Ms. Ayesha Zaidi, Mr. Ahmad Ibrahim Mr. Jeet Chakrabarti, Advs v. THE STATE OF NCT OF DELHI

Through: Mr. Ajay Vikram Singh, APP for the State. W/SI Neha, P.S. Mehrauli. Mr. Arun Sri Kumar & Ms. Saumya Sinha, Advs. for survivour. CORAM: HON'BLE MR. JUSTICE AMIT SHARMA O R D E R 04.02.2025 This is the second application seeking regular bail under Sections 439 read with 482 of the Cr.P.C. before this Court in case FIR no. 427/2018 under Sections 376/376D/506/34 of the IPC and Section 6 of the POCSO Act. The first application was rejected by the Co-ordinate Bench of this Court vide order dated 10.12.2021 in BAIL APPLN. 3082/2021.

2. The case of the prosecution as per the Status Report dated 26.10.2024 authored by Insp. Akhilesh Bajpai, SHO PS Mehrauli, New Delhi is as follows: “1. Most respectfully it is submitted that the abovementioned case was registered on the complaint of complainant Ms. 'M' D/o 'H' R/o XXX wherein she stated that when she was in class 5, she met one boy namely XXX (name redacted, since being tried by JJB) who asked her for friendship 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 06/02/2025 at 14:37:53 but she denied. Thereafter, he continuously asked her for being his friend and accompany him roaming around and started following her, therefore she became his friend. After 2-3 months, XXX took the victim in the jungle of lnderpuri after her school hours and committed rape upon her. Same time, four of his friends namely Rohit, Atul, Sachin and Anurag also came there and pressurized her for having sexual relationship with them too. When she denied, they said that they have recorded her video and showed her the same. On the pretext of making her video viral, XXX threatened her to establish sexual relations with his said four friends. Thereafter, all four of them committed rape upon her. Since then , all five of them had been doing wrong with her. All five of them used to contact her on her mother's phone and whenever she used to deny for having sex with them or talk with them, they used to threaten her for leaking her obscene video. She has further stated that when she met XXX 2-3 days back, informed him that she has not menstruated since March 2018 . She has further stated that today XXX met her outside the school and took her in the jungles of Mehrauli and raped her and told her not to reveal this to anyone and further told her to elope with him when he will come one or today days after. When she disagreed to his demand, he threatened to kill her and making her video viral and further that he will get her sisters kidnapped. She got frightened and narrated whole of the incident to her mother and lodged the complaint. From the contents of the complaint, the present case vide FIR No - 427 / 18 was got registered u/ s 376/376D/506/34 IPC & 6 POCSO ACT and investigation taken up by W /SI Nisha.

3. After the registration of aforesaid FIR, during the course of the investigation, the statement of the survivour was recorded under Section 164 of the Cr.P.C.. She was sent to AIIMS for complete medical examination and permission was sought for medical termination of pregnancy. The present applicant alongwith other co-accused persons were arrested and as per the case of the prosecution, the age of the survivour at the time of registration of FIR was 17 years. The chargesheet in the present matter has been filed including the supplementary chargesheet and the matter is at the stage of prosecution evidence.

4. Learned counsel appearing on behalf of the applicant at the very 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 06/02/2025 at 14:37:53 outset submits that all other co-accused persons in the present case, i.e., Rohit, Hashina Khatoon, Ravinder, Anurag Yadav and XXX (name redacted, since being tried by JJB) , have already been granted bail and the present applicant is the only one, who is in judicial custody in the present case. It was submitted that there is an application filed on behalf of the applicant regarding his claim of being a juvenile, as the date of birth of the present applicant was stated to be 03.01.2000 and the present FIR was registered on 10.07.2018. It was submitted that the allegation qua the present applicant had pertained to certain incidents which had occurred even prior to the registration of FIR, at which time he was a juvenile. It is further submitted that on the DNA examination being done, the samples of the present applicant had not matched with the sample from the foetus of the survivour and samples from neither of the other co-accused persons were also found matching. It is further submitted that no recovery of the alleged video has been made from the phone of the present applicant.

5. Furthermore, it is pointed out by the learned counsel for the applicant that the survivour in her statement under Section 161 of the Cr.P.C dated 26.07.2018 had stated that she was not in contact with the accused persons since 1.5-2 years through her mobile phone, therefore, implying that the age of the applicant was less than 18 years at the time of alleged incident. It is further submitted that the previous application for bail was dismissed by the Coordinate Bench of this Court by observing that the Court was not inclined to grant bail till the examination of the survivour and the Trial Court was requested to expedite the trial. It is pointed out that after passing of the said order, only the survivour, her mother, uncle and one doctor has been examined. It is submitted that out 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 06/02/2025 at 14:37:53 of 27 prosecution witnesses, only 4 have been examined till date. Furthermore, it is pointed out that the applicant has been in custody since

10.07.2018 bringing his custody period to more than 6 years. The applicant is currently aged 25 years and at the time when he was arrested, he was approximately 19 years of age.

