It is settled law that the custodial interrogation is qualitatively more elicitation oriented than questioning a suspect who is well ensconced with a favourable order under Section 482 of the Bharatiya Nagarik Suraksha Sanhita (BNSS’) [State v.
Anil Sharma : (1997) 7 SCC 187]. Granting anticipatory bail to
the applicant would undoubtedly impede further investigation.
An order of bail cannot be granted in a routine manner so as to
allow the applicant to use the same as a shield. {Para 15 }
16. This court has perused the case diary and gone through the
statements of the victim, mother of the victim and co-accused -
Sameer. There are materials in the case diary implicating the
applicant in the allegations which the police are investigating.
The allegations against the applicant are of a grave and serious
nature, involving the exploitation and sexual abuse of a minor
girl. The applicant is accused of coercing the victim into
engaging in sexually explicit acts over video calls, recording the
same without her consent, and using these recordings to
blackmail her repeatedly. Such acts not only violate the personal
dignity and privacy of the victim but also constitute serious
offences under the BNS and the POCSO Act.
17. The allegations against the applicant points towards the
exploitation of a child by coercing and blackmailing her for
pornographic purposes. The alleged recording and sharing of
explicit material involving the minor victim is a grave offence.
19. The present case underscores the increasing misuse of
social media and technology to exploit and intimidate vulnerable
individuals, particularly minors. In light of the allegations,
perusal of the statement of the victim and co-accused Sameer,
this Court finds that granting pre-arrest bail would set an
inappropriate precedent and undermine the societal interest in
safeguarding children from such reprehensible acts.
20. The actions of the applicant exemplify the disturbing trend
of exploiting the anonymity and reach of social media platforms
to perpetrate sexual crimes against minors. This Court cannot
ignore the broader societal implications of such acts and the
urgent need to send a strong message against the misuse of
technology.
21. Considering that the present case involves electronic
gadgets and electronic evidence, the task of the Investigating
Agency seems arduous and they need to be given a fair play in
the joints to investigate the matter in the manner they deem
appropriate. The matter requires thorough investigation which
ought not to be curtailed by passing an order granting pre-arrest
bail.
22. The relief of pre-arrest bail is a legal safeguard intended to protect individuals from potential misuse of power of arrest. It plays a crucial tool in preventing harassment and unjust detention of innocent persons. However, the court must carefully balance the individual’s right to liberty with the interests of justice. While the presumption of innocence and the right to liberty are fundamental principles of law, they must be considered in conjunction with the gravity of the offence, its societal impact, and the need for a comprehensive and unobstructed investigation.
23. Considering the material on record, it cannot be held at this stage that the investigation is being carried out with the intention to injure or humiliate the applicant and does not indicate false implication of the applicant. The nature and gravity of allegations are serious. Specific allegations have been made regarding the applicant’s alleged involvement in the commission of the offence.
24. The material presented by the prosecution establishes a prima facie involvement of the applicant. Granting pre-arrest bail to the applicant would undoubtedly impede further investigation.
25. The present application is accordingly dismissed.
IN THE HIGH COURT OF DELHI AT NEW DELHI
BAIL APPLN. 4440/2024
SAIFUL KHAN Vs STATE & ANR.
CORAM:
HON'BLE MR. JUSTICE AMIT MAHAJAN
AMIT MAHAJAN, J. (Oral).
Date of Decision: 03rd December, 2024
CRL.M.A. 36333/2024 (exemption form filing certified copy of
annexures and true typed copy of dim annexures and also
maintaining 4 inch margin on the left side of the annexures)
1. Exemption allowed, subject to all just exceptions.
2. The application stands disposed of.
3. The present application is filed seeking pre-arrest bail in
FIR No. 600/2024 dated 30.08.2024, registered at Police Station
Nand Nagri, for offences under Sections 354(D)/506 of the
Indian Penal Code, 1860 (IPC) and Section 12 of the Protection
of Children from Sexual Offenses Act, 2012 (POCSO).
