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Bhushan Malik vs State (Government Of Nct Of Delhi) on 14 August, 2018

$~12
* IN THE HIGH COURT OF DELHI AT NEW DELHI

% Judgment delivered on: 14.08.2018

+ BAIL APPLN. 1545/2018

BHUSHAN MALIK ….. Petitioner
versus

STATE (GOVERNMENT OF NCT OF DELHI) ….. Respondent

Advocates who appeared in this case:

For the Petitioner : Mr. V.Madhukar Mr.Susheel Kumar, Advocates.

For the Respondent : Mr. Raghuvinder Varma, APP for State.
Mr. R.S.Jakhar Mr. Neeraj, Advocates for
Complainant

CORAM:-
HON’BLE MR JUSTICE SANJEEV SACHDEVA
JUDGMENT

14.08.2018
SANJEEV SACHDEVA, J. (ORAL)

1. Petitioner seeks regular bail in case FIR No. 46/2018 under
Sections 376/506/328/354 IPC registered at P.S. Vasant Kunj.
Subsequently, Sections 8, 12 14 of the POCSO Act have been
added after a supplementary statement of the prosecutrix.

2. The allegations in the FIR are that the prosecutrix met the

BAIL APPLN. 1545/2018 Page 1 of 6
petitioner at the marriage of one of the relations and was known to the
petitioner since the year 2014. It is alleged that on 19.11.2016, the
petitioner without her consent forcefully made physical relations with
her. This is alleged to have been repeated in December, 2016 and
further after extending threat he continued to make physical relations
with her. Last time, it is contended that the physical relation was made
on 20.11.2017.

3. Complaint was made to the police on 22.01.2018 and FIR was
registered. In her statement recorded under Section 164 Cr.P.C on
23.01.2018, she has reiterated the allegations made in the FIR.

4. The petitioner applied for grant of the anticipatory bail on
27.01.2018 and in the application for bail, to show that the parties
were known to each other for several years and there relations was
cordial, petitioner relied upon conversations between them through
electronic means inter alia Facebook Messenger. Learned counsel
further submits that he filed the transcript of the conversations
between the parties alongwith the application for grant of bail.
Petitioner was granted interim protection by order dated 30.01.2018.

5. Subsequently a supplementary statement of the prosecutrix
under Section 161 Cr.P.C. was recorded on 20.02.2018, wherein, it
was alleged that the petitioner, in the year 2014 had given her
Chocolate laced with some intoxicated material and on eating the
same, she became unconscious. When she regained consciousness,

BAIL APPLN. 1545/2018 Page 2 of 6
she was shown some obscene photographs of her. Learned counsel for
the petitioner points out that even in the alleged incident of 2014, no
physical relationship is stated to have been made by the petitioner.

6. Consequent to the supplementary statement under section 161
recorded on 20.02.2018, the application for anticipatory bail was
rejected and the interim protection granted was vacated.

7. Learned counsel for the petitioner submits that there are
substantial improvements in version given by the prosecutrix in the
supplementary statement given by her on 20.02.2018 over the version
given by her in the statement on which the subject FIR has been
registered and the statement given before the Magistrate under Section
164 Cr.P.C. as also her version recorded in the medico-legal
examination of the sexual violence. He further submits that when the
petitioner sought to rely on the Facebook conversations between the
parties to show that they were known to each other and their relation
was cordial, improvements have been made in the statement recorded
under Section 161 Cr.P.C to introduce the offences punishable under
POCSO Act. It is submitted that the same led to the rejection of the
anticipatory bail application.

8. The petitioner has been in custody since 6th April, 2018.

9. Learned counsel for the petitioner submits that there is no
material to substantiate any of the allegations made either in the FIR

BAIL APPLN. 1545/2018 Page 3 of 6
or in the statements recorded under Sections 164 and 161 Cr.P.C.

10. Further, it is contended that there is substantial unexplained
delay in reporting the alleged incidents to the police as the allegation
is that the incident pertains to 19th November, 2016 and lastly on 20th
November, 2017 and the first complaint is made on 22 nd January,
2018, after a delay of three months.

11. Learned counsel for the petitioner further submits that there is
no other evidence to corroborate the commission of the offence apart
from the statement of the prosecutrix in which also there are
substantial improvements subsequently.

12. Learned counsel appearing for the prosecutrix submits that the
prosecutrix was under threat and as such, she could not make a
complaint to the police. Further, he submits that thereafter, one
incident of petitioner and his family extending threats to the
prosecutrix, has been reported, on which an FIR has been registered.

13. Learned counsel for the petitioner, on this, submits that the
petitioner and his family members were called by the family of the
prosecutrix for the purpose of discussions so that the matter could be
amicably resolved. He further submits that the sister of the petitioner
is married in the family of the prosecutrix.

14. Learned counsel for the petitioner submits that the mother of
the prosecutrix is serving as a Head Constable in Haryana Police and

BAIL APPLN. 1545/2018 Page 4 of 6
is well versed with the legal procedures and all the statements given
by the prosecutrix to the police as also under Sections 164 and 161
Cr.P.C. have been recorded when her mother herself was present with
the prosecutrix. It is contended by learned counsel for the petitioner
that complaints about threats have been made only to create a false
defence to the application of bail filed by the petitioner.

15. Learned counsel for the petitioner further contends that the
petitioner is in custody since 06.04.2018. The petitioner is 23 years of
age.

16. Learned APP for the State under instructions submits that the
Mobile Phones of the complainant/prosecutrix as well as of the
petitioner have been seized and have been sent for forensic
examination. He further submits that the investigation on the
complaints made by the prosecutrix with regard to threat extended by
the petitioner is on.

17. Without commenting on the merits of the case and keeping in
view the totality of the facts and circumstances of the case, I am of the
view that the petitioner has made out a case for grant of bail.

18. Accordingly, petitioner is directed to be released on bail on his
furnishing a personal bond of Rs. 25,000/- with two sureties of the
like amount to the satisfaction of the trial court, if not required in any
other case. The petitioner shall not do anything that may prejudice

BAIL APPLN. 1545/2018 Page 5 of 6
either the investigation or the prosecution witnesses. The petitioner
shall not leave the country without permission of the trial court. It is
directed that the petitioner shall not contact the prosecutrix or her
family members.

19. The SHO of the concerned Police Station of the residence of the
prosecutrix is directed to ensure the safety of the prosecutrix.

20. The petition is disposed of in the above terms.

21. Order Dasti under signatures of the Court Master.

SANJEEV SACHDEVA, J
AUGUST 14, 2018
j

BAIL APPLN. 1545/2018 Page 6 of 6

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