainant which were shared on Instagram by
making fake accounts by the petitioner. The father of the
complainant/prosecutrix also submitted iPhone 12 pro wherein on
analysis it was found that that videos and screenshots were sent from
mobile number used by the petitioner on his number.
4.4 It was also surfaced during investigation that the petitioner sent
a parcel containing Face Serum, Durex Condom and Durex Lubricants
to the father of the complainant/prosecutrix through Nykaa order.
4.5 That multiple calls were exchanged between the petitioner and
the complainant/prosecutrix and between co-accused Pushpanjali and
the complainant/prosecutrix. The date of birth of the
complainant/prosecutrix was also found to be 30.06.2001. The charge
sheet has already been filed after completition of investigation. FSL
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report in respect of exhibits collected during investigation is already
received which has already been filed by supplementary charge sheet.
It is stated that bail application be dismissed.
5. The counsel for the petitioner argued that the petitioner has
been falsely implicated in the present FIR on the basis of false,
frivolous andbaseless allegations. The complainant/prosecutrix gave a
detailed written complaint dated 18.10.2022 against the petitioner
which is the basis of registration of present FIR under sections
354C/354D/506/34 IPC and thereafter in her statement under section
164 of the Code, the complainant/prosecutrix added allegations of rape
committed by the petitioner on her 16th birthday i.e.on 30.06.2017 to
add the provisions of POCSO Act.The complainant/prosecutrix in
MLC mentioned the date of incident as February 2018 and with
alleged history of „Patient got raped multiple times on context of
getting married‟. The complainant/prosecutrix as such gave three
different dates and versions of incident within a period of 24 hours
which is highly improbable. The complainant/prosecutrix also refused
for internal examination.
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5.1 The counsel for the petitioner further argued that there was
delay of more than 5 years in lodging the present FIR which is
afterthought. The petitioner is a young boy with clean antecedents and
having deep roots in the society with a family of government servants.
There is no likelihood of the petitioner either fleeing from justice or
absconding if granted bail.
5.2 The petitioner and the complainant/prosecutrix became friends
in the school and continued to meet each other regularly even after
completing education in school and entered into relationship after
attaining the age of majority of 18 years by the
complainant/prosecutrix. The complainant/prosecutrix also sent love
letters to the petitioner and wanted to marry the petitioner. Now the
complainant/prosecutrix does not want to proceed further against the
petitioner. The counsel for the petitioner state that the petitioner is in
judicial custody since 12.11.2022 and trial would take time to
conclude. The counsel for the petitioner relied upon judgments of the
Supreme Court in Praduman V The State (Govt. of NCT, Delhi)
&Anr., Bail App. no. 2380/2021; Dharmander Singh @ Saheb V.
The State (Govt. of NCT, Delhi), Bail App. no. 1559/2020;
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Jayantibhai Babubhai Alani V. State of Gujarat, Crl. M.C.
8476/2018; Rahul Chandel Jatav V. The State of Madhya Pradesh,
Crl. M.C. 24691/2023 and prayed that the petitioner be released on
bail.
6. The Additional Public Prosecutor argued that the petitioner
committed rape with a minor girl which is a serious offence. If there is
any discrepancy in the complaint and statement of the
complainant/prosecutrix under section 164 of the Code, it can be
explained during trial. The delay in registration of FIR if any, can be
explained during trial after giving an opportunity to the prosecution to
lead evidence. The bail application is liable to be dismissed.
7. It is reflecting that the complainant/prosecutrix in the year 2016
was studying Ganga International School where he met the petitioner
who was her senior. The petitioner and the complainant/prosecutrix
developed relationship with each other and have become friends. The
complainant/prosecutrix in the year 2017 has taken the admission in
Amity International School, Saket to pursue higher studies and was
studying in the school campus. The complainant/prosecutrix continued
their relationship. The petitioner has also taken obscene photos/videos
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of the complainant which is alleged to have been put on social media.
