V v. State (NCT of Delhi)

Palaaksha KandhariCase Summary

Bail application in a case involving the sexual assault of a minor child by her father

V v. State of NCT of Delhi
In the High Court of Delhi
B.A. 565/2022
Before Justice A.K. Mendiratta
Decided on August 05, 2022

Relevancy of the Case: Bail application in a case involving the sexual assault of a minor child by her father

Statutes and Provisions Involved

  • The Protection of Children from Sexual Offences Act, 2012 (Section 5, 6, 42) (“POCSO”)
  • The Indian Penal Code, 1860 (Section 376, 376AB, 377)
  • The Code of Criminal Procedure, 1973 (Section 164, 438, 482, 483)

Relevant Facts of the Case

  • On December 23, 2021, the Janakpuri Police Station received a PCR call regarding an alleged domestic violence and assault incident. The complainant is the petitioner’s (“V”) wife. She, along with her daughter (“K”), filed an FIR alleging that V touched his daughter’s vagina with his penis and forcefully made her taste it.
  • V threatened K to conceal the incident. After the FIR was registered, the police sent her for a medical examination.
  • Previously, the court declined V’s bail application on January 27, 2022.

Prominent Arguments by the Advocates

  • The petitioner’s counsel submitted that the parties have previously engaged in multiple litigations. Further, the complainant has provided discrepant incident timings in the FIR. Moreover, the FIR does not mention December 21 and 22. The complainant has used their child as a tool to settle scores in litigation.
  • The public prosecutor submitted that the complainant clarified the incident’s timings in a supplemental statement. Moreover, the court must consider the victim’s tender age to account for her inability to differentiate dates. K was only five years old at the time of the incident. Also, this petition under Section 438 is not maintainable.

Opinion of the Bench

  • After the amendment in 2018, Section 42 provides that when an act or omission constituting an offence is also punishable under other provisions of the Indian Penal Code, 1860, and the Information Technology Act, 2000, the offender shall be liable for punishment greater in degree.
  • The legislative intent is clear in placing an embargo on granting anticipatory bail under Section 438 of the Code of Criminal Procedure, 1973. Therefore, such an application is not maintainable in the trial court.
  • Assuming that the victim’s statement is made only by coaching or to settle scores is too far stretched. Also, the court cannot ignore the impact on the child’s future and the mother’s condition in society.

Final Decision

  • The court rejected the bail application.