Sheikh Asikul vs State of Nct of Delhi & Anr Bail Appln. 3062/2024
Synopsis
The petitioner, accused in a case registered under Sections 323, 342, 376D of the Indian Penal Code, 1860 and Section 6 of the Protection of Children from Sexual Offences Act, 2012, sought regular bail. The prosecution alleged that the accused, along with two others, repeatedly raped a Bangladeshi national over a period of approximately five months, resulting in pregnancy. The prosecutrix was not conversant with languages other than Bangla. The accused contended that the evidence on record, including the prosecutrix's conduct of remaining silent throughout the alleged period and during travel to Jaipur without any complaint, indicated consent. The ossification report estimated the prosecutrix's age at 17‑19 years in January 2019. The High Court, while acknowledging the gravity of offences under the POCSO Act, held that indefinite incarceration ignoring the evidentiary record is impermissible. Observing that the prosecutrix was either a major or nearing majority and fully conscious of her choices, and that her prolonged silence coupled with travel without complaint suggested consent, the Court granted bail. The Court also noted that the prosecutrix was aware of the accused's marital status, undermining the allegation of consent obtained on the false promise of marriage. The accused was directed to be released on furnishing a personal bond of ₹10,000 with one surety.
BAIL APPLN. No. 3062 of 2024
High Court of Delhi at New Delhi
Coram: Hon'ble Mr. Justice Girish Kathpalia (Single Judge)
Date of Decision: February 13, 2026
1. Legal Framework
1.1. Statutes and Provisions Involved
Legislation Sections Offence/Nature Indian Penal Code, 1860 Section 323 Punishment for voluntarily causing hurt Section 342 Punishment for wrongful confinement Section 376 DGang rape Section 34 Common intention Protection of Children from Sexual Offences Act, 2012Section 6Aggravated penetrative sexual assault (where victim is a child) Code of Criminal Procedure, 1973Section 439Special powers of High Court or Court of Session regarding bail
1.2. Key Precedential Principles (Implicitly Applied)
While no specific precedents are cited in this brief order, the judgment implicitly relies upon settled principles governing bail in sexual offence cases:
Presumption of innocence until conviction, though tempered by the gravity of the offence.
Bail is the rule, jail is the exception – even in cases involving stringent statutes like the POCSO Act, indefinite pre-trial detention is not justified if the evidence prima facie indicates consent or lack of culpability.
Age determination – in POCSO cases, the benefit of doubt regarding age (when ossification reports give a range crossing the majority threshold) may enure to the accused for the purpose of bail, without prejudging the trial.
False promise of marriage – consent obtained on the false pretext of marriage can vitiate consent, but this requires evidence that the promise was false ab initio and that the accused never intended to marry. Knowledge of the accused's existing marriage is a relevant factor.
2. Factual Matrix
2.1. The Prosecution Case
The prosecutrix, a Bangladeshi national not conversant with any language other than Bangla, immigrated to India.
On her complaint, FIR No. 110 of 2018 was registered at Police Station Govind Puri.
Allegations: The accused/applicant brought her from Kolkata about five months prior to the FIR with a promise of employment. She stayed in his house, where his brother Raju Sheikh and another person also resided.
All three persons repeatedly raped her, resulting in pregnancy. Whenever she objected, she was beaten and forcibly raped.
During this period, Raju Sheikh arranged an Aadhar Card in her name.
Thereafter, one Farida Begum took her to Jaipur on a job promise. Due to a dispute between Farida Begum and her husband, the prosecutrix fled and reached a police station. No offence was committed against her in Jaipur.
2.2. Key Evidentiary Features at the Bail Stage
All public witnesses, including the prosecutrix, stand examined before the trial court.
The prosecution could not specify the dates or even the period during which the alleged rapes occurred, except that the FIR was registered on 31 March 2018.
Ossification report (January 2019): Estimated radiological bone age of the prosecutrix was 17‑19 years. Thus, at the time of the alleged occurrence (approximately five months before March 2018), she was either a major or nearing majority.
The prosecutrix remained completely silent throughout her stay in Delhi and during her travel to Jaipur. She made no complaint to Farida Begum, with whom she travelled.
The prosecutrix was aware that the accused/applicant was already married.
3. Issues for Determination
Whether the accused is entitled to regular bail pending trial in a case involving gang rape and offences under the POCSO Act.
