Delhi High Court
Subendu vs State Of Nct Of Delhi Through Sho, Ps … on 15 July, 2025
Author: Neena Bansal Krishna
Bench: Neena Bansal Krishna
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Reserved on: 10th July, 2025
Pronounced on: 15th July, 2025
+ BAIL APPLN. 1433/2025
SUBENDU
Through Parokar/Father Mohinder Singh
S/o Sh. Shiv Singh,
R/o E-89/A, GRO, Kh. No. 56/2,
Near Dev Property,
Saudamani Public School,
Jai Vihar, Bapraula, Delhi-110043 .....Petitioner
Through: Mr. Rajesh Ranjan (through VC),
Mr. Vikash Nain and Mr. Abhishek,
Advocates.
versus
1. STATE OF NCT OF DELHI THROUGH SHO,
PS SAFDARJUNG ENCLAVE ....Respondent No.1
2. X
Complainant) ....Respondent No.2
Through: Mr. Shoaib Haider, APP for the State
Mr. Prashant Vashist, Adv. for the
Complainant along with the
Complainant.
SI Surendra Das PS Safdarjung
Enclave.
CORAM:
HON'BLE MS. JUSTICE NEENA BANSAL KRISHNA
J U D G M E N T
NEENA BANSAL KRISHNA, J.
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DigitallySigned By:VIKAS
ARORA
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Signing Date:15.07.2025
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1. First Bail Application under Section 483 of the Bharatiya Nagarik
Suraksha Sanhita, 2023 (hereinafter referred to as ‘B.N.S.S.‟) has been filed
on behalf of the Applicant, Subendu, for grant of Regular Bail in FIR No.
71/2024 dated 26.03.2024 under Section 376/506 of the Indian Penal Code,
1860 (hereinafter referred to as ‘IPC‟) and Section 6 of POCSO Act,
registered at Police Station Safdarjung Enclave.
2. The Applicant, Subendu aged about 25 years, is in judicial custody
since 26.03.2024. He has filed five Bail Applications but all have been
dismissed.
3. It is submitted that there were 16 Prosecution witnesses out of which
three were the main witnesses and rest are all formal. These three main
witnesses, namely, Prosecutrix, her father and an independent witness,
Naveen Yadav, have already been examined and discharged.
4. The Statement of the Prosecutrix about she being taken to Dhawan
BNB Guest House in the month of October/November in the year 2020 or of
having sexual intercourse with her, are not proved by the Hotel records
produced by the Prosecution. The Hotel records show their visits in 2023
and 2024 when the Prosecutrix was a full grown adult. Even if the Statement
of the Prosecutrix is assumed to be true, it is explicit that the Prosecutrix
willingly and knowingly entered into the sexual relationship with the
Applicant. She does not allege any force or blackmailing on the basis of
obscene videos by the Applicant.
5. The record of Hotel Paradise International also shows that the two
never went to that Hotel before 2023/2024.
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6. On one hand, the Prosecutrix has deposed in her testimony that the
Applicant used to commit sexual assault on her in Rose Garden, Hauz Khas
between 2017-2020 but on the other hand, she has stated that from 2018, the
Applicant used to commit sexual assault on her in his Tuition Centre at R.K.
Puram. These two statements are not only contradictory but it is also
perplexing that when the Applicant had a safe place, i.e. his exclusively
occupied Tuition Centre for executing his alleged nefarious designs, why
would he take the risk of public gaze at a public place such as Rose Garden,
Hauz Khas.
7. The Statement of the Prosecutrix that the Applicant had committed
sexual assault multiple times on her between 2017-2020 is uncorroborated.
Hence, the offence under Section 6 of POCSO Act is not made out.
8. It is further contended that the testimony of the father of the
Prosecutrix, is based on hearsay evidence and is not admissible. The
independent witness, Naveen Yadav, who was the teacher in the Coaching
Institute in KD Campus and got acquainted with the Prosecutrix only a few
days before the lodging of FIR, has also given hearsay evidence. His
testimony raises suspicion as to the veracity because it is hard to believe that
the Prosecutrix by then a major girl would recount her plight to a stranger
male and not to her mother, elder sister or father. Manifestly, this witness
was roped in for bringing an independent witness as father‟s testimony may
have been recorded as that of an interested witness.
9. The other evidence is documentary, namely, the FSL Report of
Mobile Phone, Call Data Records, Medical Reports, which are already on
record. The perusal of the evidence of the Prosecution witnesses and the
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documents reflects that there is a fair chance of acquittal of the Applicant,
Subendu.
10. The FSL Report of WhatsApp messages explicitly show a consensual
romantic relationship between the Prosecutrix and the Applicant. The
Applicant‟s Facebook messages alleged to be sent in 2017, when the
Prosecutrix was minor, have not been brought on record. It is perplexing that
while the Prosecutrix has preserved the face book messages of Meenakshi
Panda and Kuljeet Singh; she has not preserved or produced the facebook
messages of the Applicant. There is not an iota of corroboration of her
allegations pertaining to the period between 2017 and 2020 against the
Applicant.
