Amit Mahajan, J
1. By the present bail application, the applicant seeks regular bail in FIR No. 850/2021 dated 12.07.2021, registered at Police Station Sultanpuri, for offences under Sections 323/376/498A of the Indian Penal Code, 1860 (IPC), Section 6 of the Protection of Children from Sexual Offences Act, 2012 (POCSO) and Sections 9/10 of the Prohibition of Child Marriage Act, 2006 (PCM Act).
2. It is the case of the prosecution that on 11.07.2021, information was received vide DD No. 160A from Sanjay Gandhi Hospital regarding a minor girl aged 16 years old, being 7 months pregnant. The statement of the victim was recorded on 12.07.2021, wherein she stated that she knew accused/Ankush @ Dalchand since 2020 and they had affectionate feelings towards each other. Their marriage was fixed for 25.11.2020 and 10 days prior to the marriage, i.e. on 14.11.2020, the accused/Applicant took her to Bush Vihar and forcefully established physical relations with her, by threatening her to viral her obscene videos recorded by him without her consent.
3. It is further the case the prosecution that they got married on 25.11.2020, however after the marriage of the parties, in December 2020, the victim was forced to consume MTP Pills and she conceived again in March 2021. It is further alleged that the Applicant and his family members started beating the victim and started raising dowry demands. It is alleged that on 11.07.2021, the Applicant and his family members beat the victim, who was pregnant at that time and inflicted injuries upon her, which led to the registration of the subject FIR.
4. During investigation the Applicant, was arrested on 12.07.2021 and subsequently, the chargesheet under sections 313/323/376/498A of the IPC, Section 6 of the POCSO Act and Section 10 of the PCM Act, was filed against the Applicant and the family members of the victim as well as of the accused.
5. The charges have been framed under sections 313/323/376/505 of the IPC, Section 6 of the POCSO Act and Section 10 of the PCM Act, against the Applicant.
6. By order dated 22.11.2021, the learned Trial Court admitted the Applicant on bail, noting that the marriage between the parties was solemnized with consent of their parents and the victim has also delivered a child and therefore, the Applicant was not required for further custodial interrogation.
7. The applicant was released on 24.11.2021. However, he was subsequently arrested and his bail was cancelled on 21.04.2023, as the FIR No. 230/2023 dated 09.03.2023, was registered at Police Station Sultan puri, against the Applicant for assaulting the brother of the victim and the daughter of the victim. The applicant was taken into custody on 21.04.2023 and has been in custody since then.
8. The learned Counsel for the Applicant submits that admittedly, the parties were in a consensual relationship and willingly got married on 25.11.2020. However, due to marital discord between the parties and adjustment issues, the victim has falsely implicated the Applicant as the relationship turned sour, and she got involved in an extra-marital affair.
9. He submits that on the date of the registration of the subsequent FIR No. 230/2023, the entire quarrel was initiated by the family members of the victim, as they disapproved the victim attempting to stay in touch with the Applicant. He further submits that he has already been released on Bail in the said FIR.
10. He further submits that pursuant to his re-arrest, the applicant has been in custody for more than 30 months and no purpose would be served by keeping him in further incarceration. Out of 22 witnesses, only 8 have been examined, including the victim and the public witnesses, and thus, the trial is not likely to conclude in the near future.
11. He submits that appropriate conditions be put in order to allay the fear of the victim being subjected to harassment on release of the Applicant.
12. Per contra, the learned Additional Public Prosecutor for the State opposed the grant of any relief to the Applicant. He submits that the allegations against the accused are serious in nature and he has misused the liberty granted to him. The present case is at the stage of prosecution evidence and there is stout apprehension that if released on bail, the Applicant may try to threaten the victim and the witnesses or tamper with the evidence.
13. The victim is present in Court and states that she is now residing with her family and is also considering taking steps for dissolution of marriage with the Applicant. She, however, fears that once the applicant is released on bail, he may further try to threaten her.
