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Delhi High Court – Orders
Saleem vs State Of Nct Of Delhi on 22 February, 2024
Author: Jyoti Singh
Bench: Jyoti Singh
$~5
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ BAIL APPLN. 2927/2023
SALEEM ….. Petitioner
Through: Mr. Kartik Murukutla, Advocate
versus
STATE OF NCT OF DELHI ….. Respondent
Through: Ms. Shubhi Gupta, APP for State with
SI Satyapreet, PS: Jaitpur.
Ms. Sunita Arora, Advocate for Complainant.
CORAM:
HON’BLE MS. JUSTICE JYOTI SINGH
ORDER
% 22.02.2024
1. This is an application preferred on behalf of the Applicant Saleem S/o
Mr. Isak under Section 439 Cr.P.C. seeking regular bail, in case FIR No.
320/2022 dated 03.06.2022 under Section 376 IPC and Section 4 of the
Protection of Children from Sexual Offences Act, 2012 (POCSO Act)
registered at PS: Jaitpur, South East (Delhi). Charge Sheet has been filed in
which Sections 363/366A/34 IPC were added. Supplementary Charge Sheet
has also been filed wherein Sections 376D(A) and Section 6 of the POCSO
Act has been added.
2. It is argued on behalf of the Applicant that Applicant is in custody
since 24.08.2022 despite being innocent. There are no allegations of rape
against the Applicant and he was not named in the Charge Sheet. It was only
subsequently that Applicant’s name was added in the Supplementary Charge
Sheet. The role ascribed to the Applicant is at best of a Driver of the Alto
BAIL APPLN. 2927/2023 Page 1 of 6
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vehicle, allegedly involved in the incident and the prosecutrix has clearly
stated that there is no wrongdoing on part of the Applicant. Prosecution has
failed to establish the identity of the Applicant and the prosecutrix in her
statement under Section 164 Cr.P.C. has also not named him. No TIP was
conducted by the prosecution to establish the identity of the Applicant,
despite the Applicant suggesting that he was Saleem and not Rahul. Absence
of TIP is fatal to the case of the prosecution considering that the prosecutrix
deposed that the person driving the car was Rahul, while the Applicant is
Saleem. There are material contradictions in the testimony of the
prosecutrix. In her statement under Section 164 Cr.P.C., prosecutrix stated
that Sachin offered to be friends with her, which offer she accepted. When
she was going for her coaching, Sachin met her and asked her to sit in the
car for a drive and the prosecutrix sat in the car. However, during the
evidence before the Trial Court, prosecutrix stated that she was forcibly
taken in the car by Sachin. From the testimony of the prosecutrix, it also
emerges that Sachin and the prosecutrix had known each other and were
friends and the alleged act, if any, was consensual. This, according to the
Applicant, is fortified by the MLC, which shows that there was no external
or internal injury on the prosecutrix and she did not make any noise, which
she could have, as the car was not parked at any isolated place. Prosecutrix
deposed that the AC of the car was on since it was summer time. It was not
possible for the AC to be running and the car being locked from outside at
the same time, as for both the key was required. It was further urged that in
the absence of allegation of rape against the Applicant and the alleged act
between the prosecutrix and co-accused Sachin being consensual, there is no
reason why the Applicant should continue under incarceration. Applicant
BAIL APPLN. 2927/2023 Page 2 of 6
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has clean antecedents. Evidence of the prosecutrix is concluded and thus
there is no chance of threatening or intimidating her.
3. Learned APP appearing for the State, on the other hand, opposes the
bail application contending that TIP was not conducted during investigation,
but this fact by itself cannot be fatal to the case of the prosecution since
prosecutrix identified the Applicant during her evidence before the Trial
Court. A specific role has been assigned to the Applicant by the prosecutrix
stating that he along with co-accused Sachin took the prosecutrix in the car
and Applicant left the prosecutrix alone with Sachin after locking the car,
thereby aiding the co-accused in committing rape. During investigation,
accused Sachin was arrested and in his disclosure statement, he disclosed
that he had told the victim that his friend’s name was Rahul but on the day
of incident, Saleem was with him. On 24.08.2022, Applicant surrendered
and disclosed that he was with Sachin at the time of the incident. Applicant
has committed a heinous offence and there are chances that he may not join
the trial, if released on bail and/or may influence other witnesses.
4. I have heard the learned counsel for the Applicant and the learned
APP.