The petitioner filed a complaint on 09.08.2022 wherein implicated the
petitioner and his sister i.e. co-accused Pushpanjali on the allegations
as stated in the FIR. Thereafter on the basis of the complaint, the
present FIR bearing no.0653/2022 was got registered under sections
354C/354D/506/34 IPC and the said complainant/prosecutrix did not
make any allegation regarding the committal of rape or sexual
harassment against the petitioner. During the investigation on
19.10.2022 i.e. the statement of complainant/prosecutrix was recorded
wherein the complainant/prosecutrix for the first time has levelled of
allegations of rape or committal of sexual assault by the petitioner
wherein he stated that on the day of her 16 th birthday, the petitioner
took her to his flat where he offered the complainant/prosecutrix to
drink bear and committed sexual intercourse with her and also
continued this act subsequently also. The complainant/prosecutrix was
also taken to Acharya Shree Bhikshu Government Hospital, Moti
Nagar, New Delhi on 19.10.2012 at about 11:00 P.M. for medical
examination where the complainant/prosecutrix has
complained/alleged about the sexual assault in themonth ofFebruary,
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2018 by the petitioner and subsequently also on the assurance of
marriage.
8. A coordinate bench of this court in Dharmander Singh @
Saheb V. The State (Govt. of NCT, Delhi) Bail Appl. 1559/2020
decided on 22.09.2022 has laid down the parameters that are to be
followed when considering bail of an accused person under the
POCSO Act. The relevant portion of the judgment reads as:
77. Though the heinousness of the offence alleged will beget
the length ofsentence after trial, in order to give due
weightage to the intent andpurpose of the Legislature in
engrafting section 29 in this special statute to protect
children from sexual offences, while deciding a bail plea at
the post-charge stage, in addition to the nature and quality
ofthe evidence before it, the court would also factor in
certain real life considerations, illustrated below, which
would tilt the balance against or in favour of the accused:
a. the age of the minor victim : the younger the victim, the
more heinous the offence alleged;
b. the age of the accused : the older the accused, the more
heinous the offence alleged;
c. the comparative age of the victim and the accused : the
more their age difference, the more the element of
perversion in the offence alleged;
d. the familial relationship, if any, between the victim and
theaccused : the closer such relationship, the more odious
theoffence alleged;
e. whether the offence alleged involved threat,
intimidation,violence and/or brutality;
f. the conduct of the accused after the offence, as alleged;
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g. whether the offence was repeated against the victim; or
whetherthe accused is a repeat offender under the POCSO
Act orotherwise;
h. whether the victim and the accused are so placed that the
accused would have easy access to the victim, if enlarged on
bail: the more the access, greater the reservation in granting
bail;
i. the comparative social standing of the victim and the
accused:this would give insight into whether the accused is
in adominating position to subvert the trial;
j. whether the offence alleged was perpetrated when the
victim and the accused were at an age of innocence: an
innocent,though unholy, physical alliance may be looked at
with less severity;
k. whether it appears there was tacit approval-in-fact,
though not consent-in-law, for the offence alleged;
l. whether the offence alleged was committed alone or along
with other persons, acting in a group or otherwise;
m. other similar real-life considerations.
The above factors are some cardinal considerations, though
farfrom exhaustive, that would guide the court in assessing
the egregiousness of the offence alleged ; and in deciding
which way the balance would tilt. At the end of the day
however, considering the myriad facets and nuances of real-
life situations, it is impossible to cast in stone all
considerations for grant or refusal of bail in light ofsection
29. The grant or denial of bail will remain, as always, in the
subjective satisfaction of a court; except that in view of
section 29,when a bail plea is being considered after charges
have been framed,the above additional factors should be
considered.
