Recently in the case of Shiv Chander vs. NCT of Delhi [First Appeal No. 259 of 2020], the Delhi High Court granted bail to a man who was booked under Sections 376AB of Indian Penal Code (“IPC”) and Section 6 of the POCSO Act allegedly for insisting the victim to perform oral sex while the zip of his pant was open.

In this case, the complainant had seen the petitioner, who lived in the same building, in an intoxicated state taking the victim of 2 ½ years on the side of the main gate while the zip of the pants of the petitioner was already open. He had allegedly heard the petitioner insisting the victim to perform oral sex. The complainant submitted that on seeing this incident, lot of neighbours had gathered there and had beaten the petitioner. Thereafter, the petitioner was handed over to the police and was arrested in an First Information Report (FIR).

However, the petitioner contended that there were major contradictions in the material placed on record by the prosecution as the FIR and charge-sheet – both were self-contradictory in nature. Also, Medicolegal Certificate of the petitioner had not shown any sign of intoxication and abrasion. Thereafter the accused filed a bail application to the Court.

The Court on January 22, 2021 noted that in the CCTV footage, the complainant had entered into the building and within a minute, he was seen catching hold of the petitioner and bringing him out. The Judge questioned the complainant that if such type of heinous crime had taken place and that too with a 2 ½ years old girl, then why was the FIR not registered immediately. The Court observed that MLC had not shown any sign of bruises or abrasion which indicates that there was no public beating which was alleged in the FIR.

In view of the aforesaid facts and the fact that the prosecutrix being just 2 ½ years old, due to which her statement was not recorded, the Court decided to release the accused on bail on his furnishing a personal bond in the sum of Rs.15,000/- with one surety in the like amount to the satisfaction of the Trial Court.

It must be noted that it seems that the Court ignored some judgments of Supreme Court (SC) like Palani vs. State of Tamil Nadu (27^th Nov 2018) which held that even a long delay in registration of FIR can be condoned if the witness has no motive for falsely implicating the accused. SC has opined that if the delay is satisfactorily explained, the Court will decide the matter on merits without giving much importance to such delay.

– Adv. Shivangi Prasad – Corporate Lawyer, External Member & Trainer, Head – Legal & Compliance, Partner Child Safety at Work & Vaishali Jain, Paralegal – Child Safety at Work