5. Indisputably, as per the prosecution case, there are no allegations of
rape against the Applicant. The role ascribed to the Applicant is at best of a
driver, who along with the Accused Sachin travelled in the car, while Sachin
and the prosecutrix were on the back seat and later stopped the car, locked it
from outside and went away, only to return after the alleged act had been
committed by Sachin. Counsel for the Applicant has attempted to point out
discrepancies in the version of the prosecutrix as initially she stated in the
statement under Section 164 Cr.P.C. that she and Sachin were friends and
BAIL APPLN. 2927/2023 Page 3 of 6
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she had accompanied him in the car for a drive, however, later during her
evidence before the Trial Court, she deposed that she was forcibly taken in
the car. Applicant has also sought to raise doubts on the correctness of the
allegations against the Applicant by pointing out that if he had locked the car
from outside, there was no possibility of the AC running inside. It is denied
that the Applicant has played any role in aiding the alleged offence and
according to the Applicant, prosecutrix and co-accused Sachin were friends
and had known each other prior to the day of the alleged incident. This
Court is conscious of the fact that it is not open at this stage while
considering an application for bail to appreciate or delve into evidence led
before the Trial Court and/or examine the credibility of a witness. However,
for the limited purpose of considering whether the accused warrants grant of
bail, it is open to the Court to come to a prima facie satisfaction in support
of commission of the alleged offence. In this context, it would be relevant to
allude to the judgment of the Supreme Court in Lt. Col. Prasad Shrikant
Purohit v. State of Maharashtra, (2018) 11 SCC 458, relevant paragraph
of which is as follows:-
“29. The law in regard to grant or refusal of bail is very well settled.
The court granting bail should exercise its discretion in a judicious manner
and not as a matter of course. Though at the stage of granting bail a
detailed examination of evidence and elaborate documentation of the merit
of the case need not be undertaken, there is a need to indicate in such orders
reasons for prima facie concluding why bail was being granted particularly
where the accused is charged of having committed a serious offence. Any
order devoid of such reasons would suffer from non-application of mind. It
is also necessary for the court granting bail to consider, among other
circumstances, the following factors also before granting bail; they are:
(a) The nature of accusation and the severity of punishment in case of
conviction and the nature of supporting evidence.
(b) Reasonable apprehension of tampering with the witness or
apprehension of threat to the complainant.
BAIL APPLN. 2927/2023 Page 4 of 6
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(c) Prima facie satisfaction of the court in support of the charge.”
6. There are no allegations of rape against the Applicant and he has set
up a defence of mistaken identity. As per the nominal roll, Applicant has no
criminal antecedents and his jail conduct is ‘satisfactory’. Applicant has not
misused the liberty granted to him while being released on interim bail.
Prosecutrix has been examined and thus there is no question of her being
threatened or intimidated. Applicant is in custody since 25.08.2022 and so
far only 5 out of 19 witnesses have been examined and thus, there is no
possibility of the trial concluding soon. Purpose of keeping a person under
incarceration is to ensure that he is available during trial and for receiving
the sentence awarded, if convicted.
7. Considering the aforementioned circumstances holistically, this Court
is of the view that Applicant is entitled to grant of regular bail during trial.
Accordingly, Applicant is directed to be released on bail subject to his
furnishing a personal bond in the sum of Rs.50,000/- with two sureties of the
like amount to the satisfaction of the Trial Court and further subject to the
following conditions:-
i. Applicant shall not leave the country without prior permission
of the Trial Court;
ii. He shall provide his mobile number to the IO concerned and
keep the same active at all times and shall not change the
number without prior intimation to the IO and the Trial Court;
iii. He shall furnish his permanent residential address to the
concerned IO and shall intimate the IO as well as the Trial
Court by filing an affidavit regarding any change in his
residential address;
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iv. He shall not indulge in any criminal activity or communicate
with or come in contact with the Complainant/victim as well as
the witnesses and/or any other person associated with the
present case;
v. He shall report to concerned IO once a month on every third
Monday at 2:00 PM; and
vi. He shall appear on every date of hearing before the Trial Court
unless exemption is sought and granted by the Court on any
given date.
8. It is made clear that nothing stated in this order shall tantamount to
expression of an opinion on merits of the case.
9. Application stands disposed of.
10. Copy of the order be sent to the concerned Jail Superintendent for
information and necessary compliance.
JYOTI SINGH, J
FEBRUARY 22, 2024/kks/shivam/KA
BAIL APPLN. 2927/2023 Page 6 of 6
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