SUBHASH Vs STATE
Bail Appln 158/2021 Page 1 of 4
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* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ BAIL APPLN. 158/2021
SUBHASH ….. Petitioner
Through Mr. Naveen Tripathi, Advocate
versus
STATE ….. Respondent
Through Ms. Meenakshi Chauhan, APP
CORAM:
HON’BLE MR. J USTICE SUBRAMONIUM PRASAD
O R D E R
% 18.01.202 1
1. This application filed under Section 439 Cr .P.C. is for g rant of regular
bail in FIR No. 460/2016 dated 16.05.2016 registered in Police Station Hauz
Khas under Section s 376, 342, 354D IPC and Section 4 of the Protection of
Children from Sexual Offence Act , 2012 (for short ‘POCSO Act’).
2. Heard Mr. Naveen Tripathi, learned counsel appearing for the
petitioner and Ms. Meenakshi Chauhan, learned APP appearing for the
State.
3. The petitioner is accused of having committed rape on a minor girl.
The complaint was filed on 16.05.2016. The petitioner was arrested on the
same date. The petitioner got bail on 18.05.2016 from Juvenile Justice
Board -II, Delhi. Since the petitioner was not a minor on the date of the
offence, the case was transferred to the regular court and t he petitioner was
2021:DHC:191Bail Appln 158/2021 Page 2 of 4
taken into custody on 03.09.2016 and s ince then he is stated to be in judicial
custody.
4. Mr. Naveen Tripathi , learned counsel appearing for the petitioner
states that the prosecutrix has been examined. He states that FSL report
does not corroborate the allegation of rape. He further states that the
prosecutrix in her complaint had stated that after the incident, she went to
use the bathroom which is not supported by the site plan , as there is no
bathroom adjoining the room where she was alleged to have been raped . He
states that the petitioner has been in incarceration for 4½ years and the trial
is not likely to end soon.
5. The bail application has been opposed by Ms. Meenakshi Chauhan,
learned APP appearing for the State. She states that the victim was 15 years
old when the rape was committed . She states that the uncle of the
prosecutrix is yet to be examined.
6. The petitioner had moved an application for bail before the learned
Additional Sessions Judge -05(POCSO)/SD/ Saket Court s, New Delhi . The
application has been dismissed by an order dated 11.08.2020 .
7. There is no change in circumstance from the date when the
application for bail has been rejected by the learned Additional Sessions
2021:DHC:191Bail Appln 158/2021 Page 3 of 4
Judge . The allegations against the petitioner are serious and grave in nature
for having committing a rape on a minor girl. This Court is not inclined to
enter into the contradictions in the statement of the prosecutrix and the
documents at this stage.
8. The Supreme Court in NIA v. Zahoor Ahmad Shah Watali , reported
as (2019) 5 SCC 1 , has restated the settled legal position about the factors to
be kept in mind for deciding an application of bail and has observed as
under :
“21. Before we proceed to analyse the rival
submissions, it is apposite to restate the settled legal
position about matters to be considered for deciding an
application for bail, to wit:
i. whether there is any prima facie or reasonable
ground to believe th at the accused had committed
the offence;
ii. nature and gravity of the charge;
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 a ccused;
vi. likelihood of the offence being repeated;
vii. reasonable apprehension of the witnesses being
tampered with; and
viii. danger, of course, of justice being thwarted by
grant of bail. ( State of U.P. v. Amarmani
Tripathi [State of U.P. v. Amarmani Tripathi ,
2021:DHC:191Bail Appln 158/2021 Page 4 of 4
(2005) 8 SCC 21, para 18 : 2005 SCC (Cri) 1960
(2)] .)”
9. Keeping in mind the fact that the offence s alleged against the
petitioner are serious and grave in nature inasmuch as the allegation is that
he has committed rape of a minor girl ; the uncle of the complainant is yet to
be examined ; the petitioner stays in the same building and possibility of
tampering with the evidence cannot be ruled out , this Court is not inclined to
admit the petitioner on bail at this stage. The bail application is accordingly
dismissed.
10. However, since the petitioner has undergone incarceration for 4½
years and only the uncle of the prosecutrix and some official witnesses are
left to be examined, the Trial Court is requested to expedite the examination
of the witnesses. It is expected that the prosecution will complete the
examination of the uncle of the prosecutrix within a period of 45 days from
today.
11. Liberty is granted to the petitioner to file another bail application after
a period of 45 days.
SUBRAMONIUM PRASA D, J.
JANUARY 18, 202 1/pst
2021:DHC:191