Karan Girotra vs State & Anr.
2012 Latest Caselaw 3041 Del

*          IN THE HIGH COURT OF DELHI AT NEW DELHI

+                BAIL APPN. 977/2011

                                  Date of Decision : 08.05.2012

KARAN GIROTRA                                    ...... Petitioner
                                  Through: Mr. Samrat Nigam, Adv.

                                   Versus

STATE & ANR.                                ...... Respondents
                                  Through: Mr.Sunil Sharma, APP
                                           Mr. V.K.Shukla, Adv. for
                                           the complainant

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

V.K. SHALI, J.

1. This is an application filed by the petitioner, Karan

Girotra for the grant of anticipatory bail in respect of FIR

No.262/2011 under Sections 376/328 IPC read with

Section 66-A of the Information Technology Act

registered by PS:Prashant Vihar, Delhi.

2. Briefly stated, the facts of the case are that Shivani

Saxena, D/o Sudhir Saxena had lodged a complaint with

the Police that she had married to Ishan on 25.9.2009,

however, the marriage between them failed within a few

days as her husband, Ishan could not consummate the

marriage. Both of them started living separately w.e.f.

1.10.2009 and it was amicably settled between them

that after the expiry of one year of their marriage, both

of them will file a joint petition, on mutual consent, for

the grant of divorce, after which both the parties will be

free to marry afresh.

3. It is further alleged by her that in the course of chatting

on the internet, she had come in contact with one Karan

Girotra about six years back from the date of the lodging

of the complaint. On 3.4.2010, the petitioner is alleged to

have told her that he had fallen in love with her and

wants to marry her. On this, she allegedly told him that

she is already married, whereupon the petitioner said

that he would marry her after her divorce. On 15.5.2010,

it is alleged that on the pretext of introducing the

complainant to his family members, the petitioner called

her to his house, that is, Flat No.11, Rama Krishan

Apartment, Sector-IX, Rohini, Delhi where she found that

there was nobody except his old bed-ridden maternal

grandmother. It is alleged by her that, at about 8:00

P.M., the petitioner gave her soft drink, which was

perhaps laced with some intoxicant and on consuming

the same, she became unconscious. It is stated that

when she regained her consciousness at about 10:00

P.M., she found herself completely nude and she also

noticed that she had been sexually assaulted. On

noticing this, she started crying and she was consoled by

the petitioner that she need not worry, as he would fulfill

the commitment of marrying her. On 16.5.2010, she was

shocked when she received her obscene pictures of the

previous night. She confronted the petitioner with the

said pictures, whereupon the petitioner represented to

her that she need not worry about this and he is going to

marry her. It has also been alleged that the petitioner

threatened to circulate the objectionable pictures

everywhere if she did not keep on maintaining physical

relations with him. On the basis of this blackmail, she

alleged that she was raped again on 18.5.2010.

Subsequent thereto, on 9.7.2010, it is stated that a roka

ceremony was held between the petitioner and the

complainant at the restaurant, Pind Baluchi in Pitam

Pura, Delhi, where the mother of the complainant gifted

the petitioner a santro car, jewellery, clothes and various

other gift items. It has been alleged that the petitioner

kept on sexually assaulting the complainant without her

consent and on 12.9.2010, the petitioner informed the

complainant's mother that he is breaking the

engagement and he returned the car and the other

articles, whereupon the complainant lodged a complaint

in the month of June and the aforesaid FIR under

Sections 328/376 IPC read with Section 66-A of the I.T.

Act was registered by PS: Prashant Vihar, Delhi against

the petitioner.

4. During the course of investigation, the Prosecutrix,

Shivani Saxena was medically examined from Dr. B.S.A.

Hospital on 7.6.2011. The statements of Vivek, her

cousin and Madhu Saxena, her mother have also been

recorded. A mobile phone with a SIM, which was

allegedly used by the petitioner, was stated to have been

returned to the Samsumg company by the petitioner.

Subsequent inquiries made have not been able to yield

any fruitful result of the recovery of the mobile phone,

but evidence has been gathered that the petitioner had

sent two messages from his mobile, the details of which

are given in the Forensic Science Laboratory Report (FSL)

dated 17.1.2012. It may be pertinent to mention here

that the FSL Report, contains the messages purported to

have been sent from the phone of the petitioner. This

report is prima facie admissible, under Section 293 of the

Cr.P.C.

