In a significant, superb, stimulating and suave judgment with far-reaching consequences rendered on September 22, 2020, the Delhi High Court in Dharmander Singh @ Saheb vs The State (Govt of NCT, Delhi) in Bail Appl. 1559/2020 has discussed in detail the legislative intent and applicability of 'reverse burden' under Section 29 of the Protection of Children from Sexual Offences Act, 2012 (POCSO). Delhi High Court in this latest, learned landmark and extremely laudable judgment discusses in detail the significant factors to be considered while hearing an application for bail in POCSO cases. This is exactly what makes this judgment so special.

To start with, this notable judgment authored by Justice Anup Jairam Bhambhani sets the ball rolling by first and foremost expressing in the introductory para 1 that:
The applicant, who is stated to be about 24 years of age, is an accused in case FIR No. 471/2018 dated 14.10.2018 registered under sections 323/343/363/366A/376/506 IPC read with sections 6/21 of the Protection of Children from Sexual Offences Act 2012 ('POCSO Act', for short) at PS Hari Nagar, and has been in judicial custody since 17.11.2018. Para 2 then states that, By way of the present application under section 439 of the Code of Criminal Procedure, 1973 ('CrPC', for short), the applicant seeks regular bail.

While dwelling on the facts of the case, para 3 then envisages that:
Briefly the factual backdrop that has led to filing of the subject FIR is that the applicant and the complainant/prosecutrix become friends through Facebook about 02 years back in 2016, which friendship, it is allegedly culminated in physical intimacy between the two.

While dwelling on the contents of the FIR, it is then disclosed in para 4 that:
The FIR recites that the applicant made physical relations with the complainant at his residence and also made a video of the act; whereafter, the allegation goes, the applicant started calling the complainant to his house time-and-again to engage in physical relations. It is further alleged that on 25.04.2018, when the complainant was visiting her village, the applicant called her back threatening that if she did not return, he would share the video made on social media and upload it on the internet. The complainant says that thereupon she boarded the train back from her village on 09.05.2018 and returned to the applicant on 10.05.2018. She further says that the applicant forced the complainant to live with him in a certain house; and when the complainant called her family members to come and meet her, the applicant started pressurising the complainant for marriage.

While continuing in a similar vein, para 5 states:
It is further alleged that on 15.05.2018, the applicant married the complainant in his own house in the presence of his mother; and thereafter, forcibly kept the complainant there for about a month-and-a-half. Thereafter, the complainant alleges that she called her parents to the applicant's house and returned with them to her maternal home on 25.06.2018. It is further the complainant's case that again on 27.06.2018, the applicant threatened the complainant to return to him, whereupon she came back and stayed with him for about 05 days until 03.07.2018, when her mother and aunt came to the applicant's place and the applicant sent her off.

To supplement to what is stated above, it is then revealed in para 6 that:
The FIR records other allegations as well, the essence of which is that the applicant threatened the complainant to return to him from time-to-time; and that, when she refused, he upload the complainant's photograph as his display-picture on Whatsapp and threatened to embarrass her.

More damningly, para 7 then further reveals that:
There is also an allegation in the FIR that on 13.10.2018 the applicant took the complainant on his 'scooty', and thereafter diverted towards a flyover stopped the 'scooty' and asked the complainant to disrobe, at which point he also hit her.

As a corollary, para 8 then states that:
On these allegations, the FIR was registered on 14.10.2018; whereupon the applicant was arrested on 17.11.2018. Para 9 says Notice in this application was issued on 06.07.2020. Para 10 says Status report dated 21.07.2020 has been filed by the State. Para 11 says Nominal roll dated 21.07.2020 has also been received from the Jail Superintendent.

To state the palpable, para 12 then reads:
Since the matter concerned an allegation under section 376 IPC read with sections 6/21 of the POCSO Act, intimation under section 439 (1A) Cr.P.C. and Delhi High Court Practice Directions dated 24.09.2019 was sent to the complainant; in response to which the complainant appeared along with Investigating Officer/W/S.I. Anil Sharma and, was heard on the bail application.

It is relevant to note that it is then stated in para 13 that:
In her statement dated 16.10.2018 recorded under section 164 Cr.P.C., the complainant has, in substance, supported the allegations made in the FIR while giving some additional details. What is noteworthy however is that in her supplementary statement dated 14.10.2018 recorded under section 161 Cr.P.C., the complainant says that at the time she was getting married to the applicant at his house, both the complainant and the applicant's mother that her age was 19 years, so that the mother would not disallow them to get married; and she further states that the applicant's mother believed them since she is old and uneducated.

It would be pertinent to mention that para 14 then states In MLC dated 14.10.2018 however, the complainant's age is recorded as 17 years.

What then ensues is stated in para 15 that:
Subsequently, charge-sheet dated 15.12.2018 was filed in the matter and charges were framed on 06.04.2019. Although initially a co-accused, the applicant's mother was discharged in the matter at that stage.

Without mincing any words, it is then asserted in para 29 that, While the precept 'bail is the rule and jail is the exception' was originally crafted as a mantra, this court notes with consternation that this phrase has, more often than not, been reduced to mere empty platitude, which is repeated often but almost never applied.