14. Submission heard and the material placed on record has been perused.
15. It is settled law that the Court, while considering the application for grant of bail, has to keep certain factors in mind, such as, whether there is a prima facie case or reasonable ground to believe that the accused has committed the offence; the nature and gravity of the accusation; severity of the punishment in the event of conviction; the danger of the accused absconding or fleeing if released on bail; reasonable apprehension of the witnesses being threatened; etc. However, at the same time, period of incarceration is also a relevant factor that is to be considered.
16. As noted above, the Applicant had already been admitted on bail by the learned Trial Court by observing that the marriage was solemnized with the consent of the parents of the parties and the victim has also delivered a child. It was further observed that the chargesheet has already been filed and thus, custodial interrogation is not required of the Applicant.
17. Admittedly, the present bail is sought, since he was re-arrested in FIR No. 230/2023, for violating the conditions of bail granted. However, it is not disputed that the Applicant has also been admitted on bail in FIR No. 230/2023 registered at Police Station Sultanpuri. In any case, the charges have been framed against the accused, under section 324 of the IPC, and the veracity of the allegations levelled and defence raised, will be subject matter of trial.
18. It is further pointed out that the victim and other public witnesses have already been examined. Thus, there is no likelihood of influencing the witnesses.
19. Pursuant to his re-arrest, the Applicant has spent about 30 months, i.e. more than 2.5 years in judicial custody. However, only 8 witnesses have been examined out of 22 witnesses, and the trial is likely to take considerable time.
20. The Applicant cannot be made to spend the entire period of trial in custody, specially when the trial is likely to take considerable time as 14 witnesses are yet to be examined. In the opinion of this Court, no purpose would be served by keeping the applicant in further custody.
21. The Honble Apex Court in the case of Union of India v. K.A. Najeeb: AIR 2021 SC 712 held that once it is obvious that a timely trial would not be possible, and the accused has suffered incarceration for a significant period of time, the courts would ordinarily be obligated to enlarge them on bail.
22. The Honble Apex Court in the case of Javed Gulam Nabi Shaikh v. State of Maharashtra and Another : Crl.A.2787/2024 has observed as under:
19. If the State or any prosecuting agency including the court concerned has no wherewithal to provide or protect the fundamental right of an accused to have a speedy trial as enshrined under Article 21 of the Constitution then the State or any other prosecuting agency should not oppose the plea for bail on the ground that the crime committed is serious. Article 21 of the Constitution applies irrespective of the nature of the crime.
20. We may hasten to add that the petitioner is still an accused; not a convict. The over-arching postulate of criminal jurisprudence that an accused is presumed to be innocent until proven guilty cannot be brushed aside lightly, howsoever stringent the penal law may be.
23. However, considering the totality of circumstances, appropriate conditions ought to be put to allay the apprehension of the applicant tampering with the evidence or evading the trial.
24. In view of the above, the Applicant is admitted on bail and is directed to be released on furnishing a personal bond for a sum of ₹20,000/- with one surety of the like amount, subject to the satisfaction of the learned Trial Court, on the following conditions:
a. The Applicant shall under no circumstance leave the country without the permission of the learned Trial Court;
b. The Applicant shall appear before the learned Trial Court as and when directed;
c. The Applicant shall, upon his release, provide the address where he will reside, which should be at least 5 KM far from the locality where the prosecutrix resides, subject to the satisfaction of the IO/SHO. The Applicant shall not change the address without informing the concerned IO/SHO;
d. The Applicant shall, upon his release, give his mobile number to the concerned IO/SHO and shall keep his mobile phone switched on at all times;
e. The Applicant shall not contact the victim, her family members or the witnesses, in any manner whatsoever;
f. The applicant shall mark his presence before the IO once every two weeks.
25. If the Applicant, at any stage, is found to have violated any of the conditions, the Police is directed to take appropriate action promptly.
26. In the event of there being any FIR/DD entry/complaint lodged against the Applicant, it would be open to the respondent to seek redressal by filing an application seeking cancellation of bail.
27. It is clarified that the observations made in the present order are only for the purpose of deciding the present bail application and should not influence the outcome of the trial and also not be taken as an expression of opinion on the merits of the case.
28. The bail application is allowed in the aforementioned terms and pending application(s), if any, also stand disposed of.
