Jagdish Nautiyal vs State
2012 Latest Caselaw 6809 Del

*             IN THE HIGH COURT OF DELHI AT NEW DELHI

+                         BAIL APPL. NO.1317/2012

                                  Date of Decision:   29.11.2012

         JAGDISH NAUTIYAL                ...... Petitioner
                        Through : Mr. K.K. Sud, Sr.
                        Advocate with Mr. Jayant
                        K. Sud, Mr. Vishal Dabas, Mr. Ujas
                        Kumar and Mr. Chirag Khurana,
                        Advocates.

                              Versus

              STATE                            ...... Respondent
                                Through: Mr. Sunil Sharma, APP


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

V.K. SHALI, J. (Oral)

1. This is a petition for grant of anticipatory bail in respect

of FIR no.67/2011, u/S 376/420/495 IPC registered by

PS Crime Against Women Cell, Nanakpura.

2. Briefly stated the facts of the prosecution case are that

on 15.9.2010, the complainant one Geeta, a permanent

resident of Dehradun filed a complaint in Crime Against

Women Cell, Nanakpura, New Delhi against the present

petitioner/Jagdish Nautiyal working as a Private

Secretary in the National Human Rights Commission. In

the said complaint, the complainant levelled allegations

that she was married to one Sushil Kumar in the year

1994 and from the said wedlock, she was blessed with a

daughter, who was born in December, 1995.

Unfortunately, the husband of the complainant Sushil

Kumar expired because of heart attack on 22.3.2010.

The present petitioner was on friendly terms with the

deceased husband of the complainant and he started

visiting the complainant. The present petitioner is

alleged to have made a proposal of marriage to the

complainant and stated that he was unmarried and he

would take care of the complainant as well as her

daughter. Believing the representation of the present

petitioner, the complainant is stated to have contracted

the marriage on 10.5.2010 in Buddhist Temple, Mandir

Marg, New Delhi near Birla Mandir as per Hindu Law.

Photographs and necessary documentations in this

regard were completed. After the marriage on 10.5.2010,

the petitioner applied for registration of the marriage on

17.5.2011 in the Marriage Registration Office, Dehradun

whereupon, he filled up the requisite forms in his own

handwriting and showed his status as unmarried. It is

alleged by the complainant that after the marriage, the

petitioner cohabited with the complainant. It is stated in

the complaint that on 4.6.2010, the complainant learnt

that the present petitioner was already married to one

Sunita and was living with her at the address mentioned

in the Memo of Parties. It is also stated by her that the

petitioner was having two children from the said

marriage. Because of these revelations, the complainant

confronted the petitioner, whereupon, the petitioner is

stated to have started abusing, misbehaving, threatening

the complainant to teach her a lesson. This resulted in

strained relationship between the present petitioner and

the complainant whereupon the present complaint was

filed by the complainant alleging that she had been

sexually exploited and her life has been spoiled by the

present petitioner by obtaining her consent for marriage

by misrepresentation. On the basis of the aforesaid

allegations, a case of rape, cheating and bigamy was

registered against the present petitioner.

3. The petitioner had earlier filed an application for grant of

anticipatory bail in the Court of Sessions which was

decided by the learned Sessions Judge on 29.8.12

holding that the allegations against the present petitioner

are serious and it is not a fit case for grant of

anticipatory bail.

4. Feeling aggrieved, the present petition for grant of

anticipatory bail has been filed in the High Court.

5. I have heard Mr.Sud, the learned senior counsel for the

petitioner as well as the learned APP. The private

counsel representing the complainant had also assisted

the learned APP.

6. The main contention of the learned senior counsel is that

the petitioner has been falsely implicated in the instant

case. It is stated that the petitioner and his wife were

the Members of a Yoga club where the complainant also

used to visit and she was aware of the fact that the

petitioner is a married person. It is denied by him that

the petitioner had contracted a marriage with the

complainant. It is stated by him that it was only a

friendly relationship between the petitioner and the

complainant. It is also stated by him that in a Buddhist

Mandir, no Hindu marriages can be contracted because

no formalities are required to be carried out as is

required to be done in an Arya Samaj Temple.

