Mr. Vivek Sood, Senior Advocate with Mr. Jitendra Kumar Singh, Mr. Shashwat Bhardwaj, Mr v. THE STATE OF NCT OF DELHI & ANR

afore-noted FIR, the Applicant has been charged with Sections 376/506 of IPC and Section 4 of POCSO.

2. The case of the prosecution, in brief, is as follows:

2.1. On 27th March, 2021, a PCR call under DD No. 80A was received at Police Station Mehrauli by one Ms. ‘R’ (the Complainant) alleging that her daughter, Ms. ‘S’, aged approximately 16 years, (the Prosecutrix) has been raped.

2.2. A day later, the Complainant arrived at the police station along with the Prosecutrix levelling allegations of sexual assault of Ms. ‘S’. The medical examination of Ms. ‘S’ was conducted at AIIMS Hospital where she and her mother, denied for internal gynaecological examination. On 28th March, 2021, Ms. ‘R’ filed a complaint wherein she alleged that her daughter, Ms. ‘S’ went to the vegetable market in Mehrauli where one boy namely Mr. Shivam Bhardwaj (the Applicant) runs a Paan shop. She stated that the Applicant and the Prosecutrix had been in conversation since long. She further alleged that on 4th / 5th March, 2021, the Applicant induced her daughter and called her in his room which is in the basement opposite of his Paan shop and raped her. On 9th March, 2021, the Prosecutrix contacted the Applicant using the mobile phone of her elder daughter which was on recording mode and her elder daughter heard that recording of aforesaid conversation. The elder daughter subsequently revealed the said recording to the Complainant on 25th March, 2021. Pursuant to this, she enquired Ms. ‘S’ upon which she narrated that the Applicant deceitfully took her to his room where he locked the door, did not let her go and raped her. On 27th March, 2021, the Complainant contacted the Applicant on the mobile number as provided by Ms. ‘S’ upon which the Applicant informed that he used to sell BAIL APPLN. 1082/2024 This is a digitally signed order. The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 24/01/2025 at 16:39:00 liquor and drugs. When the Complainant visited the Applicant, she confronted the Applicant as to how he knew Ms. ‘S’, upon which the Applicant pushed her and ran away. After this incident she raised a PCR call. The Complainant also clarified that she could not get medical examination of the Prosecutrix on 27th March, 2021 due to some personal reasons and the same was conducted on 28th March, 2021.

2.3. The Complainant further alleged that the Applicant’s mother and sister have been threatening and abusing her. On the aforesaid complaint of Ms. ‘R’, the present FIR was registered and further investigation was conducted by PSI Jyoti.

2.4. During the course of investigation, the site plan was prepared and the statements under Section 164 of CrPC of Ms. ‘S’ were recorded wherein she corroborated the allegations made in the initial complaint. The Complainant was served a notice to provide the mobile phone containing the call recording as alleged in her complaint, however, she denied to provide it citing personal reasons. The relevant documents to determine the age the Prosecutrix were collected from which her date of birth was revealed to be 27th September, 2005 i.e., she aged more than 15 years on the day of alleged incident.

2.5. The Applicant was arrested on 7th July, 2021 and sent to judicial custody after conducting his potency test.

2.6. During the course of investigation, the certified CDRs and CAFs of mobile numbers of the Applicant and the Complainant were analysed upon which it was revealed that there were sufficient conversations between the two mobile numbers.

2.7. During the course of investigation, Section 506 of IPC was invoked BAIL APPLN. 1082/2024 This is a digitally signed order. The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 24/01/2025 at 16:39:00 against the Applicant and Section 509 of IPC was invoked against the Applicant’s mother and sister, who were also interrogated. Thereafter, chargesheet under Sections 376/506 of IPC read with Section 4 of POCSO against the Applicant and under Section 509 IPC against the Applicant’s mother and sister was filed.

2.8. In compliance with the Trial Court’s directions, the Complainant submitted a mobile phone, claiming that it contained the call recording referenced in her initial complaint. The device was subsequently sent to the FSL for examination. However, as per the FSL report, no data could be retrieved from the mobile phone. The findings of the FSL were submitted before the Trial Court by way of a supplementary chargesheet.

3. In this background, the Applicant advances the following in support of his request for bail:

3.1. The Applicant has been falsely implicated by the Complainant. The Applicant and the Prosecutrix have known each other since 2021 and have maintained regular contact during this period. The Applicant, being Hindu, and the Prosecutrix, being Muslim, faced resistance from the Complainant due to their differing religious backgrounds. Upon becoming aware of their relationship, the Complainant, with the intent to harass the Applicant, deliberately lodged the present FIR.

