Mahesh Makhija vs State (Nct Of Delhi)
2009 Latest Caselaw 3201 Del

*              THE HIGH COURT OF DELHI AT NEW DELHI

+                   BAIL APPLICATION NO.1236/2009

                                             Date of Decision : 17.8.2009

MAHESH MAKHIJA                                           ......Petitioner
                                  Through:       Nemo.

                                    Versus

STATE (NCT OF DELHI)                                  ...... Respondent
                                  Through:       Mr. Pawan Bahl, APP for
                                                 the State.

CORAM :
HON'BLE MR. JUSTICE V.K. SHALI

1.     Whether Reporters of local papers may be
       allowed to see the judgment?                         YES
2.     To be referred to the Reporter or not ?              NO
3.     Whether the judgment should be reported
       in the Digest ?                                      NO

V.K. SHALI, J. (Oral)

1. This is an application for grant of anticipatory bail by the

petitioner in respect of FIR No.159/2009 registered with

P.S. Harinagar u/S 325/376 IPC.

2. The allegations against the petitioner are that merely five

years back the petitioner who was known to the

complainant had administered some sedatives in a piece of

'Barfi' to the complainant as a consequent of which she fell

unconscious and fell down. It is alleged in the complaint

that the petitioner subjected the complainant to sexual

assault against her will and also made a CD of the

complainant in an objectionable manner. It is alleged that

the petitioner thereafter continued to physically abuse and

exploit the complainant by black mailing her and the

complainant with a view to avoid being ridiculed and

subjected herself to such a black-mail. It is also alleged

that the petitioner had taken a sum of Rs.1,48,000/- from

the complainant which she used to get by way of rent from

her tenants.

3. The complainant has also alleged that the petitioner on one

particular day threw contraceptive on her and on another

day smashed contraceptive which was full with semen on

her body. On the basis of these allegations, the aforesaid

FIR is registered against the petitioner on 23.5.2009.

4. I have heard the learned counsel for the petitioner as well

as the learned APP for the State and have gone through the

record. The learned counsel for the petitioner has

contended that the complaint which has been lodged by the

complainant making serious allegations of sexual assault is

as a matter of fact totally false and frivolous and is

actuated by ulterior considerations. It was urged by him

that the falsity of the charges levelled by the complainant in

the FIR is fortified from the fact that she remained silent for

as long as five years and did not care to disclose the said

fact to her husband even. It is also contended by the

learned counsel for the petitioner that the petitioner as a

matter of fact is a married person and does not have any

issue but both the family of the petitioners and the family

of the complainant were known to each other for quite

some time as they were living in the same locality and it

was agreed by the petitioners that they would adopt a

female child from the wedlock of the complainant and since

this was not done by the petitioner, therefore, as a matter

of reprisal, the complainant got the present false FIR

registered against the petitioner. It was contended by the

learned counsel for the petitioner that the falsity of the

allegations leveled by the complainant would be apparent

from the fact that although the FIR has been lodged in

2009 on 23rd May, 2009 but around the same time and

even after that she has been visiting and participating in

various functions of the petitioner which is totally

unnatural conduct on her part.

5. It was contended that the petitioner is already enjoying the

interim protection against arrest and he has already been

called by the local police and joined investigation. He is

further prepared to subject himself to such conditions as

this Court may like to impose while granting the

anticipatory bail to the petitioner.

6. Both the counsel for the complainant as well as learned

APP have contested the submissions made by the learned

counsel for the petitioner. It has been denied that this is a

false and a concocted story which has been lodged by the

complainant with the police. As a matter of fact, the

learned counsel for the complainant has contended that

despite the case pending in Court, the petitioner has

administered threats to the complainant for which purpose

she has lodged a complaint with the local police as late as

on 14.8.2009. It was also denied by the learned counsel for

the complainant that the present complaint has been

lodged as a measure of reprisal against the petitioner for

not having adopted her daughter.

7. So far as delay in lodging the complaint with the police

both initially as well as the one which has taken place after

lodging of the complaint are concerned that is being

justified by the fact that the initial complaint got delayed

because the complainant was being black mailed by the

petitioner on account of CD having been prepared by the

petitioner of the complainant in an objectionable manner

which was being used as a threat to defame her in the

society. As regards the delay of 12-13 days from the date of

lodging the complaint and registration of FIR is concerned,

the learned APP tried to explain the same that since there

was an initial delay, therefore, the facts had to be verified

and brought to the notice of superior Officers before acting

on the basis of the same.

8. I have carefully considered the submissions made before

this Court and have gone through the judgments relied

upon by the learned counsel for the petitioner given by

HMJ Shiv Narayan Dhingra in case titled Brij Mohan

Verma Vs. State (NCT of Delhi) 2008 (2) JCC 931. So far

as the bail having been granted in the facts of those cases

is concerned, that would not be a ground for enlarging the

petitioner on bail. There is no proposition of law laid down

that in case there is a delay in lodging the FIR in respect of

offence under Section 376 IPC and the delay is sought to be

explained by giving the explanation that earlier the FIR

could not be lodged as she was subjected to blackmail still

the petitioner would be entitled to bail.

9. In the instant case, the delay may be on account of various

reasons but that will be explained only during the course of

appreciation of evidence when the case is being disposed of

finally. No doubt there is a delay in the instant case which

is to the tune of five years initially but there is a specific

averment in the complaint that the petitioner had prepared

a CD of the complainant. It is prima facie reasonable to

believe that any woman placed in such a contingency

would avoid lodging a complaint for being fearful of being

exposed and ridiculed in the society to that extent the delay

may not be a ground for enlarging the appellant on grant

of anticipatory bail.

9. So far as the second contingency of delay of 12 days from

the date of lodging the complaint and the registration of the

FIR is concerned, that is equally not fatal as it is sought to

be explained by the learned APP by giving various steps

which were initiated by the local police before initial

registration of the offence so as to ensure that there is no

false implication.

10. As regard the plea of the petitioner that the complaint is

actuated by ulterior considerations to secure revenge on

account of non-adoption of the female child of the

complainant. It can at best be a defence of the petitioner

but certainly it will not be a ground where the complainant

would risk her own character to be ridiculed by making

false allegations of being subjected to sexual assault by a

person. Therefore, this question can be decided and

appreciated only after the petitioner has adduced his side

of story of evidence before the Trial Court.

11. The investigations are still on and since there are

allegations against the petitioner having prepared a CD of

the petitioner in an objectionable manner which constitutes

a very serious allegation qua the petitioner, therefore, apart

from the fact that there were allegations of rape, I feel the

totality of circumstances constitute prima facie very serious

allegations against the petitioner which do not entitle him

to be enlarged on anticipatory bail.

12. For the reasons mentioned above, the application or grant

of anticipatory bail is dismissed. The interim protection

granted to the petitioner on the first date of hearing i.e.

22.6.2009 stands vacated.

V.K. SHALI, J.

AUGUST 17, 2009 RN