Father Allegedly Sexually Assaults Daughter, Delhi HC Declines Anticipatory Bail

The Court held that the bar under sub-section 4 of Section 438 would operate in the case and bail plea was liable to be dismissed.

The Delhi High Court, on August 5, dismissed anticipatory bail application of an accused under Section 377 of the Indian Penal Code (IPC) and Section 6 of the Protection of Children From Sexual Offences Act (POCSO). Section 376 AB also came to added to the FIR.


Complainant (wife of petitioner) in her complaint stated that her husband (Petitioner herein) had inserted his genitals in the mouth of their daughter. On the basis of this, an FIR came to be lodged.

The statement of the victim was recorded under Section 164 Cr.P.C. 

The application for anticipatory bail under Section 438 was declined by the Additional Sessions Judge in view of the bar under sub-section 4 of Section 438.


Advocates Manoj D Taneja and Dhruv Bhagat appeared on behalf of the petitioner and submitted that the petitioner and the complainant had a set of litigations prior to the lodging of the present FIR. 

It was further contended that Section 376AB was wrongly invoked by the Investigating Agency during the course of trial. 

It was also argued that the Additional Sessions Judge incorrectly inferred that the application for anticipatory bail was barred under Section 438 of Cr.P.C. He made reference to Section 42 of POCSO Act, Section 376, 376AB IPC.

It was further submitted that the amendment incorporating sub-Section (4) of Section 438 Cr.P.C., did not intentionally incorporate Section 6 of POCSO Act within its ambit and as such application for anticipatory bail was not barred under Section 438 Cr.P.C.  It was pointed out that all the amendments had been brought into effect simultaneously in 2018.

It was argued that the incident was false and fabricated and the FIR was lodged to settle scores.

Additional Public Prosecutor Aman Usman appeared on behalf of the State and argued, apart from the factual arguments, that the petition was not maintainable in view of the bar that operated due to the 2018 amendment.


Justice Anoop Kumar Mendiratta observed that, “Criminal Law Amendment Act, 2018 was brought for the protection of girls from heinous crime of rape and to save the woman from the horrifying state of sexual assault.  Correspondingly, the amendment was also brought in other sections relating to Indian Penal Code, Code of Criminal Procedure, Indian Evidence Act, 1872, Section 438 and Section 439 of Cr.P.C. alongwith changes in Section 42 of POCSO Act dealing with the alternative punishment.

The changes in the penal laws were provided specifically for the welfare of the women and children, keeping in view the rising crime rate and to provide for a deterrent punishment. Sub-section (4) of Section 438 Cr.P.C. was inserted vide Criminal Amendment Act, 2018 and provides that nothing in this section shall apply to any case involving the arrest of any person on accusation of having committed an offence under sub section (3) of Section 376 or Section 376AB or Section 376DA or Section 376DB of the Indian Penal Code, 1860,” the Court observed.

The Court emphasised that, “It cannot be inferred that the rigor of sub-Section (4) of Section 438 Cr.P.C. stands obliterated at the stage of bail since offender stands charged with both Section 376AB IPC as well as Section 6 of POCSO Act and may be punished on conviction under Section 6 of POCSO Act instead of Section 376AB IPC. The purpose of Section 42 is to ensure that an act constituting offence under two different enactments does not lead to double punishment for the same act constituting an offence.”


The anticipatory bail application was rejected as no grounds were made out for grant of bail.

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