4. Briefly stated, the FIR in the present case was registered
based on the complaint filed by the complainant/victim, a 15-
year-old minor girl studying in Class XI, alleging that she was
subjected to severe harassment, blackmail, and sexual
exploitation by the applicant, Saiful Khan, and the co-accused,
Sameer. The complainant alleged that in November 2022, the co-accused Sameer had begun following her on her way to school
and persistently asked her to be his friend. Upon her refusal, the
victim informed her mother, who approached Sameer’s family,
leading to a temporary cessation of his actions. However, in
August 2023, Sameer resumed following the victim and, in
November 2023, contacted her via Instagram, claiming that he
sought a “normal friendship.” The victim reluctantly started
communicating with him, and during their interactions, she
shared a few photographs of herself, and in all of them she was
clothed.
5. It is alleged that in May 2024, the applicant contacted the
victim on Instagram, introducing himself as Sameer’s friend.
Despite her refusal to communicate, Saiful sent the victim a
photograph where she was seen nude and threatened to make it
viral unless she complied with his demands. Fearing public
humiliation, the victim was coerced into communicating with
Saiful through Instagram video calls. During these calls, Saiful
forced the complainant to remove her clothes, which he recorded.
He subsequently used these recordings to repeatedly blackmail
her. She alleged that in June 2024, the applicant shared one of the
victim’s explicit photographs with co-accused - Sameer.
Encouraged by this, co-accused - Sameer also began threatening
the victim, demanding that she engage in similar video calls with
him. Succumbing to the coercion, the victim complied, and co-accused - Sameer recorded these calls as well. The victim further
alleged that both accused persons continuously threatened to
make the complainant’s photographs and videos public.
6. The learned counsel for the applicant submits that the
applicant has been falsely implicated in the present case. He
submits that the allegations made by the victim are fabricated and
intended to malign the applicant without any substantive
evidence.
7. He submits that the applicant is a young individual with no
criminal antecedents. He emphasized that the applicant had left
India for employment in Riyadh, Saudi Arabia, in early
September 2024, as evidenced by his visa and travel documents.
He returned to India voluntarily in November 2024 upon learning
about the present FIR. This demonstrates his bona fide to
cooperate with the investigation rather than evade the process of
law.
8. The learned counsel pointed out that the victim herself
admitted that she has never met the applicant in person. The
interactions were allegedly limited to online platforms, which,
according to the counsel, does not warrant the stringent measures
being invoked against the applicant.
9. He submits that the applicant is a young individual with a
promising future. Incarceration at this stage would irreparably
harm his career and prospects.
10. Per Contra, the learned Additional Public Prosecutor
(APP) for the State opposes the grant of any relief to the
applicants. He submits that the allegations against the applicant
are serious in nature. He submits that the learned Additional
Sessions Judge rightly rejected the bail of the applicant, and that
there is no ground to interfere with the same.
11. The learned APP submits that custodial interrogation of
the applicant is essential to recover the electronic devices
allegedly used in the offence, ascertain the extent of the offenses,
and trace the potential circulation of explicit material.
12. The State expressed concerns over the likelihood of the
applicant attempting to intimidate the victim or influence
witnesses if released on bail. The nature of the threats previously
made by the applicant indicates a significant risk of obstruction
in the course of justice.
13. It is to be kept in mind that the investigation is currently at
a nascent stage. The considerations governing the grant of prearrest bail are materially different than those to be considered
while adjudicating application for grant of regular bail, as in the
latter case, the accused is already under arrest and substantial
investigation is carried out by the investigating agency.
14. It is trite law that the power to grant a pre-arrest bail under
Section 482 of the BNSS is extraordinary in nature and is to be
exercised sparingly. Thus, pre-arrest bail cannot be granted in a
routine manner. The Hon’ble Apex Court, in the case of State of
A.P. v. Bimal Krishna Kundu : (1997) 8 SCC 104, held as
under:
“8. A three-Judge Bench of this Court has stated
in Pokar Ram v. State of Rajasthan [(1985) 2 SCC
597 : 1985 SCC (Cri) 297 : AIR 1985 SC 969] : (SCC
p. 600, para 5)
“5. Relevant considerations governing the
court's decision in granting anticipatory bail
under Section 438 are materially different from
those when an application for bail by a person
who is arrested in the course of investigation
as also by a person who is convicted and his
appeal is pending before the higher court and
bail is sought during the pendency of the
appeal.”
