Delhi High Court
Sakib Ahmed vs State Nct Of Delhi on 11 May, 2023
NEUTRAL CITATION NO. 2023:DHC:3268
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* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Decision: 11.05.2023
+ BAIL APPLN.1562/2023 & CRL.M.A. 12642/2023
SAKIB AHMED ..... Petitioner
Through: Appearance not given
versus
STATE NCT OF DELHI ..... Respondent
Through: Ms. Rupali Bandhopadhya, ASC
for the State, with SI Sanjeeta,
PS Jahangir Puri
Mr. Akshay Kumar & Mr.
Abhijeet Kumar, Advs.
CORAM:
HON'BLE MS. JUSTICE SWARANA KANTA SHARMA
JUDGMENT
Index to the Judgment
A. Facts of the Case .............................................................................. 2
B. Submissions of Applicant and State .............................................. 3
C. Judicial Precedents.......................................................................... 4
D. Considerations for Grant of Bail: Court's Opinion..................... 5
Balancing Fundamental Rights of the Accused and Victim while
considering Grant of Bail .................................................................. 5
E. Analysis and Findings ..................................................................... 6
Signature Not Verified
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NEUTRAL CITATION NO. 2023:DHC:3268
Innocent, consensual, teenage love relationship distinguished from
sexual abuse under threat, pressure, blackmailing and violence....... 6
F. Conclusion and Concerns of the Court ......................................... 9
G. Directions ....................................................................................... 10
SWARANA KANTA SHARMA, J. (ORAL)
CRL.M.A. 12642/2023
1. Allowed, subject to all just exceptions.
2. Application stands disposed of.
BAIL APPLN. 1562/2023
3. By way of present application filed under Section 439 of the Code
of Criminal Procedure, 1973 ('Cr.P.C.'), the accused/applicant seeks
regular bail in case FIR bearing no. 130/2023, registered at Police
Station Jahangir Puri, Delhi under Sections 328/376/506 of Indian Penal
Code, 1860 ('IPC') and Section 6 of Protection of Children from Sexual
Offences Act, 2012 ('POCSO Act').
A. Facts of the Case
4. The present FIR was registered on 22.01.2023 on the complaint of
prosecutrix wherein she had alleged that she had met and had become
friends with the applicant three years ago, after which, they had started
talking to each other on phone and gradually had fallen in love with each
other. It was alleged that one day in January-February, 2021, the
applicant had called the prosecutrix to his house and when she had
reached there, the applicant had offered her juice in a glass. It was
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NEUTRAL CITATION NO. 2023:DHC:3268
alleged that after drinking the juice, the prosecutrix had
become unconscious and upon gaining consciousness after an hour, she
had found herself lying naked. The applicant had thereafter told her that
he had made physical relations with her and had also videographed the
same. It is also alleged that the applicant had threatened the prosecutrix
to keep quiet, else he would post the pictures and videos on social media.
Under such threat, the prosecutrix had continued to talk to him. It was
further alleged that one year back, the applicant had again made physical
relations with her and he was now forcing her to marry him by changing
her religion. It was stated that on the day of lodging of present
complaint, the applicant had thrown eggs and stones at her house. During
investigation, the medical examination was conducted on 22.01.2023 and
the statement of prosecutrix under Section 164 Cr.P.C. was recorded on
23.01.2023.
B. Submissions of Applicant and State
5. Learned counsel for present accused/applicant submits that
applicant has been falsely implicated in the present case and the
allegations leveled against him are vague in nature. It is stated that
applicant and prosecutrix were known to each other for around three
years and relations between them were consensual in nature. It is stated
that the prosecutrix had also refused to undergo her internal medical
examination. It is also stated that investigation in the present case is
complete and charge sheet has already been filed. It is stated that
applicant has no criminal antecedents and he has been in judicial custody
since 22.02.2023.
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6. Per contra, learned APP for the State argues that the allegations
against the applicant are serious in nature and the prosecutrix has
supported her case in statement under Section 164 Cr.P.C. It is stated
that prosecutrix was minor at the time of incident. It is also stated that
charges are yet to be framed and prosecutrix is yet to be examined before
the learned Trial Court, and thus, no relief be granted at this stage.
7. This Court has heard arguments on behalf of both sides and has
perused the material on record.