6. Per contra, learned APP for State, assisted by learned counsel for the survivour, has submitted that the offence in the present FIR is heinous in nature. The survivour, who was a minor at the time of offence, was repeatedly sexually assaulted by the accused persons. It is further submitted that in the previous application seeking bail, the Co-ordinate Bench of this Court had observed that since notices were not issued to the survivour in bail applications of Ravindra and Anurag, the principle of parity will not apply. It is further submitted that so far as the DNA is concerned, it is the case of the prosecution that there is one more accused, who is still absconding. It is further submitted that the survivour has been examined before the learned Trial Court and she has categorically named the present applicant as one of the perpetrators of the crime committed upon her. It is further submitted that the evidence in the present case is sufficient and therefore the present application should not be allowed.

8. Heard learned counsel for the parties and perused the records. It is a matter of record that the co-accused Hashina Khatoon was granted bail by the learned Trial Court vide order dated 08.01.2019. The co- accused Ravinder was granted bail by a coordinate Bench of this Court vide order dated 07.12.2020 in BAIL APPLN. 3502/2020. The other-accused Anurag was also granted bail by a coordinate Bench of this Court vide order dated 19.02.2021 in BAIL APPLN. 62/2021. It is pertinent to note that none 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 06/02/2025 at 14:37:53 of these orders have been subject to any challenge. It is also matter of record that co-accused Sachin, was also granted bail by the learned Trial Court vide order dated 01.12.2021 as he was granted interim bail by the learned Trial Court on 18.07.2019 and keeping in view of his medical condition, he was thereafter granted permanent bail. The other co-accused xxxxx, has since been declared a juvenile and his trial has been separated and placed before the concerned JJB.

9. The coordinate Bench of this Court while dismissing the application for bail of the present applicant, had observed as under: “16. This Court is, therefore, not inclined to grant bail to the petitioners till the examination of prosecutrix. 17. Considering the fact that the petitioners are youngsters, the Trial Court is requested to expedite the trial and examine the prosecutrix within a period of six months from today. 18. The petitioners are at liberty to approach the competent Court after the prosecutrix is examined.”

10. While dismissing the bail, the coordinate Bench of this Court had examined the merits and after dealing with the same, dismissed the application by giving an opportunity to the applicant to apply afresh after examination of the survivour. It is also noted that after passing of the said order on

10.12.2021, till date only 4 witnesses out of 27 witnesses cited by the prosecution have been examined. This Court is conscious of the seriousness of the present case, however, the Court cannot ignore the fact that except for the present applicant, all other co-accused persons, against whom similar roles have been alleged are on bail. There is nothing which has been placed on record by the prosecution to show that on account of the aforesaid accused persons being released on bail, there was threat extended to the survivour or 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 06/02/2025 at 14:37:53 her family members.

11. The Nominal roll dated 04.09.2024 authored by Superintendent of Prison, Central Jail No. 8/9, Delhi reflects that as on 31.08.2024, the applicant had undergone a judicial incarceration of 6 years 1 month and 22 days, which comes to a custody period of 6 years 7 months approximately as of today and his jail conduct was satisfactory. The applicant is not involved in any other offence. In these circumstances and also the fact that only 4 prosecution witnesses out of 27 have been examined by the prosecution so far and that all other co-accused persons are already enlarged on bail, this Court is of the considered opinion that the applicant be released on bail.

12. In the peculiar facts and circumstances of the case, the present application is allowed. The applicant is directed to be released on bail, on his furnishing a personal bond of Rs. 15,000/- with one surety of like amount, to the satisfaction of the learned Trial Court/Link Court, further subject to following conditions: i. The applicant shall not leave India without prior permission of the learned Trial Court. ii. The applicant shall intimate the learned Trial Court by way of an affidavit and to the Investigating Officer regarding any change in residential address. iii. The applicant shall appear before the learned Trial Court as and when the matter is taken up for hearing. iv. The applicant is directed to give his mobile number to the Investigating Officer and keep it operational at all times. v. The applicant shall not, directly or indirectly, tamper with evidence or try to influence the witness in any manner. 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 06/02/2025 at 14:37:53

13. The application is allowed and disposed of accordingly.

14. Pending application(s), if any, also stands disposed of.

15. Needless to state, nothing mentioned hereinabove is an opinion on the merits of the case and any observations made are only for the purpose of the present bail application.

