Chambers of Ishaan Garg
Ch. No. 217, Western Wing, District & Sessions Court, Tis Hazari, New Delhi, Delhi 110054
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Though the heinousness of the offence alleged will beget the length of sentence after trial, in order to give due weightage to the intent and purpose of the Legislature in engrafting section 29 in this special statute to protect children from sexual offences, while deciding a bail plea at the post-charge stage, in addition to the nature and quality of the evidence before it, the court would also factor in certain real life considerations, illustrated below, which would tilt the balance against or in favour of the accused:
a. the age of the minor victim: the younger the victim, the more heinous the offence alleged;
b. the age of the accused: the older the accused, the more heinous the offence alleged;
c. the comparative age of the victim and the accused: the more their age difference, the more the element of perversion in the offence alleged;
d. the familial relationship, if any, between the victim and the accused: the closer such relationship, the more odious the offence alleged;
e. whether the offence alleged involved threat, intimidation, violence and/or brutality;
f. the conduct of the accused after the offence, as alleged;
g. whether the offence was repeated against the victim; or whether the accused is a repeat offender under the POCSO Act or otherwise;
h. whether the victim and the accused are so placed that the accused would have easy access to the victim, if enlarged on bail: the more the access, greater the reservation in granting bail;
i. the comparative social standing of the victim and the accused: this would give insight into whether the accused is in a dominating position to subvert the trial;
j. whether the offence alleged was perpetrated when the victim and the accused were at an age of innocence: an innocent, though unholy, physical alliance may be looked at with less severity;
k. whether it appears there was tacit approval-in-fact, though not consent-in-law, for the offence alleged;
l. whether the offence alleged was committed alone or along with other persons, acting in a group or otherwise;
m. other similar real-life considerations.
The above factors are some cardinal considerations, though far from exhaustive, that would guide the court in assessing the egregiousness of the offence alleged; and in deciding which way the balance would tilt. At the end of the day however, considering the myriad facets and nuances of real-life situations, it is impossible to cast in stone all considerations for grant or refusal of bail in light of section 29. The grant or denial of bail will remain, as always, in the subjective satisfaction of a court; except that in view of section 29, when a bail plea is being considered after charges have been framed, the above additional factors should be considered.
78. It goes without saying that while considering a bail plea at any stage, whether before or after framing of charges, the court would of course apply all the other well settled principles and parameters for grant or denial of bail
79. It is important to state here that the aforesaid considerations are only to be applied while deciding a bail plea and may not have a bearing on the merits of the case.
IN THE HIGH COURT OF DELHI
Bail Appl. 1559/2020
Decided On: 22.09.2020
Dharmander Singh Vs. The State (Govt. of NCT, Delhi)
Hon'ble Judges/Coram:
Anup Jairam Bhambhani, J.
Citation: MANU/DE/1775/2020
