Child rape cases are cases of perverse lust for sex where even innocent children are not spared in pursuit of sexual pleasure. The seriousness of the offence of rape and its impact on the victim will be considered before granting a bail application. This auspicious judgment was passed by the High Court of Delhi in the matter of KASHISH BATRA V. THE STATE [BAIL APPLICATION NO. 477 OF 2021] by Honourable Chief Justice Subramonium Prasad.
The petitioner had filed an instant petition under Section 439 of Criminal Procedure Code for seeking regular bail in FIR No.442 of 2020 under Sections 370, 370(A), 372, 374, 376, and 342 of Indian Penal Code and Section 6 of the Protection of Children from Sexual Offences Act 2012.
The prosecutrix was studying in 8th standard then and was on numerous occasions caught by her family talking and chatting to a boy named Nadeem. After her brother slapped her for the same on 11.07.2020 she angrily left her house and got into a battery rickshaw without any phone or money.
There she met Imrana who told her that she works for an NGO and took her to KNF Hotel, Gurgaon where Imrana and the petitioner drugged her and after she was semiconscious, the petitioner raped her. Later, Imrana sent her with Rashid who raped her. Then the prosecutrix ran away to Greater Noida where Mukesh gave her his phone and she spoke to Nadeem, who asked her to come to Meerut and later refused to keep her. Then Mukesh brought the prosecutrix back to Greater Noida where she spent 14 days with Mukesh and then her family was informed and later an FIR was filed under Sections 370, 370(A), 372, 374, 376, and 342 IPC and Section 6 of the POCSO Act was registered. The victim was given counseling by the Child Welfare Committee and in the report, new facts of sexual assault and Human Trafficking came to light.
The petitioner’s bail application was dismissed by Additional Session Judge hence he approached the HC under Section 439 CrPC for a grant of regular bail. Since he contended that neither the petitioner could tamper with any evidence nor is he being called for any kind of investigation and hence continued custody will become punitive in nature which is contrary to the established law. The petitioner relied on Fakhrey Alam v. The State of Uttar Pradesh to contend that there can be only one charge-sheet and subsequent charge-sheets cannot enlarge the time and therefore the accused is entitled to default bail under Section 167 CrPC. However, the court refused this claim, “In the present case the charge-sheet was filed on 21.01.2021. The investigation was completed and the ingredients of Section 167(1)(a), 167(2) read with Section 173(1)(a) CrPC has been met with and therefore the petitioner is not entitled to default bail.”
The Court observed that the “The seriousness of the offence of rape and its impact on the victim has as stated by the Supreme Court in Lillu v. State of Haryana (2013) 14 SCC 643 will be considered and the delay in filing the FIR cannot be said to be fatal to this case at this juncture while considering the application for bail.”
The Court stated that “The prosecutrix is only 16 years of age. She was given counseling. The report given by the Child Welfare Committee reveals that the accused were trying to put the prosecutrix into flesh trade and that she managed to escape. The call detail records of the accused Imrana and the petitioner corroborate the locations. As correctly observed by the Additional Session Judge, there is no reason forthcoming as to why the prosecutrix would falsely implicate the petitioner. There are sufficient materials in the charge sheet against the petitioner. The petitioner is accused of committing a heinous offense of rape on a child. The possibility of the petitioner putting pressure on the prosecutrix at this stage, if released on bail, cannot be ruled out.”
Then, the Court in light of this decision refused to grant bail to the petitioner and dismissed this petition, and directed the Trial Court to hear the case as expeditiously as possible and preferably within one year.