7. It is contended that the alleged incident is purported to

have taken place on 17.9.2010 while as, the present FIR

has been lodged on 15.9.2011 that is after more than a

year. It is contended in the status report filed before this

Court that the police has already seized the documents

required for the purpose of investigation, therefore, no

further custodial interrogation is required to be done. It

has also been submitted by him that the status report

filed by the police shows that there were certain

conversations going on between the petitioner and the

complainant on certain specified telephone numbers. In

order to show that the petitioner was not responsible for

making calls, the learned senior counsel has contended

that during the period from 01.5.2010 to 11.5.2010, the

complainant had made 165 calls to the petitioner and his

relations, the details of which have been furnished by

him by way of an affidavit which will clearly show that it

was the complainant who had been ringing up the

petitioner on various numbers. It is further stated by

him that the petitioner is prepared to join the

investigation. It has also been stated that the petitioner

has roots in the society and he is not going to run away

from the processes of law and no useful purpose would

be served by simply denying him the benefit of grant of

anticipatory bail.

8. The learned APP has vehemently opposed the application

for grant of anticipatory bail on the ground that the

allegations made against the present petitioner are very

serious in nature inasmuch as he has committed fraud

not only qua the complainant but also with his first wife

by concealing the fact that he was already married and

still he contracted the second marriage. It has also been

contended by him that custodial interrogation of the

petitioner is required to recover the telephone

instruments used in the conversations between the

petitioner and the complainant. It has been contended

by him that the consent which is purported to have been

given by the complainant in the present case for the

purpose of contracting marriage with the petitioner is not

consent because it was obtained by misrepresentation

inasmuch as the petitioner had represented himself to be

an unmarried person while as, he was actually a married

person. In this regard, the learned APP has also referred

to a judgment of the Apex Court in case titled Deelip

Singh @ Dilip Kumar Vs. State of Bihar (2005) 1 SCC

88 to contend that a consent which is obtained by

misrepresentation is not a consent at all.

9. The learned APP has also contended that the State has

already got non bailable warrants issued against the

petitioner and, therefore, the petitioner does not deserve

to be granted the benefit of anticipatory bail.

10. I have carefully considered the submissions made by the

respective sides.

11. No doubt, the allegations made against the petitioner are

very serious in nature but the severity of the allegations

is not the only consideration which should result in denial

or the grant of bail to the petitioner. The totality of

circumstances deserves to be seen before a person is

granted or denied the anticipatory bail. The Supreme

Court in case titled Siddharam Satlingappa Mhetre

Vs. State of Maharashtra (2011) 1 SCC 694 has laid

down that the Court should be loath to reject the grant of

anticipatory bail inasmuch as it impinges on the personal

liberty of a person. Meaning thereby, unless and until

there is an imminent and a great imperative to have a

custodial interrogation of an accused, the anticipatory

bail does not deserve to be denied. In the instant case,

assuming the allegations against the petitioner to be

correct, at best, a case of consent of the complainant for

contracting marriage having been obtained by fraud or

misrepresentation is made out. This fact does not

require any custodial interrogation because the

complainant herself has to testify before the Court as and

when the petitioner is put to trial as to whether her

consent was obtained by misrepresentation or fraud.

12. The contention of the learned APP that the telephone

instruments are required to be recovered also does not

convince me as being a 'sufficient ground' for denying

the grant of anticipatory bail to the petitioner. The

recovery of instrument is not an important matter. It is

not denied by either of the parties that conversations by

using certain telephone numbers were made between the

parties. This information has already been made

available or got recovered by the respondent from the

service provider. So much so, even the contents of the

conversations which have been exchanged between the

petitioner or his relatives with that of the complainant

has also been recovered, therefore, the recovery of the

instrument or the SIM number is of no consequence in

advancing the case of the prosecution. The custody of

the accused is not required to be granted to the police

only on the whims and fancies of the complainant to

satisfy her ego. In the instant case, the petitioner was

not granted any police protection for the last more than a

year and the police has not been able to arrest him till

date. This clearly shows some kind of complicity on the

part of the police in being loath in arresting the

petitioner.