Whether the age of the prosecutrix, as indicated by the ossification report, coupled with her conduct (silence, travel without complaint, knowledge of accused's marriage), creates a prima facie case for grant of bail.
Whether the mere fact that the offence is under the POCSO Act mandates denial of bail irrespective of the evidentiary record.
4. Ratio Decidendi
4.1. POCSO Allegations Do Not Automatically Justify Indefinite Detention
“Merely because, the offence with which the accused/applicant has been charged is under the POCSO Act, it does not mean that the accused/applicant be kept in jail endlessly, ignoring the record.”
The Court held that the seriousness of the enactment does not oust the court's duty to examine the evidentiary record at the bail stage. If the material on record prima facie indicates consent or lack of culpability, bail cannot be withheld solely on the basis of the nature of the charges.
4.2. Age Ambiguity and Consciousness of Choices
The ossification report estimated the prosecutrix's age at 17‑19 years in January 2019. At the time of the alleged occurrence (approximately mid‑2017 to early 2018), she was either a major or at least nearing majority. The Court observed:
“For present purposes, it cannot be disputed that at the time of the alleged occurrence, the prosecutrix had attained the age of majority or at least she was nearing that age and fully conscious about her choices.”
Thus, the ambiguity in age, coupled with the inability of the prosecution to specify dates, weighed in favour of the accused at the bail stage.
4.3. Silence and Conduct of Prosecutrix Indicative of Consent
“The complete silence of the prosecutrix across the entire period when she remained in Delhi followed by her travel to Jaipur, coupled with no complaint from her side to even Farida Begum with whom she travelled to Jaipur, conveys a reasonable impression that she indulged in sexual relations with the accused/applicant with consent.”
The Court found the prosecutrix's conduct—staying in the accused's house for months, travelling to Jaipur without raising any alarm, and complaining only after reaching a police station in Jaipur—as strong indicia that the sexual relations, if any, were consensual.
4.4. Awareness of Accused's Marriage Negatives 'False Promise' Allegation
The prosecutrix admitted in her testimony that she was completely aware that the accused was already married. This fatally undermined the prosecution's alternative case that consent was obtained on the false promise of marriage. A promise of marriage, when the promisor is already married, cannot reasonably be the basis for consent.
4.5. Prima Facie Assessment Does Not Prejudice Trial
The Court was careful to note that these observations are prima facie and subject to final determination by the trial court:
“Of course, the above observations are yet to be tested by way of final deliberations by the trial court. But for present purposes, the above circumstances cannot be ignored.”
5. Legal Principles Reaffirmed / Established
While this is a brief bail order and not a detailed judgment creating new law, it reaffirms the following principles in the context of POCSO and gang rape cases:
5.1. Bail in POCSO Cases – No Absolute Bar
The mere invocation of the POCSO Act does not create an irrebuttable presumption against bail. The court must assess the totality of circumstances, including the age of the prosecutrix, her conduct, and the evidentiary strength of the prosecution case.
5.2. Ossification Reports and Age Determination at Bail Stage
Where an ossification report gives an age range that straddles the majority threshold (e.g., 17‑19 years), the benefit of the ambiguity may enure to the accused for the limited purpose of bail. The court can proceed on the basis that the prosecutrix was either a major or sufficiently mature to understand her choices, without prejudging the final age determination at trial.
5.3. Conduct of the Prosecutrix as a Relevant Factor
Prolonged silence, absence of complaint to persons with whom the prosecutrix travelled, and voluntary movement without protest are relevant circumstances that can rebut the presumption of non‑consent at the bail stage.
5.4. False Promise of Marriage – Requirement of Ab Initio Falsity
For consent obtained on the false promise of marriage to vitiate consent, it must be shown that the promise was false from the inception and that the accused never intended to marry. If the prosecutrix was aware of the accused's existing marriage, the foundation of such a plea collapses.
6. Analysis and Examination by the Court
6.1. Approach to Bail in Sexual Offence Cases
The Court adopted a balanced approach, neither treating the POCSO Act as a blanket bar nor ignoring the gravity of the allegations. It scrutinised the material on record—particularly the prosecutrix's testimony, the ossification report, and the timing of the complaint—to form a prima facie view.
6.2. Significance of the Prosecutrix's Testimony
The prosecutrix's own testimony revealed:
She stayed in the accused's house for months without complaint.
She travelled to Jaipur with Farida Begum without disclosing any grievance.
