Nirmal Vaid vs State Nct Of Delhi
2013 Latest Caselaw 91 Del

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*      IN THE HIGH COURT OF DELHI AT NEW DELHI
+      BAIL APPLN. 1760/2012
       NIRMAL VAID                       ..... Petitioner
                             Through Mr. N. Hariharan, Mr. Utkarash and
                                        Mr. Dharmender, Advs.
                    versus


       STATE NCT OF DELHI                         ..... Respondent
                             Through Mr. Navin Sharma, APP for the
                                        State.
                                        Complainant in person.

       CORAM:
       HON'BLE MR. JUSTICE KAILASH GAMBHIR
           ORDER

%           07.01.2013

Crl.M.A. No. 19679/2012

       Allowed subject to all just exceptions.

       The application stands disposed of.

BAIL APPLN. 1760/2012

By this petition moved under Section 438 Cr.P.C. the petitioner

seeks grant of anticipatory bail.

As per the allegations leveled by the prosecutrix in the FIR the

present petitioner happens to be the father of one of the prosecutrix's

student, who used to visit her studio almost daily to pick his son from

the dance class. It is further alleged that the petitioner representing

himself to be an event Manager, Film & TV show producer and Media

coordinator assured the prosecutrix that he will give her a break in his

film/serial as a choreographer and thereafter she started believing him.

The complainant has further alleged that she started hanging out with

the petitioner and in due course of time the petitioner got to know that

the complainant was having a strained relationship with her husband

and also her in-laws. It is further alleged that having come to know

about the aforesaid fact, the petitioner started convincing her that he

needs emotional support from her as his wife does not love him. As per

the prosecutrix, the petitioner represented that he would seek divorce

from his wife and similarly she also take divorce from her husband and

thereafter they would marry each other. It is also the case of the

complainant that thereafter she started believing in him blindly and on

10th June, 2009 at around 9.30 to 10.00 p.m., while she was preparing

to leave from her dance studio for her home, the petitioner entered the

studio with a soft drink bottle and offered it to her. It is alleged in the

FIR that after consuming the drink she became unconscious. It is the

case of the prosecturix that in the said condition the petitioner raped

her forcibly without her consent and it is only when she re-gained her

consciousness at about 3.00 a.m. and when she started lamenting

bitterly, the petitioner started consoling her and repeated his promise

that he will marry her and believing in such assurance given by him,

the prosecutrix did not report the said incident to the police. It is also

the case of the prosecutrix that he called her at 51, Jagriti Enclave

Extn. and repeated the same act on false promise of marriage on 17 th

August, 2010 and this act was again repeated on 10 th October, 2010. It

is also the case of the prosecutrix that on 7th March, 2010 the petitioner

took her with him for his upcoming movie to be shot in Dehradun

where on 7th May, 2012 he forced her to make sexual relationship with

him against her will with false promise of marriage. Then on 13th July,

2012 to 15th July, 2012 the petitioner again took her to Rajasthan for

the event of shoot of a documentary on Swami Narayan Dass and

again committed rape on her without her consent. In September, 2012

when the complainant asked him to take her to his house then he

started avoiding her and making false pretentions so as to linger on the

matter.

It is in this background that the complainant has alleged that her

patience and tolerance level had crossed all barriers and reported the

matter to the police. The complainant has also alleged that there is

threat to her life and limb and if anything happens to her and her

family members, it would the petitioner and his acquaintances who

would be held responsible.

Addressing the arguments on behalf of the petitioner, Mr. N.

Hariharan, Advocate submits that the petitioner has been falsely

implicated by the complainant in order to extract money from him.

Counsel further submits that the petitioner as well as the complainant

are married persons and both of them are having strained marital

relationship with their respective spouses. Counsel further submits that

the petitioner is about 54 years of age having a son of 21 years of age

and daughter of 18 years of age and has clean antecedents. Counsel

also submits that the petitioner has never extended any promise of

marrying the prosecutrix and this is apparent from the fact that neither

the petitioner nor the respondent has taken any steps to seek dissolution

of their marriage from their existing spouse. Counsel also submits that

the NBW issued against the petitioner has already been stayed by the

learned Trial Court.

Present application has been strongly opposed by Mr. Navin

Sharma, APP for the State. Mr. Sharma submits that there are very

serious allegations leveled by the prosecutrix against the petitioner,

who has been exploiting the complainant on the false promise of

marrying her. This application has also been opposed by the

complainant/prosecutrix, who is present in Court. She submits that she

would not have permitted the petitioner to have sexual relationship

with her without the said promise of marriage being extended by the

petitioner.

I have heard counsel for the petitioner, Mr. Navin Sharma, APP

for the State and the prosecutrix present in Court.

Rape is one of the most barbaric and heinous crimes not only

against the victim of the rape but also against the society as a whole.

The cases of rape, gang rape and digital rape are on increase and

perpetrators of this inhuman and brutal crime are worse than even the

beasts and deserve to be dealt with a heavy hand. The entire country is

seriously debating this issue and there are proposals coming forth that

death penalty should be the answer to deal with the accused involved

in such heinous crime. Having said this, I am also constrained to

observe here that no one should be allowed to trivialise the gravity of

offence by misusing the same as a weapon for vengeance or vendetta.

The case in hand is a strange case where the complainant, who is

a married lady having a daughter of 11years, has leveled serious

allegations of the petitioner raping her time and again for the past three

years. It is an undeniable fact that the complainant and also the

petitioner are having strained relationship with their respective spouses

and both of them have not taken any re-course to seek divorce from

their respective spouses. With the provision envisaged under Section

90 of the IPC with respect to 'Consent', it is not expected of the

complainant, who appears to be a well enlightened lady running a

dance studio, to submit herself to have sexual relationship with the

petitioner just on the alleged promise of marriage made by the

petitioner that too not in Delhi alone but also at Jaipur and Dehradun

where she had accompanied the petitioner.

Taking into consideration the facts of the present case, this court

is of the view that the petitioner deserves grant of anticipatory bail.

Accordingly, in the event of arrest, the petitioner shall be

released on bail subject to furnishing of his personal bonds in the sum

of Rs. 15,000 with one surety of the like amount to the satisfaction of

the arresting officer. The petitioner shall also fully cooperate in

investigation and will not create any hindrance or impediment during

the course of investigation. The petitioner shall also not take any action

to intimidate or cause any sort of harm to the complainant or her

daughter.

The petition stands disposed of accordingly.

KAILASH GAMBHIR, J JANUARY 07, 2013