5. I have heard the learned counsel for the petitioner, Mr.

Samrat K. Nigam as well as Mr. V.K. Shukla, the learned

counsel for the complainant.

6. The learned counsel for the petitioner has punched holes

in the Prosecution story of the alleged rape and the

blackmail. In this regard, he has stated that when the

roka ceremony between the petitioner and the

complainant had taken place on 9.7.2010, the fact that

the complainant was having a failed marriage in

existence with Ishan, was not disclosed to him and it was

because of this reason that the marriage ceremony

between the two parties was called off. It has also been

stated by him that the allegation of the complainant that

she was subjected to sexual assault by the petitioner is

totally unbelievable and false. As a matter of fact,

whatever physical relations were established by the

petitioner with the complainant, the same were with her

consent and it is only subsequent to the calling off of the

roka ceremony/marriage ceremony, and that too

belatedly after the expiry of more than six months,

wisdom had dawned on her to lodge this false and

frivolous allegation of rape. It has also been denied by

the petitioner that any photographs of the complainant,

in any objectionable manner, were taken or that they

were circulated by him either to the complainant or to

any other persons, including Ishan.

7. The learned counsel for the petitioner has drawn the

attention of the Court to the complaint made by the

petitioner to the Police Station (South-West District),

whereupon an inquiry was conducted by the Police and

they had made certain observations regarding the

conduct of the learned counsel, Mr. V.K. Shukla, being

allegedly a part of the gang, consisting of the

complainant and her mother, who were indulging in such

nefarious activities, firstly inducing the innocent persons

into establishing a matrimonial alliance with the

complainant and thereafter backing out of the same and

using the said alliance with the false allegation of having

physical relation for the purpose of blackmail. It has also

been contended by the learned counsel for the petitioner

that the complainant is a girl whose statement cannot be

relied upon safely because of her background. This

background is that firstly, she got married to Ishan and

did not disclose this fact to the petitioner before the 'roka

ceremony'. Thereafter, she continued to have physical

relations, though allegedly under threat, and later on

lodged a report belatedly. Therefore, it was contended

that her story cannot be accepted as gospel truth so as

to deny anticipatory bail to the petitioner.

8. As against this, the learned counsel for the complainant

has vehemently contested the submissions made by the

learned counsel for the petitioner. He has contended that

it is a case of not only rape, where the consent was

obtained by the petitioner under misrepresentation of

trying to solemnize the marriage with her, but it also

entails investigation of the matter in respect of taking

obscene and objectionable pictures of the complainant

and thereafter circulating the same. It is this latter part

of the allegation which he says needs to be investigated

by the Police, as the petitioner had deliberately tried to

create hurdles in the investigation of this matter.

9. It has also been stated that the petitioner had wrongly

stated that he had surrendered the Mobile to the

Samsung company from which the obscene pictures were

sent.

10. I have carefully considered the submissions made by the

learned counsel and gone through the record, including

the Police Inquiry Report.

11. At the outset, it must be submitted that Mr. Samrat

Nigam, the learned counsel appearing for the petitioner

has very ably argued the matter and tried to make out a

very good case for the grant of anticipatory bail by

showing that the conduct of the respondent/ complainant

herself is not very straight forward and truthful. Three

facts are very essential in this regard which have been

brought to the notice of the Court. The first is that the

complainant had not allegedly disclosed the factum of her

previous marriage to the petitioner. Though the case of

the complainant is that the factum of marriage was

known to the petitioner, but this allegation of the

petitioner, being aware of the factum of marriage, is not

believable on account of the fact that if this would have

been true, then the petitioner would not have gone in for

roka ceremony. The second aspect is with regard to the

delay in lodging the FIR. The complainant had admittedly

lodged the FIR after expiry of more than six months from

the last alleged incident and thirdly, that the complainant

apparently seems to be a consenting party to the sexual

intercourse with the petitioner and it is only when the

entire plan of the complainant to get married to the

petitioner had fallen apart that she turned around and

seemed to have lodged the complaint of rape. But,

nevertheless, the allegations against the petitioner and

the severity of the charges against him does not get

lessened by these facts which are ultimately to be

adjudicated at the stage of trial, so far as its correctness

is concerned. But there is one more fact which dissuades

the Court in extending the benefit of anticipatory bail to

the petitioner and this is taking of the nude and obscene

photographs of the complainant by the petitioner and

then the transmission of the same. Though the petitioner

has denied the factum of transmission of these obscene

material to any person, much less to the complainant

herself and he has taken the plea that the phone, from

which the alleged photographs are purported to have

been taken, has been surrendered by him to Samsung

Company but certain evidence has been gathered by the

Investigating Agency which attributes that certain

messages have been sent from the phone of the

petitioner to the previous husband of the complainant.