C. Judicial Precedents
8. In Prasanta Kumar Sarkar v. Ashis Chatterjee (2010) 14 SCC
496, the Hon'ble Apex Court had laid down the factors to be considered
while granting bail to an accused, which read as under:
"...It is well settled that, among other circumstances, the
factors to be borne in mind while considering an application
for bail are:
(i) whether there is any prima facie or reasonable ground to
believe that the accused had committed the offence;
(ii) nature and gravity of the accusation;
(iii) severity of the punishment in the event of conviction;
(iv) danger of the accused absconding or fleeing, if released
on bail;
(v) character, behaviour, means, position and standing of the
accused;
(vi) likelihood of the offence being repeated;
(vii) reasonable apprehension of the witnesses being
influenced; and
(viii) danger, of course, of justice being thwarted by grant of
bail..."
9. The Hon'ble Apex Court in Sudha Singh v. State of Uttar
Pradesh (2021) 4 SCC 781 had observed as under:
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"11. There is no doubt that liberty is important, even that of a
person charged with crime but it is important for the courts to
recognise the potential threat to the life and liberty of
victims/witnesses, if such accused is released on bail."
D. Considerations for Grant of Bail: Court's Opinion
Balancing Fundamental Rights of the Accused and Victim while
considering Grant of Bail
10. Bail is granted to an accused charged with a criminal offence to
release him from custody or detention, awaiting commencement and
conclusion of trial. As per settled law, the evidence against the accused
and other factors which assists the Court in decision making will include,
amongst other factors as mentioned in preceding paragraphs, not only the
seriousness of the charge, but also keep in mind the actual threat or
attempted threat or violence in the past to threaten the witness from
deposing before the Court. It is duty of the Court to ensure the safety and
security of the victim while making decision for grant or refusal of bail.
It is essential to ensure the security and safety of the victims and
witnesses since fair judicial decision making process has to ensure that
the victims are able to appear before the Court and provide information
and evidence fearlessly. In case there is material on record which points
to the contrary and reflects that release of the accused could affect safety
and security of the victims, and the victims have legitimate concerns
about potential of the accused to threaten and harm him or her, it will be
a key consideration while deciding a bail application. While it is a
fundamental right of accused to personal liberty, the Constitution gives
right to life, liberty and security to the victim also.
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11. Since these constitutional rights are for the accused as well as for
the victim, the Court while granting bail has to balance both their rights
in the backdrop of the facts of the case and the judicial precedents. The
apprehension of such tampering, threats or violence has to be real and
not vague.
E. Analysis and Findings
Innocent, consensual, teenage love relationship distinguished from
sexual abuse under threat, pressure, blackmailing and violence
12. The contention of learned counsel for the applicant that the
prosecutrix herself was in a consensual relationship and therefore, now
cannot take a plea that she had been sexually assaulted is not tenable at
this stage.
13. The record reveals that that applicant had not only made physical
relations with her on the pretext of getting married to her and had
continued to do so, but he had also videographed the same. Thereafter,
he had kept on sexually assaulting her after threatening her that the
photographs of their sexual relationship and videos of the same will be
uploaded on the social media. The prosecutrix, therefore, in this case was
put under threat of being defamed and embarrassed by posting the
photographs and the video on the social media. The FIR further reveals
that though initially, the sexual relations were made on the pretext of
marriage, thereafter, the same were under threat and he had repeatedly
exploited her sexually against her will under the abovesaid threat. In her
statement recorded under Section 164 Cr.P.C., the prosecutrix has also
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stated that the accused had exploited her, taking advantage of her trust
upon him that he will get married to her and had continued to sexually
abuse her. Thereafter, by blackmailing her he continued to sexually
abuse her. Therefore, due to such conduct, she had asked him that she
does not want to have any relationship with him, however, he had again
threatened her that he will reveal everything to her parents. What is more
disturbing to note in this case is that when she did not want to have any
relationship with him, he started going to her tuition classes and
threatening her. He also threatened her that she will have to change her
religion to get married to him or otherwise, he will post the photographs
and videos of the relationship on social media. There are also allegations
that on 10/11.01.2023, he had thrown eggs and stone at her house and
had also threatened her family since she had disclosed the entire thing to
her family after he had started abusing her.
14. The contention of learned counsel for the applicant is that the
present case is a case of adolescent love as the accused is about 19 years
of age and the prosecutrix is only 17 years. Learned counsel for
applicant, during the course of arguments, also stated that this Bench in a
recent judgment of Mahesh Kumar v. State (NCT of Delhi) Bail Appln.
1240/2023 has laid down in that "the teenage psychology and adolescent
love cannot be controlled by the Courts and therefore the judges have to
be careful while rejecting or granting bail in such cases".