She was aware of the accused's marital status.
These admissions, at the bail stage, significantly weakened the prosecution's narrative of continuous forcible rape.
6.3. Ossification Report and the 'Date of Occurrence' Problem
The prosecution's inability to specify the dates of the alleged rapes made it impossible to pinpoint the prosecutrix's exact age at the time of the incident. The ossification report, conducted in January 2019, indicated an age range of 17‑19 years. If the incidents occurred in late 2017, the prosecutrix could well have been 18. The Court, therefore, gave the accused the benefit of this ambiguity.
6.4. Distinction Between 'Consent' and 'False Promise'
The Court drew a crucial distinction: even if the sexual relationship was consensual, consent obtained on the false promise of marriage is no consent in law. However, for that principle to apply, the promise must be false. Here, the prosecutrix's knowledge that the accused was already married meant that any promise of marriage, if made, was inherently unbelievable and could not have induced consent.
7. Critical Analysis
7.1. Strengths of the Judgment
Contextual Application of POCSO – The judgment correctly holds that POCSO does not create a parallel universe where bail is automatically denied. The court must still examine the record.
Meticulous Factual Analysis – Despite its brevity, the order identifies key factual weaknesses in the prosecution case: unspecified dates, prolonged silence, travel without complaint, and knowledge of the accused's marriage.
Balanced Observations – The Court explicitly states that its observations are prima facie and subject to trial, thereby avoiding any prejudice to the final adjudication.
Protection of the Accused's Liberty – By granting bail, the Court upheld the fundamental principle that pre-trial detention should not become punitive.
7.2. Potential Critiques and Unaddressed Nuances
Treatment of the Ossification Report – The Court treats the 17‑19 year range as indicating that the prosecutrix was "at least nearing [majority] and fully conscious about her choices." However, if she was 17 at the time, she would be a child under the POCSO Act, and consent is irrelevant. The Court does not explicitly consider that possibility; it merely notes the ambiguity and proceeds on the basis that she was "either a major or nearing majority." A more precise analysis would have acknowledged that if she was 17, consent is immaterial, but given the prosecution's failure to specify dates, the ambiguity must be resolved in favour of liberty at the bail stage.
Silence of the Prosecutrix – Cultural and Linguistic Factors – The prosecutrix was a Bangladeshi immigrant, not conversant with Hindi or English, and may have been entirely dependent on the accused. Her silence could be attributable to fear, lack of agency, or linguistic isolation, rather than consent. The judgment does not engage with these factors, which are critical in human trafficking or cross-border exploitation cases.
'False Promise of Marriage' and Knowledge of Marriage – The Court reasons that because the prosecutrix knew the accused was married, any promise of marriage could not have induced consent. This is logically sound, but it assumes that the accused in fact made a promise of marriage. If the prosecutrix's testimony includes such an allegation, the Court should have noted that it is for the trial to determine whether such a promise was made and whether, despite knowledge of the marriage, the prosecutrix was misled into believing that the accused would marry her (e.g., after divorce). The judgment does not refer to the specific testimony on this point.
Gravity of Gang Rape Allegations – The Court does not specifically address the gang rape (Section 376D IPC) aspect. Even if the prosecutrix consented to one accused, consent to one does not imply consent to all. The judgment's focus on the accused's conduct and the prosecutrix's knowledge of his marriage does not directly address the allegation of multiple perpetrators. This omission may be a weakness.
7.3. Comparative Perspective
The judgment aligns with the liberal approach to bail adopted by the Supreme Court in cases where the prosecutrix's conduct is inconsistent with the allegations (see Rajesh Sharma v. State of U.P., (2017) 2 SCC (Cri) 842; State of Maharashtra v. Madhukar Narayan Mardikar, (1991) 1 SCC 57). However, it also reflects a cautious application of the 'false promise' doctrine, which has been the subject of considerable judicial debate (see Pramod Suryabhan Pawar v. State of Maharashtra, (2019) 9 SCC 608).
8. Final Outcome
The bail application was allowed. The accused/applicant was directed to be released on bail subject to:
Furnishing a personal bond in the sum of ₹10,000.
One surety of the like amount to the satisfaction of the trial court.
A copy of the order was directed to be transmitted to the concerned Jail Superintendent for informing the accused.
Order pronounced in open Court on this 13th day of February, 2026.
– GIRISH KATHPALIA, J.