3.2. The Complainant allegedly became aware of the alleged incident on 25th March, 2021, nearly 20 days after the date of the purported incident. This substantial delay in reporting raises questions regarding the authenticity and credibility of the allegations.

3.3. The mobile phone presented as evidence before the Trial Court did not contain any recording supporting the claims made by the Complainant. BAIL APPLN. 1082/2024 This is a digitally signed order. The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 24/01/2025 at 16:39:00 The absence of such critical evidence undermines the veracity of the allegations and creates reasonable doubt about their legitimacy.

3.4. Furthermore, the Applicant contends that he and the Prosecutrix continued their relationship even after the alleged incident, a fact supported by the CDRs, which reveal frequent communication between the two since January, 2021. This sequence of events is further corroborated by the supplementary statement of the Complainant recorded under Section 161 of the CrPC, wherein the Complainant admitted that the phone containing the purported recording belonged to the Complainant’s elder daughter. The Complainant also acknowledged having deleted most of the phone’s content.

3.5. In the statement made by the Complainant before the Trial Court on 1st August, 2022, no allegations of rape were made against the Applicant. However, during her examination-in-chief on 23rd February, 2024, she reiterated the accusations originally mentioned in the FIR. This significant shift in her testimony raises concerns about the consistency and reliability of her claims.

3.6. The alleged incident reportedly occurred in a crowded location that is frequently visited by the Prosecutrix. However, no independent or public witnesses have been examined by the prosecution to substantiate the claims.

3.7. The Applicant has no criminal antecedents and undertakes to abide by the conditions of this Court, if bail were to be granted.

4. Per contra, Mr. Mukesh Kumar, APP for the State, and Ms. Kamna Vohra, Counsel for the Prosecutrix, strongly oppose the Applicant’s request for bail and submits the following:

4.1. At the time of the incident, the Prosecutrix was more than 15 years old. During the pendency of the trial, the Complainant and the Prosecutrix BAIL APPLN. 1082/2024 This is a digitally signed order. The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 24/01/2025 at 16:39:00 have been subjected to threats and physical assault by the Applicant and his family members. One such incident took place in the premises of the Saket Courts, at the time of recording of evidence of the Prosecutrix. The Applicant’s family has issued threats to the Complainant, coercing them to settle the matter and warning of severe consequences. Several complaints regarding these incidents have been filed with the office of the concerned Commissioner of Police. Consequently, the Delhi Witness Protection Committee granted protection to the Complainant and the Prosecutrix.

4.2. The statements of both the Complainant and the Prosecutrix, as recorded during the trial, unequivocally support the prosecution’s case. These testimonies, recorded on 24th May, 2022 before the Trial Court, detail the threats and intimidation faced by the Prosecutrix at the hands of the Applicant. Specifically, the Prosecutrix testified that the Applicant threatened her, warning that if she disclosed the incident, his friends would subject her to similar harm. This testimony regarding the occurrence of the incident and subsequent threats remains uncontested, as there was no cross- examination challenging these critical aspects.

4.3. In light of the past instances of threats, intimidation and assault, there is a significant apprehension that granting bail to the Applicant could jeopardize the safety and well-being of the Complainant and the Prosecutrix. The Applicant’s release might cause a risk to their lives, further compromising their security.

5. The Court has considered the facts of the case and the contentions advanced by the parties. It is well-established that there are several factors that must be considered when evaluating a bail application, including whether there is a prima facie case or reasonable grounds to believe the BAIL APPLN. 1082/2024 This is a digitally signed order. The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 24/01/2025 at 16:39:00 accused has committed the offence, the likelihood of the accused repeating the offence, the nature and seriousness of the accusation, the severity of the potential punishment upon conviction, the risk of the accused absconding or fleeing if granted bail and the reasonable apprehension of witnesses being intimidated by the accused.4 In the present case, the prosecution’s case hinges primarily on the sole testimony of the Prosecutrix, without any corroborative material such as medical or scientific evidence to substantiate the allegations.

6. Pertinently, the investigation has been completed and chargesheet has been filed and the prosecution evidence has been recorded before the Trial Court.

