Survivor Turns Wife Takes Surety Of Accused, Delhi High Court Grants Bail

Delhi High Court recently granted bail to a 20-year-old man after the survivor, his wife, offered to stand as surety for him in a case registered under Sections 363, 366, and 376 of the Indian Penal Code (IPC) and Section 6 of the POCSO Act [Bijender Mehto vs GNCT of Delhi]. The survivor’s mother filed the case after she went ‘missing’ in 2020.

According to Justice Anup Jairam Bhambhani, he observed that, prima facie, the relationship between the accused and the survivor appeared to be consensual.

The Court stated that, “X’ admits that she had a child with the petitioner, that she carried that pregnancy to term, and that she gave birth to that child willingly. At least prima facie, the foregoing factual scenario allows for only one inference, namely that the two had a consensual physical relationship.”

The petitioner and the survivor had known each other since they were in school together, they even had a child together, and they lived together with the petitioner’s parents.

The petitioner’s advocates Vikas Kumar and Rajneesh Bhashar argued that the case was one of a “juvenile romance,” in which both parties engaged in a completely consensual physical relationship free of deception, coercion, or pressure.

They also stated that the survivor, now a major, regards the petitioner to be her husband and wishes to live with him, as demonstrated by her current residence with the petitioner’s parents. The counsel contended that the petitioner had been detained for twenty months and deserved to be released on bail.

Assistant Public Prosecutor Shoaib Haider, on the other hand, opposed bail because serious offences under Section 376(2) of the IPC and Section 6 of the POCSO Act were alleged. The State counsel argued that extending the petitioner’s bail would jeopardize the prosecution.

The Court, in turn interacted with the survivor at length and found that she wholeheartedly endorsed the version of events recorded during the investigation and trial, i.e. that she had gone with the petitioner of her own volition.

However, because the chargesheet had been filed and charges had been framed, the Court noted that Section 29 of the POCSO Act would be triggered, raising the threshold of satisfaction required for bail to be granted.

The Court referred its own decision in Dharmander Singh @ Saheb vs. The State, in which it established criteria for hearing such cases at the post-charge stage.

In the aforementioned case, the Court stated that, in addition to the nature and quality of evidence, the Court could consider the following factors into account to tilt balance against or in favour of the accused:

• The minor victim’s age: the younger the victim, the more heinous the alleged offence;
• The accused’s age: the older the accused, the more heinous the alleged offence;
• The age difference between the victim and the accused: the greater the age gap, the greater the element of perversion in the alleged offence;
• Any familial relationship between the victim and the accused: the closer the relationship, the more odious the alleged offence;
• Whether the alleged offence involved a threat, intimidation, violence, or brutality;
• The accused’s conduct following the alleged offence;
• Whether the offence was committed against the victim again, or whether the accused is a repeat offender under the POCSO Act or otherwise;
• Whether the victim and the accused are located in such a way that the accused would have easy access to the victim if released on bail: the greater the access, the greater the reservation in granting bail;
• The victim’s and accused’s comparative social standing: this would indicate whether the accused is in a dominant position to subvert the trial;
• Whether the alleged crime was committed when both the victim and the accused were children: an innocent, though unholy, physical alliance may be looked at with less severity;
• Whether there appears to be tacit approval-in-fact, but not consent-in-law, for the alleged offence;
• Whether the alleged offence was committed alone or in collaboration with others, acting in a group or otherwise;
• Other similar real- life considerations.

After considering these factors, the Court determined that the circumstances in this case favoured granting bail to the petitioner.

The court added that, “In fact, in what would make this case sui-generis, upon being questioned by the court, ‘X’ has even offered to stand ‘surety’ for the petitioner if he is admitted to bail, as it appears that ‘X’ would possibly be the only local surety available to the petitioner, who otherwise hails from Bihar.”

While the survivor’s offer to stand surety was taken into consideration, the Court did not make it a condition for bail. While allowing the application, the Court also clarified that nothing in the order should be construed as an expression of opinion on the merits of the pending trial.