13. It has been further contended by the learned APP that

the process under Section 82 Cr.P.C. has been issued

against the petitioner inasmuch as he has fled away from

the processes of law and, therefore, does not deserve to

be enlarged on bail.

14. I do not agree with this contention of the learned APP

that merely because process under Sections 82 and 83

Cr.P.C. has been issued against the accused that this

should be a sufficient ground for denying the grant of

anticipatory bail if it is otherwise made out. Every

reasonable person who has approached the Court for

grant of anticipatory bail will keep away from the

investigation for sometime so that his bail application

does not become infructuous.

15. In the instant case, the petitioner has been able to make

out a case for grant of anticipatory bail on account of the

fact that no recovery of any article is to be effected

inasmuch as this is a case where all the articles have

been seized by the police as per their status report. The

case of the prosecution is that the consent of the

complainant for the marriage was obtained by

misrepresentation and under the guise of the so-called

marriage or promise to marry the complainant was

sexually abused by the accused. This can be proved by

the complainant by entering into the witness box and it

also does not require any custodial interrogation and

consequent recovery of any object which is involved in

the instant case.

16. There are two more considerations which are being taken

into account for grant of anticipatory bail. Firstly, the

petitioner is admittedly employed in National Human

Rights Commission and has a fixed place of residence

and, therefore, there is no chance of his fleeing away

from the processes of law or in other words, he has

roots in the society.

17. So far as the allegations of the petitioner tampering with

the evidence or threatening the witness are concerned,

no doubt, a generalized statement has been made by the

complainant that she has been threatened by the

petitioner but she has not been able to show to the Court

any cogent and prima facie evidence which would show

that she has actually been threatened by the present

petitioner. In any case, this aspect of the matter can be

taken care of by putting a stringent condition on the

petitioner.

18. The learned APP during arguments has placed reliance on

the judgment of the Apex Court in Deelip Singh's case

(supra). I have considered the said judgment. No doubt,

the said judgment deals with the interpretation of the

word 'consent' holding that the consent obtained by

force, misrepresentation or fraud, will not be a valid

consent but in any case, the said judgment does not say

that a person who is accused of having committed the

offence of rape does not deserve to be enlarged on bail.

On the contrary, that was a case where the person

concerned was convicted and sentenced by the trial court

as well as by the High Court and he had preferred the

Special leave petition before the Apex Court. Therefore,

the factual matrix of the present case is totally different

from the facts of Deelip Singh's case. Accordingly, the

said judgment is distinguishable. Similarly, in other

judgment the custodial interrogation was required in the

peculiar facts of the case or that a person was declared

proclaimed offender does not ipso facto, imply that in all

cases where a person declared as a proclaimed offender,

the Court may not extend the benefit of anticipatory bail

to him. Both these submissions are turned down.

19. Having regard to the aforesaid facts, I am inclined to

admit the petitioner to the anticipatory bail on his

furnishing a personal bond in the sum of `50,000/- with

one surety of the like amount to the satisfaction of the

IO/SHO/AO, subject to the following conditions:-

(i) That the petitioner shall file an affidavit mentioning

therein all the documents/instruments as are required

by the police for the purpose of investigation have been

either surrendered by him and the petitioner shall make

himself available for the purpose of investigation on

04.12.2012 at 4.00 p.m. in the Crime against Women

Cell and on all other dates as may be fixed by the CWC

for investigation;

(ii) He shall not leave the National Capital Region of Delhi

without the permission of the trial court;

(iii) He shall not threaten the complainant and her

daughter by sending persons to the residence of the

complainant to terrorize her as she has testified against

him; and

(iv) He shall not tamper with the evidence.

20. It is made clear that in case these conditions are violated,

the complainant or the prosecutor shall be free to move an

appropriate application for revocation of the grant of bail

to the present petitioner.

21. Subject to the aforesaid conditions, the petition is allowed.

V.K. SHALI, J.

November 29, 2012 RN