On 5th October, a bench of the Delhi High Court consisting of Justice Subramoniam Prasad, held that arrest should be the last option and it should be restricted to those exceptional cases where arresting the accused is imperative in the facts and circumstances of that case. This cannot be applied when the accused does not co-operate with the investigation and does not provide information which will lead to the discovery of material facts. For this purpose, it may be necessary to curtail the freedom of the accused to enable the investigation to proceed without hindrance.
Facts of the case:
The present petition under Section 438 Cr.P.C was for the grant of bail to the petitioner in the event of arrest in FIR registered at Police Station Civil Lines for offences under Sections 376/506 IPC. In the petition, it is contended that the petitioner conducts a chit fund business and the husband of the victim was a member of the chit business. It is stated that the husband of the prosecutrix has given a cheque of Rs.10,00,000/- to the petitioner and that the petitioner herein offered her beer and they were driving for some time. After a while the petitioner took the prosecutrix to Bonta Park and parked the car outside the park and forcefully made physical relations with the prosecutrix. It is stated the prosecutrix could not protest because she was feeling dizzy after consuming beer and after the incident the petitioner dropped the prosecutrix to her house and showed her obscene photos, that he had clicked on his phone and threatened the prosecutrix that if she told anyone about the incident, he would send the pictures to her husband and would circulate them in the market as well. In the bail application it is contended that the instant FIR was lodged just to put pressure on the petitioner so that he could not encash the said cheque.
Contention of the petitioner:
Mr. Sanjay Vashistha, learned counsel for the petitioner, contended the following:
- It is submitted that that the husband of the prosecutrix was part of the kitty/ Committee run by the petitioner and the petitioner has given a sum of Rs.10,00,000/- to the husband of the prosecutrix. He, therefore, states that the present FIR is only a measure to force the petitioner not to encash the said cheque.
- He further stated that the allegation of rape dates back to September 2019, however, no complaint was filed by the prosecutrix then. He states that the complaint is so timed that it has been filed exactly two days before the date of encashment of cheque given by the husband of the prosecutrix.
- Lastly it was submitted that the instant case is completely false and has been filed with mala fide intent to pressurize the petitioner not to encash the said cheque.
Contention of the respondent:
Ms. Kusum Dhalla, learned APP for the State, vehemently opposed the instant bail application by contending that the petitioner was accused of a very heinous crime punishable under Section 376 IPC. She stated that there are allegations that the petitioner is threatening the prosecutrix. She further stated that even after getting protection from this Court, the petitioner is not co-operating with the investigation. She, therefore, contended that anticipatory bail should not be granted to the petitioner.
Observation and judgement of the court:
The hon'ble bench of the court observed the following:
- The material on record shows that the petitioner was called by the Investigating Officer on 08.07.2021, but he did not come citing some family contingencies and said that he would join the investigation on 09.07.2021.
- It was observed that the petitioner has not been co-operating with the investigation at all. It was also observed that he has not submitted the details of kitty/Committee as well as his ledger register to the Investigating Officer.
- The petitioner herein has also not revealed as to what the amount was due and payable by the husband of the prosecutrix and against what amount the cheques had been given by the husband of the prosecutrix.
- The petitioner is accused of a serious offence of rape. The petitioner does not stay in Delhi. The apprehension of the petitioner fleeing from justice cannot be ruled out at this juncture. Grant of protection from arrest does not give a passport to the accused to not cooperate with the interrogation.
Thus the court after looking at the facts of the case held that petitioner is in a position to threaten/intimidate the prosecutrix and hence dismissed the bail application.
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Picture Source : https://pixabay.com/photos/police-handcuffs-arrest-detention-2122373/