This part of the allegation would certainly require

custodial interrogation. Nobody should be permitted to

blackmail a woman by taking her nude photographs.

Therefore, this aspect of the matter adds a great deal of

twist to the facts of the Prosecution's case and I feel that

this fact aggravates the severity of charges against the

petitioner which dissuades the Court to exercise the

discretion of grant of anticipatory bail in favour of the

petitioner.

12. So far as the other two considerations, namely, the

petitioner's fleeing away from the processes of law or not

being available to face the trial is concerned, neither any

apprehension in this regard has been expressed by the

Investigating Agency nor there is any such fact which

could be made a basis to assume that the petitioner will

flee away from the processes of the law. Therefore, so

far as this aspect of the matter is concerned, it can

certainly be considered in favour of the petitioner.

13. The last consideration, which normally is taken into

consideration while examining the grant of benefit of bail

to a party is whether he will tamper with the evidence or

not. So far as the question of tampering with the

evidence in the instant case is concerned, I feel that the

petitioner hardly has an opportunity now to tamper with

the evidence, inasmuch as the case has become old and

whatever electronic evidence was available, that seems

to have been destroyed by the petitioner as he had

ample time and opportunity for the same, nevertheless

at the same time, the matter is of such a nature which

needs interrogation custodial or otherwise of the

petitioner as regards the allegation of his having taken

the photographs of the complainant and then circulating

the same not only to the complainant but also to her

previous husband. In this regard, I feel that this

consideration goes against the petitioner.

14. The learned counsel for the petitioner has drawn the

attention of the Court to the observations made by the

Police in the Inquiry Report to show the alleged unholy

nexus between the mother, daughter and the counsel,

making an allegation that the counsel was trying to

blackmail the innocent persons by inducing them into

alliance. Certainly, this is a very disparaging remark on

the conduct of the counsel. In this regard, I have gone

through the Report and I agree with the contention of the

learned counsel for the petitioner that the remarks,

which have been made by the Police in the Inquiry

Report are certainly a serious reflection on the conduct of

the learned counsel and it seems that these observations

are very pertinent which also need to be inquired into as

to whether the learned counsel who was representing the

complainant was remaining within the four walls of the

law or was exceeding his limits so as to be a part of

something which is not permissible for an Advocate

which need not tread on. I do not think that it is for this

Court to comment on the conduct of the counsel in this

regard except to take the note of the same.

15. It may also be pertinent that the learned counsel for the

complainant had referred to a judgment, reported as

State of Maharashtra and Anr. -vs- Mohd. Sajid Hussain

Mohd. S. Husain and Ors., (2008) 1 SCC 213 wherein the

Court had observed that cases involving serious offences,

such as one punishable under Section 376, IPC, should

be allowed to be fully investigated. I have gone through

the said judgment. There is no dispute about the fact

that the cases involving serious offences, such as one

punishable under Section 376, IPC, deserves to be

allowed to be fully investigated. But the facts of the said

case were totally different from the facts of the present

case, as in the reported case, there was an allegation of

the girl being lured into immortal trafficking, while as in

the instant case, there is no such allegation, but on the

contrary, there are allegations of consensual sex having

been indulged into by the petitioner which has

subsequently been given the colour of the blackmail and

it is only because of the two SMSs which have been

brought by the Police on record which have emanated

from the phone pertaining to the petitioner, which have

persuaded the Court to draw an inference against the

petitioner and denying him the benefit of bail.

16. Having regard to the aforesaid facts and the totality of

the circumstances, I feel that this is not a fit case where

the petitioner deserves to be granted the benefit of

anticipatory bail. Accordingly, the interim order dated

20.7.2011, by virtue of which the petitioner was

restrained to be arrested by the Investigating Agency is

recalled and the petition for the grant of the anticipatory

bail is dismissed.

17. Expression of any opinion hereinbefore may not be

treated as an expression on the merit of the case.

V.K. SHALI, J.

MAY 08, 2012 tp