A special POCSO Court in Delhi has granted pre-arrest bail to a man accused by his wife of sexually exploiting his kids. The couple is amidst a matrimonial battle and several allegations have been levelled against each other by the two in the ongoing matter.
The present application was filed by Mr X owing to the registration of FIR on the complaint given by his wife alleging sexual exploitation of their children. A case under section Section 354-A IPC & Section 12 of POCSO Act was registered in September 2021.
The elder girl child is aged about 18-years and the younger son is aged about 11-years.
There is a matrimonial dispute ongoing between both the applicant and complainant and number of litigations are pending between them including an FIR under Section 498A/406 IPC, lodged against the applicant-husband and his family members by the complainant-wife.
Allegations By Wife/Mother:
According to the woman, she found that her children were disturbed when she learnt that the applicant-husband had shown vulgar and naked pictures/videos to both the kids on his mobile phone.
In the instant case, FIR was registered on 24.09.2021 i.e. after about 16-days from the date when the applicant is stated to have visited the wife’s house on 08.09.2021, when he allegedly showed the vulgar photos and videos to children. The incident was reported to the police by way of written complaint on 09.09.2021 for the reason that children were upset and they disclosed the incident to the complainant, who reported the matter to the police.
Statement by Both Children:
After registration of FIR, statement of both the children, were recorded. The elder girl child in her statement recorded under section 164 CrP.C on 25.09.2021 stated that her father texted her and told that he wanted to meet her and then the applicant asked both the children to wait and thereupon showed a nude picture of her mother.
The applicant allegedly said to the children that they have grown up and they should know. Further, the daughter stated that she was compelled to see those pictures.
The son added his statement where he said that on 08.09.2021, applicant called him downstairs outside the office and showed nude picture of a boy and girl. The boy allegedly got scared and told his father/applicant not to show the pictures and then father said that one should see the pictures as you will learn everything.
Bail Application By Father/Husband
Swaty Singh Malik, Ld. Counsel for the applicant/accused contended that present FIR was registered due to prompting of the complainant, who is the wife of the applicant and mother of both the children. It is also contended that there is a matrimonial dispute between the complainant and applicant and allegations were also made that complainant is having an extra marital affair and number of cases are pending between the complainant and the applicant. Reference is made in the bail application.
Apprehension was expressed that applicant might be arrested by the police in the subject FIR and thus seeks bail in the subject FIR.
On the other hand, counsel for the wife opposed the bail on the basis of FIR, status report and material on record stating that allegations are serious in nature since the applicant has shown obscene videos/photos and pictures to his children. The complainant also prayed that bail application filed by the applicant is liable to be dismissed.
POCSO Court, Delhi
Hasan Anzar, Special Judge, POCSO Court, Delhi heard both sides of the submissions and arguments and before considering, whether applicant/accused has made out a case for the grant of bail, the court said it would be appropriate to refer to the Delhi High Court Judgement in Naushad Vs State, Bail Application No. 1390/2020 dated 14.08.2020, wherein judgments have been cited and also considered the Gurbaksh Singh Sibbia’s case.
Ongoing Matrimonial Dispute & Mother’s Influence on Children
The applicant is having matrimonial dispute with his wife and both the children and applicant are living separately from him for last few years. There are apparently no allegations that either in the past or in recent times, the applicant has acted cruelly with his children or caused any sexual harassment to the children.
Whether both the children are under the influence of the complainant cannot be commented at this stage.
Delay in Registration of FIR by Mother/Wife
The court observed that it appears the police have chosen to register the FIR belatedly as parties were making repeated complaint against each other and in view of the allegations, the preliminary enquiry was conducted and thereafter present FIR was registered.
It was also stated that initially the complainant also took some time to decide as to whether she intends to proceed with the complaint or not, however, it cannot be ignored that in cases, where matrimonial dispute exists, there is a general reluctance to record the FIR promptly. In the opinion of the court, FIR should have been lodged promptly, once a cognizable offence is disclosed in the complaint.
Accused Co-operated Fully In Investigation
In the instant Case, the applicant has joined the investigation and has also handed over his mobile phones to the investigating agency. Pertinently, during the course of arguments on 07.10.2021, it was vehemently contended on behalf of the complainant that applicant/accused is not having only one phone but is also having another phone. In the status report dated 23.10.2021, it was informed that second mobile phone was also seized by the Investigating Officer from the applicant/accused and the same would be subjected to analysis from FSL. Rohini, Delhi.
The possibility of showing any obscene photos with sexual intent to cause harassment is a question which shall be considered at an appropriate stage of criminal proceedings. Moreover, as per the status report dated 23.10.2021, the custodial interrogation of the applicant is not required. Therefore, there are no good grounds or justification to deny the bail to the applicant/accused.
Pre-Arrest Bail Allowed
In view of the above mentioned facts, application for bail filed by the applicant/accused is allowed. It is directed that in the event of the arrest of the applicant/accused, he shall be released on bail on furnishing of a personal bond in the sum of Rs 25,000 with one surety in the like amount to the satisfaction of the SHO/IO/Arresting Officer of the concerned police station subject to the conditions that
(a) The applicant shall appear for investigation before the IO/SHO as and when called upon to do so
(b) The applicant shall cooperate in the investigation and shall not threaten or attempt to influence the witnesses or tamper with the evidence
(c) The applicant shall not contact or extend any threat to both the children. The applicant shall also not try to meet the younger child (boy) without prior permission of the Investigating Officer or without the order of the Competent Court. However, applicant can meet the elder child being an adult subject to the permission of the Investigating Officer or this Court provided that elder child gives her willingness to meet the applicant/accused
Speaking exclusively with Men’s Day Out, Advocate Swaty Singh Malik, Counsel for the accused said,
Our main contention was that when for 20 years of marriage there wasn’t a single allegation against the father & he has dispensed every duty as a father responsibly, how can he suddenly think of sexually harassing his own children.
This is a classic case where parties stoop to the lowest kind of false allegations and misuse the law just to settle scores in matrimonial disputes & it’s condemnable.
I am happy that Honourable Judge granted anticipatory bail to the father looking at the facts of the case. He’s already suffering due to his children being used as pawns in this dispute, at least he’s spared of the incarceration.
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