16. Copy of the order be sent to the concerned Jail Superintendent for necessary information and compliance.

17. Order be uploaded on the website of this court, forthwith. FEBRUARY 4, 2025/bsr/pc AMIT SHARMA, J Click here to check corrigendum, if any 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 06/02/2025 at 14:37:53

Through: Mr. Ajay Vikram Singh, APP for the State. W/SI Neha, P.S. Mehrauli. Mr. Arun Sri Kumar & Ms. Saumya Sinha, Advs. for survivour. CORAM: HON'BLE MR. JUSTICE AMIT SHARMA O R D E R 04.02.2025 This is the second application seeking regular bail under Sections 439 read with 482 of the Cr.P.C. before this Court in case FIR no. 427/2018 under Sections 376/376D/506/34 of the IPC and Section 6 of the POCSO Act. The first application was rejected by the Co-ordinate Bench of this Court vide order dated 10.12.2021 in BAIL APPLN. 3082/2021.

2. The case of the prosecution as per the Status Report dated 26.10.2024 authored by Insp. Akhilesh Bajpai, SHO PS Mehrauli, New Delhi is as follows: “1. Most respectfully it is submitted that the abovementioned case was registered on the complaint of complainant Ms. 'M' D/o 'H' R/o XXX wherein she stated that when she was in class 5, she met one boy namely XXX (name redacted, since being tried by JJB) who asked her for friendship 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 06/02/2025 at 14:37:53 but she denied. Thereafter, he continuously asked her for being his friend and accompany him roaming around and started following her, therefore she became his friend. After 2-3 months, XXX took the victim in the jungle of lnderpuri after her school hours and committed rape upon her. Same time, four of his friends namely Rohit, Atul, Sachin and Anurag also came there and pressurized her for having sexual relationship with them too. When she denied, they said that they have recorded her video and showed her the same. On the pretext of making her video viral, XXX threatened her to establish sexual relations with his said four friends. Thereafter, all four of them committed rape upon her. Since then , all five of them had been doing wrong with her. All five of them used to contact her on her mother's phone and whenever she used to deny for having sex with them or talk with them, they used to threaten her for leaking her obscene video. She has further stated that when she met XXX 2-3 days back, informed him that she has not menstruated since March 2018 . She has further stated that today XXX met her outside the school and took her in the jungles of Mehrauli and raped her and told her not to reveal this to anyone and further told her to elope with him when he will come one or today days after. When she disagreed to his demand, he threatened to kill her and making her video viral and further that he will get her sisters kidnapped. She got frightened and narrated whole of the incident to her mother and lodged the complaint. From the contents of the complaint, the present case vide FIR No - 427 / 18 was got registered u/ s 376/376D/506/34 IPC & 6 POCSO ACT and investigation taken up by W /SI Nisha.

3. After the registration of aforesaid FIR, during the course of the investigation, the statement of the survivour was recorded under Section 164 of the Cr.P.C.. She was sent to AIIMS for complete medical examination and permission was sought for medical termination of pregnancy. The present applicant alongwith other co-accused persons were arrested and as per the case of the prosecution, the age of the survivour at the time of registration of FIR was 17 years. The chargesheet in the present matter has been filed including the supplementary chargesheet and the matter is at the stage of prosecution evidence.

4. Learned counsel appearing on behalf of the applicant at the very 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 06/02/2025 at 14:37:53 outset submits that all other co-accused persons in the present case, i.e., Rohit, Hashina Khatoon, Ravinder, Anurag Yadav and XXX (name redacted, since being tried by JJB) , have already been granted bail and the present applicant is the only one, who is in judicial custody in the present case. It was submitted that there is an application filed on behalf of the applicant regarding his claim of being a juvenile, as the date of birth of the present applicant was stated to be 03.01.2000 and the present FIR was registered on 10.07.2018. It was submitted that the allegation qua the present applicant had pertained to certain incidents which had occurred even prior to the registration of FIR, at which time he was a juvenile. It is further submitted that on the DNA examination being done, the samples of the present applicant had not matched with the sample from the foetus of the survivour and samples from neither of the other co-accused persons were also found matching. It is further submitted that no recovery of the alleged video has been made from the phone of the present applicant.

5. Furthermore, it is pointed out by the learned counsel for the applicant that the survivour in her statement under Section 161 of the Cr.P.C dated 26.07.2018 had stated that she was not in contact with the accused persons since 1.5-2 years through her mobile phone, therefore, implying that the age of the applicant was less than 18 years at the time of alleged incident. It is further submitted that the previous application for bail was dismissed by the Coordinate Bench of this Court by observing that the Court was not inclined to grant bail till the examination of the survivour and the Trial Court was requested to expedite the trial. It is pointed out that after passing of the said order, only the survivour, her mother, uncle and one doctor has been examined. It is submitted that out 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 06/02/2025 at 14:37:53 of 27 prosecution witnesses, only 4 have been examined till date. Furthermore, it is pointed out that the applicant has been in custody since

10.07.2018 bringing his custody period to more than 6 years. The applicant is currently aged 25 years and at the time when he was arrested, he was approximately 19 years of age.

