X Vs. STATE (NCT OF DELHI)

JUDGEMENT

(1.) By this petition, the petitioner seeks setting aside of the order dtd. 7/9/2021 and the consequential cancellation of regular bail granted to the respondent No. 2 by the learned ASJ, Fast Track Court, POCSO-1, Dwarka Court in FIR No. 457/2021.

(2.) The petition has been filed through the father/ legal guardian of the victim who is a female aged 37 years, suffering from bipolar mental disorder episodic mania and psychotic features since the year 2002 and was diagnosed to be suffering from the mental disorder in 2015 with mania shortly after her marriage. The same has also resulted in initiation of divorce proceedings between the victim and her husband.

(3.) Learned counsel for the petitioner assailing the impugned order states that despite the fact that the learned Additional Sessions Judge called for the report of IHBAS on 18/8/2021; 21/8/2021; 1/9/2021; and 6/9/2021, however without waiting for the final report which was received on 15/9/2021 passed the impugned order on 7/9/2021 granting regular bail to the respondent No. 2 who was arrested on 30/7/2021. It is further stated that while granting bail, though the learned Trial Court took notice of the initial statement of the victim recorded before the Police, however failed to notice her detailed statement recorded under Sec. 164 Cr.P.C. before the learned Metropolitan Magistrate. The mobile phone of the accused showed the mobile number saved with the title '376' and the accused transferred photos of the victim to the said number for which the mobile phone has already been sent to FSL and the report of FSL is still awaited. Statement of the prosecutrix recorded under Sec. 164 Cr.P.C. and the call detail record show that the prosecutrix came in touch with the respondent No. 2 three days prior to 21/7/2021, and on 21/7/2021 he lured the prosecutrix on the pretext that there was an evil spirit of a dog in her body which needs to be removed. After taking the prosecutrix to Nainital instead of Vaishno Devi by putting vermilion in her head, the prosecutrix was made to believe that they were married and committed sexual intercourse with her. Statement of the prosecutrix recorded by the learned Metropolitan Magistrate clearly shows that she was threatened. The respondent No. 2 is living in the neighbourhood of the prosecutrix and thus as a neighbourer he knew the medical condition of the prosecutrix. Taking undue advantage of her medical condition, he lured her and took her away to Nainital, where he committed the offence of rape on her punishable under Sec. 376(2)(l) wherein the sentence awarded is not less than 10 years imprisonment which may extend to life imprisonment and fine. Thus, while granting bail to the respondent No. 2 the learned Trial Court failed to consider the legal principles applicable for grant of bail i.e. seriousness of offence, likelihood of the witness being intimidated, tampering with the evidence and the conduct of the accused. It is further stated that the respondent No. 2 does not have clean antecedents and that prior to the registration of above-noted FIR, two kalandras were registered against him and after registration of the above-noted FIR, the respondent No. 2 is involved in FIR No. 734/2021 under Ss. 323/341/354/506 IPC registered at PS Vikas Puri on 24/11/2021.