9. Similar observations have been made by us in a
recent judgment in State v. Anil Sharma [(1997) 7
SCC 187 : 1997 SCC (Cri) 1039 : JT (1997) 7 SC
651] : (SCC pp. 189-90, para 8)
“The consideration which should weigh with
the Court while dealing with a request for
anticipatory bail need not be the same as for
an application to release on bail after arrest.”
xxxx xxxx xxxx
12. We are strongly of the opinion that this is not a
case for exercising the discretion under Section 438 in
favour of granting anticipatory bail to the
respondents. It is disquieting that implications of
arming the respondents, when they are pitted against
this sort of allegations involving well-orchestrated
conspiracy, with a pre-arrest bail order, though
subject to some conditions, have not been taken into
account by the learned Single Judge. We have
absolutely no doubt that if the respondents are
equipped with such an order before they are
interrogated by the police it would greatly harm the
investigation and would impede the prospects of
unearthing all the ramifications involved in the
conspiracy. Public interest also would suffer as a
consequence. Having apprised himself of the nature
and seriousness of the criminal conspiracy and the
adverse impact of it on “the career of millions of
students”, learned Single Judge should not have
persuaded himself to exercise the discretion which
Parliament had very thoughtfully conferred on the
Sessions Judges and the High Courts through Section
438 of the Code, by favouring the respondents with
such a pre-arrest bail order.”
15. It is settled law that the custodial interrogation is
qualitatively more elicitation oriented than questioning a suspect
who is well ensconced with a favourable order under Section 482
of the Bharatiya Nagarik Suraksha Sanhita (BNSS’) [State v.
Anil Sharma : (1997) 7 SCC 187]. Granting anticipatory bail to
the applicant would undoubtedly impede further investigation.
An order of bail cannot be granted in a routine manner so as to
allow the applicant to use the same as a shield.
16. This court has perused the case diary and gone through the
statements of the victim, mother of the victim and co-accused -
Sameer. There are materials in the case diary implicating the
applicant in the allegations which the police are investigating.
The allegations against the applicant are of a grave and serious
nature, involving the exploitation and sexual abuse of a minor
girl. The applicant is accused of coercing the victim into
engaging in sexually explicit acts over video calls, recording the
same without her consent, and using these recordings to
blackmail her repeatedly. Such acts not only violate the personal
dignity and privacy of the victim but also constitute serious
offences under the BNS and the POCSO Act.
17. The allegations against the applicant points towards the
exploitation of a child by coercing and blackmailing her for
pornographic purposes. The alleged recording and sharing of
explicit material involving the minor victim is a grave offence.
19. The present case underscores the increasing misuse of
social media and technology to exploit and intimidate vulnerable
individuals, particularly minors. In light of the allegations,
perusal of the statement of the victim and co-accused Sameer,
this Court finds that granting pre-arrest bail would set an
inappropriate precedent and undermine the societal interest in
safeguarding children from such reprehensible acts.
20. The actions of the applicant exemplify the disturbing trend
of exploiting the anonymity and reach of social media platforms
to perpetrate sexual crimes against minors. This Court cannot
ignore the broader societal implications of such acts and the
urgent need to send a strong message against the misuse of
technology.
21. Considering that the present case involves electronic
gadgets and electronic evidence, the task of the Investigating
Agency seems arduous and they need to be given a fair play in
the joints to investigate the matter in the manner they deem
appropriate. The matter requires thorough investigation which
ought not to be curtailed by passing an order granting pre-arrest
bail.
22. The relief of pre-arrest bail is a legal safeguard intended to
protect individuals from potential misuse of power of arrest. It
plays a crucial tool in preventing harassment and unjust detention
of innocent persons. However, the court must carefully balance
the individual’s right to liberty with the interests of justice. While
the presumption of innocence and the right to liberty are
fundamental principles of law, they must be considered in
conjunction with the gravity of the offence, its societal impact,
and the need for a comprehensive and unobstructed investigation.
23. Considering the material on record, it cannot be held at this
stage that the investigation is being carried out with the intention
to injure or humiliate the applicant and does not indicate false
implication of the applicant. The nature and gravity of allegations
are serious. Specific allegations have been made regarding the
applicant’s alleged involvement in the commission of the
offence.
24. The material presented by the prosecution establishes a
prima facie involvement of the applicant. Granting pre-arrest bail
to the applicant would undoubtedly impede further investigation.
25. The present application is accordingly dismissed.
26. It is clarified that any observations made in the present
order are for the purpose of deciding the present bail application
and should not influence the outcome of the trial and also not be
taken as an expression of opinion on the merits of the case.
AMIT MAHAJAN, J
DECEMBER 3, 2024
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