9. A coordinate bench of this court in Praduman V. The State
(Govt. of NCT, Delhi) &Anr., Bail Appl. no. 2380/2021 decided on
05.10.2021 granted bail to the accused person on the ground that the
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statements of the prosecutrix has contradictions. The relevant portion
of the judgment reads as:
20. A perusal of the above mentioned facts show that the
prosecutrix has given three different statements. In the
MLC which was conducted prior tothe FIR she does not
name the petitioner. The MLC was conducted because
prosecutrix who was below the age of 18 years was found to
be pregnant. The FIR was registered on the next day when
she named the petitioner. The statement of the prosecutrix
under Section 164 CrPC was recorded wherein she does not
name the petitioner.
X
X
22. Consensual sex has been in legal grey area because the
consent given by minor cannot be said to be a valid consent
in the eyes of law. The short question which arises is as to
whether the petitioner should be granted bail or not.
Whereas, what has become a trite and unfortunate practice
is that the Police are filing POCSO cases at the behest of the
family of a girl who object to her friendship and romantic
involvement with a young boy. The rigor of the law is
therefore being misapplied and subsequently misused. The
age of the petitioner and the prosecutrix, the photograph
which categorically pointed towards a relationship between
the two and the discrepancies in the statements given at the
time of the recordings of the MLC, the FIR and the
statement under Section 164 CrPCare all mitigating factors
which tilt the balance towards the grant of bail tothe
accused.
10. It is reflecting that the complainant/prosecutrix has taken 03
different stands in the complaint dated 18.10.2022 and the statement
under section 164 Cr.P.C. recorded on 19.10.2022 and at the time of
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his medical examination on 10.10.2022 at about 11:00 P.M. The
complainant/prosecutrix has also refused for internal medical
examination.
11. As stated hereinabove, the counsel for the petitioner argued that
the complainant/prosecutrix has taken different stands on 03 occasions
within 24 hours as such the entire complaint of the
complainant/prosecutrix is raising serious doubt to her version of
committed of rape/sexual assault by the petitioner. The
complainant/prosecutrix was aged about 16 years and as per the Status
Report, her date of birth was 30.06.2001. The petitioner is aged about
24 years. It is also pertaining to mention that the present FIR was also
got registered in the year 2020 and as per the allegations made by the
complainant/prosecutrix, the petitioner for the first time has
committed the act of rape/sexual assault in the year 2017 as such there
is a delay of 05 years in the registration of FIR which the prosecution
required to explain during the trial. The arguments advanced by the
Additional Public Prosecutor as referred hereinabove can be
considered during the trial of the case particularly, in light of the
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different stands taken by the complainant/prosecutrix as mentioned
hereinabove.
12. The petitioner is stated to have deep roots in the society and is
not a flight risk. The investigation has already been completed and the
petitioner is in judicial custody since 13.11.2022. After considering all
facts, the petitioner is admitted to bail on furnishing personal bond in
the sum of Rs.25,000/- (Rupees Twenty Five Thousand only) with 02
sureties of the like amount to the satisfaction of the concerned trial
court on the following conditions:-
i. That the petitioner shall not contact the
complainant/prosecutrix in any manner including
social media.
ii. After release from the jail, the petitioner shall
participate in the trial without any default unless and
until his personal appearance is exempted by the trial
court.
iii. The petitioner shall not extend threat or try to
influence the witnesses in any manner.
iv. The petitioner shall mark his presence in the concerned
local police station on 04th Friday of each English
Calendar month till the conclusion of the trial.
v. The petitioner shall not leave the country without prior
permission of the court.
vi. The petitioner is directed not to place any picture or
any other thing relating to the complainant/prosecutrix
on the social media in future.
vii. The petitioner shall provide his mobile/contact number
to the Investigating Officer immediately after release
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from the jail so that the petitioner can be contacted in
future.
viii. The petitioner shall provide his residential address as
well as contact mobile number in case, there is any
change to the trial court without any delay and not
later than 03 days.
13. The trial court is also expected to expedite the trial and
conclude without any delay.
14. The application stands disposed of along with pending
application, if any.
DR. SUDHIR KUMAR JAIN
(JUDGE)
DECEMBER 07, 2023
j/ak
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