BAIL APPLN./4045/2026 of KIRTIMAN ALIAS SAGAR Vs STATE GOVT. OF NCT OF DELHI on 24 September 2026

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24.09.2026 CRL.M.A. 29940/2026 (delay in refiling and curing defects)

1. For the grounds and reasons stated in the application, the same is allowed and the delay in refiling is condoned.

2. The application is disposed of. BAIL APPLN. 4045/2026

3. The present application under Section 483 of the Bharatiya Nagarik Suraksha Sanhita, 20231 seeks regular bail in FIR No. 146/2024, registered at P.S. Ashok Vihar under Section 376 of the Indian Penal Code, 18602 and 1 “BNSS” 2 “IPC”

Section 6 of the Protection of Children from Sexual Offences Act, 2012.3 The Applicant has remained in judicial custody since 23rd July, 2024.

4. This is the Applicant’s fifth attempt at securing regular bail. His fourth bail application was rejected by the Special Court on 15th May, 2026. Significantly, by that stage the victim had already been examined and cross- examined, and the order records that she did not oppose the Applicant’s release on bail.

5. Counsel for the Applicant submits that the investigation is complete, the charge-sheet has been filed and no further custodial interrogation is required. The victim, who is the principal prosecution witness, has already been examined and cross-examined, and the medical as well as scientific evidence stands secured in official custody. Particular reliance is placed on the victim’s deposition to contend that she did not attribute any force, threat, coercion or inducement to the Applicant. Counsel is conscious that, if the victim was a minor at the relevant time, her consent would have no legal efficacy; the submission, however, is that her testimony remains relevant while assessing the nature of the accusation and the necessity of continued custody. It is further pointed out that the victim has not opposed the Applicant’s release, the Applicant has no criminal antecedents, is a permanent resident of Delhi, and has remained in custody for over two years. In these circumstances, it is urged that his further incarceration serves no useful purpose and that any apprehension of the State regarding flight risk or to maintain the integrity of the Trial can adequately be addressed by appropriate conditions.

6. The State opposes the application. It submits that the victim was a 3 “POCSO Act”

child at the relevant time, as borne out by the school record relied upon by the prosecution; that the Applicant is her elder brother; that the sexual acts were repeated; and that the resulting pregnancy was medically terminated. Reliance is placed on the DNA/FSL report concerning the foetal tissue. The State further points out that the trial is nearing conclusion. It also refers to the earlier bail order, which noted that the allegations, on the material then available, prima facie attracted the aggravated forms of penetrative sexual assault under Sections 5(j)(ii), 5(l) and 5(n) of the POCSO Act.

7. The Court has considered the submissions and examined the material placed on record.

8. At the outset, the successive nature of the present application cannot be overlooked. Kalyan Chandra Sarkar v. Rajesh Ranjan @ Pappu Yadav4 recognises that rejection of an earlier bail application does not bar a subsequent one, but the later application must ordinarily disclose a material change in the factual or legal position. Grounds already considered cannot be repeatedly re-agitated merely by filing successive applications.

9. On applying that principle, the principal grounds urged in the present application do not constitute a material change in circumstance. The victim had been examined in March 2025, her cross-examination stood concluded, and her non-opposition to the Applicant’s release was expressly noticed by the Special Court while rejecting the fourth bail application on 15th May, 2026. The further period of custody since that order is a relevant consideration, but it cannot be viewed in isolation, particularly when the trial is now stated to be nearing conclusion.

10. Even otherwise, the material presently before the Court does not persuade it to enlarge the Applicant on bail. Considerable reliance is placed on the victim’s deposition to emphasise that she did not attribute force, threat or coercion to the Applicant. That part of her testimony must certainly be noticed. At the same time, without entering into any assessment of its truth, reliability or ultimate evidentiary worth, the deposition cannot be read selectively. The victim speaks of sexual intercourse with the Applicant, who is her elder brother, on more than one occasion, and identifies him before the Trial Court. Thus, at least for the limited purpose of the present application, her testimony cannot be said to have displaced the prosecution case or rendered it inherently doubtful.

11. The further submission that the absence of force materially weakens the prosecution case also has to be examined in the statutory context. The prosecution relies upon the school record to contend that the victim was below eighteen years of age at the relevant time. Whether that age stands proved is, of course, a matter for trial. But if the prosecution establishes that she was a child within the meaning of the POCSO Act, the absence of force, or even factual willingness on her part, would not by itself take the alleged acts outside the statutory offence. The Applicant also fairly acknowledges this legal position in the present application. The victim’s account is therefore relevant, but it cannot, merely because it does not allege force or coercion, be treated at the bail stage as having substantially eroded the prosecution case.

12. There is then the scientific evidence. The charge-sheet records that an ultrasound examination disclosed a viable intrauterine pregnancy of approximately nineteen weeks; an MTP was subsequently performed and the 4 Kalyan Chandra Sarkar v. Rajesh Ranjan, (2005) 2 SCC 42

foetal tissue was preserved and forwarded for DNA examination. The FSL result, as reproduced in the charge-sheet, records that the DNA profiles generated from the victim and the Applicant were accounted for in the foetal sample and concludes that they were respectively the biological mother and father of the foetus.

13. This evidence is noticed only for the limited purpose of the present bail application. Its admissibility, proof and ultimate evidentiary value are matters for the Trial Court. But equally, the Court cannot, while considering bail, proceed as though this material does not exist. At this stage, it furnishes substantial prima facie support to the prosecution case.

14. The Court has also considered the victim’s request that the Applicant, her brother, be released, as well as her non-opposition to his earlier bail application. Her stated position is relevant and may deserve due weight, but it cannot be decisive. The allegations concern repeated sexual acts with a child within the immediate family, resulting in pregnancy. The statutory protection afforded to a child under the POCSO Act cannot be displaced merely because, at a later stage, she does not wish the Applicant to remain in custody.

15. It is true that the investigation is complete, the victim has been examined and the evidence is secured. These circumstances reduce the concern of interference with that part of the evidence. They do not, however, create an entitlement to bail by themselves. The Court must still consider the nature of the accusation, the supporting material, the severity of the offence, the period of custody and the stage of the trial.

16. The Applicant’s clean antecedents and the period already spent in custody have also been considered. Pre-trial detention is not punishment. At the same time, this is not a case where incarceration is accompanied by a trial with no end in sight. The trial is stated to be at its fag end. The gravity of the accusation, by itself, would not have been sufficient to refuse bail; here, however, it is accompanied by specific testimonial and scientific material which, at this stage, cannot be brushed aside.

17. On an overall consideration of the circumstances, and without expressing any final opinion on the evidence, the Court is not persuaded that a case for grant of regular bail is made out. The application is accordingly dismissed.

18. Since the Applicant has remained in custody for over two years and the trial is stated to be at an advanced stage, the Trial Court is requested to proceed with the remaining evidence and conclude the trial as expeditiously as possible, without granting unnecessary adjournments to either side.

19. It is clarified that the observations made above are confined to the consideration of the present bail application. The Trial Court shall decide the case independently, on the evidence led before it, uninfluenced by anything stated herein.

20. Pending application(s), if any, also stand disposed of.

SANJEEV NARULA, J SEPTEMBER 24, 2026 nk