Most significantly and most crucially, while listing the factors that can change the dice in accused's favour, it is then enjoined upon in para 77 that, Though the heinousness of the offence alleged will beget the length of sentence after trial, in order to give due weightage to the intent and purpose of the Legislature in engrafting Section 29 in this special statute to protect children from sexual offences, while deciding a bail plea at the post-charge stage, in addition to the nature and quality of the evidence before it, the court would also factor in certain real life considerations, illustrated below, which would tilt the balance against or in favour of the accused:

1. the age of the minor victim : the younger the victim, the more heinous the offence alleged;
    
2. the age of the accused : the older the accused, the more heinous the offence alleged;
    
3. the comparative age of the victim and the accused : the more their age difference, the more the element of perversion in the offence alleged;
    
4. the familial relationship, if any, between the victim and the accused : the closer such relationship, the more odious the offence alleged;
    
5. whether the offence alleged involved threat, intimidation, violence and/or brutality;
    
6. the conduct of the accused after the offence, as alleged;
    
7. whether the offence was repeated against the victim; or whether the accused is a repeat offender under the POCSO Act or otherwise;
    
8. whether the victim and the accused are so placed that the accused would have easy access to the victim, if enlarged on bail : the more the access, greater the reservation in granting bail;
    
9. the comparative social standing of the victim and the accused : this would give insight into whether the accused is in a dominating position to subvert the trial;
    
10. whether the offence alleged was perpetrated when the victim and the accused were at an age of innocence : an innocent, though unholy, physical alliance may be looked at with less severity;
     
11. whether it appears there was tacit approval-in-fact, though not consent-in-law, for the offence alleged;
     
12. whether the offence alleged was committed alone or along with other persons, acting in a group or otherwise;
     
13. other similar real-life considerations.

The above factors are some cardinal considerations, though far from exhaustive, that would guide the court in assessing the egregiousness of the offence alleged; and in deciding which way the balance would tilt. At the end of the day however, considering the myriad facts and nuances of real-life situations, it is impossible to cast in stone all considerations for grant or refusal of bail in light of section 29.

The grant or denial of bail will remain, as always, in the subjective satisfaction of a court; except that in view of section 29, when a bail plea is being considered after charges have been framed, the above additional factors should be considered.

Needless to say, para 78 then propagates that:
It goes without saying that while considering a bail plea at any stage, whether before or after framing of charges, the court would of course apply all the other well settled principles and parameters for grant or denial of bail.

Of course, it is then rightly clarified in para 79 that:
It is important to state here that the aforesaid considerations are only to be applied while deciding a bail plea and may not have a bearing on the merits of the case.

As we see, it is then also clarified in para 80 that:
Since in the matter under consideration, charges have already been framed, section 29 of the POCSO Act will apply. Accordingly it is necessary to evaluate how the illustrative considerations indicated above apply in this case.

What is of extreme significance is that it is then divulged in para 81 that, In the facts of the present case, what weighs with the court is that:

1. for one, the age difference between the complainant and the applicant is about 4-5 years. But more importantly, both were at an age when a reciprocal physical relationship between two not so young, though not fully mature,
    
2. next, there appears to be very little to support any allegation of serious violence or injury, that would betray brutality in the offence alleged;
    
3. next, the complainant appears to have returned to the applicant time-and-again and to have lived with the applicant for periods of time at his house along with his mother, which again betrays approval-in-fact, if not consent-in-law, on her part for the acts alleged;
    
4. next, charges have already been framed and complainant's deposition is well underway. But due to the restricted functioning of courts by reason of the prevailing coronavirus pandemic, it is unlikely that trial will be completed anytime soon;
    
5. next, there is no allegation that the offence alleged was committed along with any other persons acting in a group or otherwise;
    
6. next, the complainant, though minor, was not of an age that she did not understand the act involved. In fact she speaks of a marriage of sorts having been conducted between the two in the presence of the applicant's mother;
    
7. next, the applicant is not a repeat offender nor does he have any prior or other criminal involvement; and
    
8. lastly, there is no allegation of any threat having been extended by or on the applicant's behalf between the registration of the FIR on 14.10.2018 and the date of his arrest on 17.11.2018.

No less significant is what is then stated in para 82 that:
Upon a conspectus of the foregoing facts and circumstances, applying the above principles and the opinion of this court as to the applicability of section 29 of the POCSO Act, this court is persuaded to admit the applicant to regular bail, on the following conditions:

1. The applicant shall furnish a personal bond in the sum of Rs. 30,000/- (Rupees Thirty Thousand) with 01 surety in the like amount from the applicant's mother, to the satisfaction of the trial court;
    
2. The applicant shall furnish to the Investigating Officer/S.H.O. a cell phone number on which the applicant may be contacted at any time and shall ensure that the number is kept active and switched-on at all times;
    
3. If the applicant has a passport, he shall also surrender the same to the trial court;
    
4. The applicant shall not contact, nor visit, nor offer any inducement, threat or promise to the first informant/complainant or to any of the prosecution witnesses. The applicant shall not tamper with evidence nor otherwise indulge in any act or omission that is unlawful or that would prejudice the proceedings in the pending trial.

As a rider, it is then added in para 83 that:
Nothing in this judgment shall be construed as an expression on the merits of the evidence in the pending trial.

No doubt, this extremely landmark and significant judgment bears immense significance in that it lays down the significant factors to be considered while hearing an application for bail in POCSO cases which have already been described above exhaustively! It also noted that while ordinarily there is a presumption of innocence vis-à-vis an accused, Section 29 of the POCSO Act reverses this position. The Court also elaborately explained the factors that weighed with the Court in arriving at a logical and trustworthy judgment!

It elegantly and effectively points out in para 73 that:
Another significant legal principle which we must not omit to consider, is that if a penal provision, whether substantive or procedural, is susceptible to two interpretations, it must be construed strictly, narrowly and in a manner that is favourable to the accused (cf. Bijaya Kumar Agarwala vs. State of Orissa (1996) 5 SCC 1 : paras 17,18). Rightly so!

Sanjeev Sirohi, Advocate,
s/o Col BPS Sirohi, A 82, Defence Enclave,
Sardhana Road, Kankerkhera, Meerut – 250001, Uttar Pradesh