11. The FSL Report states that obscene videos and photographs of the
Prosecutrix were not found on the mobile phone and laptop of the Applicant.
They were found in the gallery of the Complainant‟s phone. FSL Report
does not clarify if those videos were sent to the Prosecutrix by the
Applicant. The videos found in the mobile phone of the Prosecutrix do not
reveal the identity of the Applicant. Thus, the allegations of sexual
intercourse are not proved. The Prosecution cannot get the benefit of Section
111A of the Indian Evidence Act. Even the WhatsApp chats on record; do
not establish the factum of sexual intercourse between the two.
12. The Bail is sought on the grounds that the material witnesses already
stand recorded and there is no apprehension of the Prosecutrix or the
witnesses being influenced by the Applicant. Furthermore, the Facebook
chats between the Prosecutrix and Kuljeet Singh, which are alleged to be
fake Profiles created by the Applicant in the name of his friend, in order to
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ARORA
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gain sympathy of the Prosecutrix, has been filed along with the Chargesheet.
However, Kuljeet Singh is neither cited as a witness nor examined and
therefore, these chats are inadmissible. Further, the FSL Report also does
not corroborate them.
13. The documentary evidence is already on record and there is no
likelihood of its being tampered by the Accused. There is also no chance of
his influencing the formal or the official witnesses. He has no criminal
antecedents and there is nothing to show that he ever tried to harm the
Prosecutrix. The WhatsApp conversations do not signify any real threat or
harm to the Prosecutrix or her family members.
14. The allegations under Section 6 of POCSO Act have been made after
an inordinate delay of seven years. The Prosecutrix had sufficient
opportunity from 2020 to 2024, post attaining her majority to report the
offence but she continued to indulge in a consensual relationship, which is
fully corroborated by WhatsApp messages as proved by FSL Report.
15. As per the Medico Legal Report, Prosecutrix had given the history
that the Applicant had done sexual intercourse with her on the pretext of
marriage. However, in a Statement under Section 164 Code of Criminal
Procedure, 1973, she stated that the first sexual intercourse was consensual
and the subsequent sexual intercourse were out of fear and blackmailing by
the Applicant. Her own statements are contradictory. She admits that they
were in consensual relationship.
16. It is further submitted that that there are 13 witnesses, who are yet to
depose. The Trial is likely to take long. Further incarceration of the
Applicant to deny him the Bail, would not be in the interest of justice,
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ARORA
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especially in view of fair chances of acquittal from the Charges under
Section 6 of POCSO Act and Section 376 IPC..
17. It is also contended that a civil dispute arising out of failed marriage
proposal, negotiations and mutual financial transactions between the
Applicant and the father of the Prosecutrix, has been given a colour of
criminality. The WhatsApp messages support the admissions made by father
of the Prosecutrix in the cross-examination, which the Applicant and
Prosecutrix were informally betrothed to each other and this fact was known
to her parents.
18. However, because of irreconcilable disputes between the two families
due to some hostility that transpired between the elder sister of the
Prosecutrix and the Applicant in 2024 and the Applicant disclosed to the
Prosecutrix that he would be moving abroad, has led to his false implication.
19. It is submitted that the Applicant is a young man with bright career
prospects and further incarceration would cause irreparable injury to him.
He undertakes to remain bound by whatever conditions be imposed by the
Court. He has, therefore, submitted that he be granted Bail.
20. Reliance has been placed on Hussain and Anr. vs Union of India &
Ors., (2017) 5 SCC 702 wherein Apex Court had held that Speedy trial is
the fundamental right and denial of opportunity to prepare defense
contravenes Article 21.
21. Reliance has also been placed on Dharmender Singh vs The State
(Govt. of NCT, Delhi), in Bail Application No. 1559/2020 decided on
22.09.2020 by a Co-ordinate Bench of this Court wherein it was observed
that Section 29 of POCSO Act does not mean that the presumption of
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innocence, which is the foundational tenet of criminal jurisprudence, is to be
thrown to the winds. Applying Section 29 to Bail proceedings at a stage
before even the Charges are framed, would in effect mean that the Accused
must prove that he has not committed the offence even before he is told the
precise offence with which he is charged, which would be violence to the
legal rationality. Therefore, if a Bail Application is being considered before
the Charges are framed, Section 29 has no application.
22. Reliance has also been placed on Dataram Singh vs. The State of
Uttar Pradesh, (2018) 3 SCC 22 wherein it was emphasised that the factors
that need to be considered while granting Bail is whether the Accused has
any opportunity to tamper the evidence or influence the witnesses.
23. If the Investigating Officer does not find it necessary to arrest
Accused persons during investigations, a strong case should be made out for
placing that person in judicial custody, after a Chargesheet is filed. A
humane attitude is required to be adopted by a Judge, while dealing with an
Application for remanding an Accused to police custody or judicial custody.
24. Further reliance has been placed on Satender Kumar Antil vs. Central
Bureau of Investigation & Anr. and Arnab Manoranjan Goswami vs. State of
Maharashtra.