7. The prosecution’s case relies on the call recording wherein the Applicant and the Prosecutrix have been found to be conversing after the alleged incident. However, the Complainant, in her supplementary statement recorded under Section 161 of CrPC on 1st October, 2021, admitted that the phone containing the recording belonged to her elder daughter and that she had deleted most of the material from the phone. This admission is further corroborated by the FSL analysis, which confirmed that no recoverable data was found on the mobile phone produced before the Trial Court.

8. The allegations against the Applicant pertain to an offence of sexual assault, which carries grave legal consequences. The Applicant asserts that he and the Prosecutrix were in known to each other, a claim supported by the CDRs, indicating consistent communication between them since 2021. Conversely, the Complainant alleges that the Applicant acted deceitfully, 4 Prasanta Kumar Sarkar v. Ashis Chatterjee & Another, (2010) 14 SCC 496 BAIL APPLN. 1082/2024 This is a digitally signed order. The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 24/01/2025 at 16:39:00 leading to the alleged incident. The Court is mindful of the sensitive nature of such allegations and the socio-religious context presented by the parties, where the Applicant is Hindu and the Prosecutrix is Muslim, which has been alleged as a source of tension. However, at this stage, these assertions remain allegations requiring a detailed factual inquiry during trial. At this stage, the Court is required to undertake a prima facie assessment and is not tasked with determining the veracity of the allegations.

9. It is also pertinent to note that there is a delay of 20 days in filing the FIR. This, in the prima facie opinion of the Court, can be a significant factor that can cast doubt on the credibility of the allegations made by the Complainant. The alleged incident is said to have occurred on 4th /5th March, 2021, but the FIR was registered only on 28th March, 2021, after a PCR call was made on 27th March, 2021. Moreover, on 27th March, 2021, when the PCR call was made, the Complainant refused to co-operate with the police in conducting the medical examination of the Prosecutrix. This refusal delayed the examination until the following day, 28th March 2021. The explanation provided by the Complainant for this delay, stating that she needed to consult her mother-in-law before proceeding does not seem to be a plausible explanation, particularly in a case involving such serious allegations.

10. As regards the Complainant’s allegations of criminal intimidation by the Applicant and his family are concerned, this Court on 29th November, 2024 has issued directions to the concerned SHO to take action on the complaints made by the Prosecutrix. Nonetheless, sufficient conditions can be imposed on the grant of bail in order to mitigate any risk to the life of the Complainant and the Prosecutrix. BAIL APPLN. 1082/2024 This is a digitally signed order. The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 24/01/2025 at 16:39:00

11. The Applicant has been in custody for more than 3 years i.e., since 7th July, 2021. During this time, he has been granted interim bail by this Court and there is no material on record to suggest that the Applicant misused the liberty granted to him during this period. This compliance with bail conditions indicates that the Applicant has respected the Court’s directions and does not pose an immediate threat to delay the trial.

12. In view of the foregoing, considering the completion of prosecution evidence, the absence of corroborative evidence such as the alleged call recording and the contentious issues that remain to be examined at trial, the continued incarceration of the Applicant is deemed unnecessary.

13. The Applicant is, therefore, directed to be released on bail on furnishing a personal bond for a sum of INR 50,000/- with two sureties of the like amount, subject to the satisfaction of the Trial Court, on the following conditions: a. The Applicant shall not directly or indirectly make any inducement, threat or promise to any person acquainted with the facts of the case or tamper with the evidence of the case, in any manner whatsoever; b. The Applicant shall not contact the Prosecutrix or any of her family members; c. The Applicant shall under no circumstance leave the territory of Delhi NCR without the permission of the Trial Court; d. The Applicant shall appear before the Trial Court as and when directed; e. The Applicant shall also report to the concerned I.O. on first Monday of every month. f. The Applicant shall provide the address where he would be residing BAIL APPLN. 1082/2024 This is a digitally signed order. The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 24/01/2025 at 16:39:00 after his release and shall not change the address without informing the concerned IO/ SHO; g. The Applicant shall not reside within 3 Km radius of the residence of the Prosecutrix and shall also furnish proof of his residence to the concerned IO. The Applicant shall also not move in the vicinity of the Prosecutrix in any manner; h. 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;

14. In the event of there being any FIR/DD entry/complaint lodged against the Applicant, it would be open to the State to seek redressal by filing an application seeking cancellation of bail.

15. It is clarified that any observations made in the present order are 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.

16. The bail application is allowed in the afore-mentioned terms. JANUARY 22, 2025/d.negi SANJEEV NARULA, J BAIL APPLN. 1082/2024 This is a digitally signed order. The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 24/01/2025 at 16:39:00