6. Per contra, learned APP for State, assisted by learned counsel for the survivour, has submitted that the offence in the present FIR is heinous in nature. The survivour, who was a minor at the time of offence, was repeatedly sexually assaulted by the accused persons. It is further submitted that in the previous application seeking bail, the Co-ordinate Bench of this Court had observed that since notices were not issued to the survivour in bail applications of Ravindra and Anurag, the principle of parity will not apply. It is further submitted that so far as the DNA is concerned, it is the case of the prosecution that there is one more accused, who is still absconding. It is further submitted that the survivour has been examined before the learned Trial Court and she has categorically named the present applicant as one of the perpetrators of the crime committed upon her. It is further submitted that the evidence in the present case is sufficient and therefore the present application should not be allowed.

8. Heard learned counsel for the parties and perused the records. It is a matter of record that the co-accused Hashina Khatoon was granted bail by the learned Trial Court vide order dated 08.01.2019. The co- accused Ravinder was granted bail by a coordinate Bench of this Court vide order dated 07.12.2020 in BAIL APPLN. 3502/2020. The other-accused Anurag was also granted bail by a coordinate Bench of this Court vide order dated 19.02.2021 in BAIL APPLN. 62/2021. It is pertinent to note that none 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 06/02/2025 at 14:37:53 of these orders have been subject to any challenge. It is also matter of record that co-accused Sachin, was also granted bail by the learned Trial Court vide order dated 01.12.2021 as he was granted interim bail by the learned Trial Court on 18.07.2019 and keeping in view of his medical condition, he was thereafter granted permanent bail. The other co-accused xxxxx, has since been declared a juvenile and his trial has been separated and placed before the concerned JJB.

9. The coordinate Bench of this Court while dismissing the application for bail of the present applicant, had observed as under: “16. This Court is, therefore, not inclined to grant bail to the petitioners till the examination of prosecutrix. 17. Considering the fact that the petitioners are youngsters, the Trial Court is requested to expedite the trial and examine the prosecutrix within a period of six months from today. 18. The petitioners are at liberty to approach the competent Court after the prosecutrix is examined.”

10. While dismissing the bail, the coordinate Bench of this Court had examined the merits and after dealing with the same, dismissed the application by giving an opportunity to the applicant to apply afresh after examination of the survivour. It is also noted that after passing of the said order on

10.12.2021, till date only 4 witnesses out of 27 witnesses cited by the prosecution have been examined. This Court is conscious of the seriousness of the present case, however, the Court cannot ignore the fact that except for the present applicant, all other co-accused persons, against whom similar roles have been alleged are on bail. There is nothing which has been placed on record by the prosecution to show that on account of the aforesaid accused persons being released on bail, there was threat extended to the survivour or 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 06/02/2025 at 14:37:53 her family members.

11. The Nominal roll dated 04.09.2024 authored by Superintendent of Prison, Central Jail No. 8/9, Delhi reflects that as on 31.08.2024, the applicant had undergone a judicial incarceration of 6 years 1 month and 22 days, which comes to a custody period of 6 years 7 months approximately as of today and his jail conduct was satisfactory. The applicant is not involved in any other offence. In these circumstances and also the fact that only 4 prosecution witnesses out of 27 have been examined by the prosecution so far and that all other co-accused persons are already enlarged on bail, this Court is of the considered opinion that the applicant be released on bail.

12. In the peculiar facts and circumstances of the case, the present application is allowed. The applicant is directed to be released on bail, on his furnishing a personal bond of Rs. 15,000/- with one surety of like amount, to the satisfaction of the learned Trial Court/Link Court, further subject to following conditions: i. The applicant shall not leave India without prior permission of the learned Trial Court. ii. The applicant shall intimate the learned Trial Court by way of an affidavit and to the Investigating Officer regarding any change in residential address. iii. The applicant shall appear before the learned Trial Court as and when the matter is taken up for hearing. iv. The applicant is directed to give his mobile number to the Investigating Officer and keep it operational at all times. v. The applicant shall not, directly or indirectly, tamper with evidence or try to influence the witness in any manner. 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 06/02/2025 at 14:37:53

13. The application is allowed and disposed of accordingly.

14. Pending application(s), if any, also stands disposed of.

15. Needless to state, nothing mentioned hereinabove is an opinion on the merits of the case and any observations made are only for the purpose of the present bail application.

16. Copy of the order be sent to the concerned Jail Superintendent for necessary information and compliance.

17. Order be uploaded on the website of this court, forthwith. FEBRUARY 4, 2025/bsr/pc AMIT SHARMA, J Click here to check corrigendum, if any 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 06/02/2025 at 14:37:53