25. Status Report has been filed on behalf of the State wherein the
details of the registration of the FIR as well as the investigations undertaken
on the basis of which Charge-Sheet has been filed, has been detailed. It is
submitted that the Chargesheet and the Supplementary Chargesheet have
already been submitted. During the trial, both the victim/Prosecutrix and her
father have supported the case of the Prosecution in their respective
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testimony. The earlier Bail Applications have been dismissed by the Ld.
Trial Court. It is submitted that there is a likelihood of the Applicant
threatening the witnesses if granted Bail. Hence, the Bail is strongly
opposed.
26. Submissions heard and the record perused.
27. The FIR in the present Case was registered on the Complaint made by
the Prosecutrix „X‟ on 26.03.2024, when she was 22 years old. In her
Complaint, she detailed that she had met the Accused in the year 2017 and
the Applicant was her Tuition Teacher for Class XI and XII during the
period 2017 to 2019. He befriended her on Facebook in 2017 and created
two fake IDs in the name of his sister, “M P” and his friend, Kuljeet Singh,
to gain the trust of the Prosecutrix.
28. On 01.08.2017, they got into consensual relationship. In the month of
August, 2017, they met in Rose Garden where he groped her and kissed her.
He also inserted his finger in her vagina. He continued meeting her and
doing fingering/groping/kissing till the year 2020. In the year 2020 in
October-November, the Applicant told her that it was important for him to
have sexual intercourse before the age of 25.
29. The Prosecutrix fell in his trap. He took her to a Hotel in Mahipalpur
where they had consensual intercourse. He made a video without her
consent/knowledge. Thereafter, they had sexual relationship multiple times
and the Applicant made her videos.
30. In the year 2023, they started developing differences because of his
lies. She came to know that the Applicant was playing bluff games with her
and was not a stable person. She tried to distance herself from him but the
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Applicant started abusing her and threatening to kill her and her family
members, if she distanced herself. He sent her an obscene video and
threatened to send the same on social media, relatives, friends etc.
31. Thereafter, the Applicant has made the Complaint dated 26.03.2024
out of which FIR No. 71/2024 dated 26.03.2024 under Section 376/506 IPC
and Section 6 of POCSO Act, has been registered at Police Station
Safdarjung Enclave.
32. While considering the Bail, it may not be appropriate to consider the
testimony of the Prosecutrix, her father and the independent witness in detail
but it cannot be overlooked that the testimony of three material witnesses,
has already been recorded.
33. The date of birth of the Prosecutrix is 05.08.2002. She came in
contact with the Applicant for the first time in the year 2017 when she was
about 15 years old. The Applicant was the Tuition Teacher in the Coaching
Centre that was being run by him where the Prosecutrix had gone for the
coaching.
34. In the Coaching Centre, they met and thereafter developed a
relationship whereby they started going out to Rose Garden, Hauz Khas and
other places. According to the Prosecutrix, the allegations are that during the
period from 2017 to 2020 (that is the time when she attained majority) he
was groping, kissing and inserting his finger in her vagina.
35. It is only in 2020, after she attained a majority that she was weighed
by his assertions that he must have sexual intercourse before he turns 25
years and consequently, was taken to a Hotel in Mahipalpur where they had
consensual relationship. According to her, he continued to do so, multiple
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times under the threat of having prepared her obscene videos, which he
threatened to forward to put in the social media and forwarded to her friends
and relatives.
36. The Prosecutrix attained the age of 20, despite which the Applicant
continued to her sexual relationship with her till 2024 when she finally made
the Complaint on which the FIR has been registered. There is much
evidence to explain their relationship by way of Facebook and WhatsApp
Chats. However, this is not the appropriate stage to go into the merits of the
Prosecution Case.
37. The Chargesheet already stands filed. There are 16 Prosecution
witnesses, out of which the three material/public witnesses including the
Prosecutrix has already been recorded. The 13 Prosecution witnesses, who
remain to be examined, are of the record and documents and are official
witnesses. Essentially, the evidence that remains to be proved is
documentary or official. the Applicant is in judicial custody, since
26.03.2024, and the trial may take some time to get concluded.
38. Therefore, considering the totality of circumstances, the accused is
granted Regular Bail, on the following terms and conditions:
a) The Petitioner/Accused shall furnish a personal bond of
Rs.35,000/- and one surety of the like amount, subject to the
satisfaction of the learned Trial Court.
b) The Petitioner/Accused shall appear before the Court as and
when the matter is taken up for hearing;
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c) The Petitioner/Accused shall provide his mobile
number/changed mobile number to the IO concerned which shall be
kept in working condition at all times;
d) The Petitioner/Accused shall not indulge in any criminal
activity and shall not communicate or intimidate the witnesses.
e) In case the Petitioner/Accused changes his residential address,
the same shall be intimated to learned Trial Court and to the
concerned I.O.
39. The copy of this Order be communicated to the concerned Jail
Superintendent, as well as, to the learned Trial Court.
40. The Bail Application is accordingly disposed of.
(NEENA BANSAL KRISHNA)
JUDGE
JULY 15, 2025/RS
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ARORA
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