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CRL.M.BAIL. 816/2022 in CRL.A. 32/2021

NANHE vs STATE (GNCT OF DELHI)

The current application had been filed for regular suspension of sentence till the final disposal of the appeal which has assailed the judgment of conviction dated 24th July 2019, and order on sentence dated 26th July 2019 in proceedings related to FIR No.142 of 2013 P.S. Welcome under Sections 363, 366, 376, IPC and Section 6 of POCSO. Application before the HON’BLE MR. JUSTICE ANISH DAYAL.

FACTS OF THE CASE

As per the order on sentence the learned Trial Court awarded rigorous imprisonment for a period of 10 years for offense punishable under Section 6 POCSO and a fine of Rs. 10,000 with (simple imprisonment for 3 months in default of payment of fine).

The appellant has undergone custody for a period of about 5 years, 3 months and as per the Nominal Roll, there are no previous involvements and the jail conduct has been satisfactory. The appellant has not sought any interim bail nor any parole throughout the period of incarceration.

Learned counsel for the appellant contended that as per the case of the prosecution, on 18th June 2012, the parents of the prosecutrix had gone to the hospital for treatment and when they returned they found their daughter missing. After 10 months of the missing complaint being filed, an FIR was registered under Section 363(Punishment for kidnapping.) IPC.

On 10th July 2013, the victim was found at the appellant’s house and statement was recorded under Section 164 Cr.P.C. The victim clearly stated that they were in a romantic relationship and on 18th June 2012, she had gone to Kashipur, along with the appellant and performed the nikah ceremony and now she had a child of about four months. She had stated that she went with her consent and wanted to live with the appellant.

Considering the above development Section 366/376 IPC and Section 6 POCSO were added to the FIR.

Learned counsel for the appellant submitted that the victim was 14 years old at the time she eloped with the appellant she was now married and had a child and as per Muslim Law, a Muslim girl can get married after attaining the age of puberty.

The Council stated that the victim was found missing on 18th June 2012, but had later approached the Hon’ble High Court of Allahabad for seeking protection from the parents, which petition was disposed of on 10th May 2013.

The Council further contended that the parents had approached the police after 10 months. Thus, showing that the parents of the victim knew the whereabouts of the victim and then made a complaint in order to pressurize her and the appellant. It was further contended that the victim had gone out of her free will on 18th June 2012 while the POCSO Act itself came into force on 14th November 2012 and therefore claimed it not to be applicable.

Learned APP countering the contentions of the appellant stated that even though the FIR was registered on 17th April 2013, the act which formed the basis of the offence was continuing. The victim was also hurt by the said act and stated that even though the appellant has not assaulted her, she does not wish that he would be released on bail.

JUDGEMENT

The Court considering the facts and circumstances was of the view that the appellant was entitled for regular suspension of sentence.

The Court noticed that the appellant had undergone substantial period of sentence and the appeal is likely to take some time for hearing, therefore directed that the sentence of the appellant be suspended pending the hearing of the appeal by furnishing a personal bond in the sum of ₹25,000/- with one surety bond of the like amount, subject to the satisfaction of the learned Trial Court/ CMM/ Duty Magistrate, further subject to the conditions as stated below:

• Appellant could not leave the country without prior permission of the Court.
• Appellant should provide permanent address to the Ld. Trial Court. The appellant is required to intimate the Court by way of an affidavit and to the IO regarding any change in residential address.
• Appellant needs to appear before the Court as and when the matter is taken up for hearing.
• Appellant is required to provide all mobile numbers to the IO concerned which shall be kept in working condition at all times and shall not switch off or change the mobile number without prior intimation to the IO concerned. The mobile location is to be kept on at all times.
• Appellant should not indulge in any criminal activity and should not communicate with or come in contact with the complainant/victim or any member of the complainant/victim’s family or tamper with the evidence of the case.

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JUDGEMENT REVIEWED BY ADITYA G S.

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