15. This Court, however, is unable to agree with the contention raised
on behalf of the applicant. This judgment rather, instead of helping the
applicant, goes against him as the facts of the said case were entirely
different where the prosecutrix had consistently supported the accused
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and had stated that he had neither sexually assaulted her nor induced,
abused or blackmailed her for anything and it was she herself who had
wanted to go with him, live with him and wanted to get married with
him. Therefore, taking note of such dissimilarity between cases which
are reported and brought before this Court, this Court rather by way of
abandoned caution had itself observed as under:
"18. This Court, as a note of caution while granting bail in this
case and making the above observations, clarifies that every
case of such nature has to be adjudged on its own peculiar
facts and circumstances, and the age being in shadow of doubt
as well as the consistency in the statement of the prosecutrix
and lack of inducement or threat in such cases has to be
adjudicated on facts and circumstances of each case."
16. The present case is distinguishable from the case cited before
this Court, as in the case at hand, the accused has not only made video
recordings and photographs of their relationship but also has
continuously threatened to post it on social media and under the said
threat, he had continued to sexually exploit her. This case, therefore,
does not fall under the category of those cases where the relationship is
consensual without any threat or criminality. Moreover, there are
specific allegations in this case that due to the violent and abusive
behavior of the accused and continuous threats and blackmailing, the
prosecutrix herein wanted to break the relationship, however, he did not
let her live in peace and also started harassing her in tuition classes. He
also started threatening her that in case, she will not change her religion
and get married to him, he will post the videos and photographs of both
of them on social media. This case, therefore, is a case of sexual assault
of the victim based on preparing inappropriate videos and photographs of
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the prosecutrix which belies the claim of the learned counsel for the
applicant that it was an innocent teenage mutual love between the
parties. Had it been so, the accused would not have prepared/recorded
inappropriate intimate videos and photographs of himself and the
prosecutrix to threaten to post them on social media. Furthermore, the
accused has also threatened the family of the prosecutrix by going to
their home and also throwing eggs and stones at their house.
17. To sum up, had it been a case of consensual adolescent mutual
love as argued by the learned counsel for the applicant, it would
have no place of abusing, blackmailing, inducement, threat, violence,
pressurising and threatening her to convert to his religion for the
purpose of forcibly getting married to her even when she wanted to
get out of the abusive relationship. She was put under fear and
threat of social shaming of herself and her family, which does not
indicate that it was a consensual innocent adolescent mutual love
relationship.
18. Rather, the gravity of offence is aggravated by the fact that the
accused was threatening to make public the intimate videos and images
that he had captured without consent of the prosecutrix and was using it
to blackmail her, and in return was asking for sexual favours. Thus, he
was using the sexualised photos and videos as a tool to threaten, socially
shame, embarrass, defame and blackmail her to coerce her into sexual
relationship.
F. Conclusion and Concerns of the Court
19. In view of the foregoing discussion, and considering the fact that
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the applicant/accused is continuously threatening and blackmailing the
prosecutrix and the charges are yet to be framed and the prosecutrix is
yet to be examined, this Court is not inclined to grant any relief to the
applicant at this stage.
20. This Court also notes that in a large percentage of cases of sexual
assault received by this Court, the victims have alleged that inappropriate
videos or photographs of relationships are made by one of the parties and
under threat of posting them on social media, the minor girls are sexually
abused who do not understand or know as to how to deal with such
situations. Therefore, in cases of sexual assault without consent or under
some inducement, inappropriate videos and photographs are captured
which are used for a long time for blackmailing the victims and
continuing the sexual abuse. Even at times, this Court has witnessed
cases where young boys have been sexually abused, assaulted and have
been victims of such blackmailing.
G. Directions
21. In light of the aforesaid observations, this Court requests Delhi
State Legal Services Authority (DSLSA) to formulate a programme
whereby they may educate the students, potential vulnerable victims as
well as educating the teenagers who may indulge in such crimes without
knowing that posting such intimate content on social media without
consent of the person concerned is in violation of law.
22. Accordingly, the present application stands disposed with above
directions,
23. A copy of this judgment be forwarded to Delhi State Legal
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Services Authority (DSLSA) for ensuring compliance.
24. It is, however, clarified that the aforesaid observations made by
this Court shall have no bearing on the merits of the case.
25. The judgment be uploaded on the website forthwith.
SWARANA KANTA SHARMA, J
MAY 11, 2023/ns
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