Ms. X vs State Of Nct Of Delhi & Anr
2015 Latest Caselaw 4460 Del

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*       IN THE HIGH COURT OF DELHI AT NEW DELHI
21.
+       CRL.M.C. 2521/2015 & CRL.M.A. No. 8768/2015 (for stay)
        Ms. X                                           ..... Petitioner
                         Through: Mr. Sidharth Luthra and Mr. Kirti
                         Uppal, Senior Advocates with Mr. Ashok
                         Nijhawan, Mr. Arun Batta, Mr. Arun
                         Trehan, Mr. Shivek Trehan and Mr. Pratik
                         Batta, Advocates.


                         versus

        STATE OF NCT OF DELHI & ANR.          ..... Respondents
                      Through: Mr. Navin Sharma, APP for State
                      with Inspector Ved Prakash, SHO PS
                      Nizamuddin.
                      Mr. Aditya Wadhwa, Advocate for
                      Respondent No.2.
         CORAM: JUSTICE S. MURALIDHAR

                         ORDER

% 11.06.2015

1. This is a petition seeking cancellation of the bail granted to the

accused (Respondent No.2 ) in FIR No. 374/2015 registered at Police

Station Hazrat Nizamuddin under Sections 452/308/354/323 IPC by

the learned Additional Sessions Judge („ASJ‟), Saket, District West by

an order dated 5th June 2015.

2. The Petitioner is the Complainant who happens to be a practising

lawyer residing in a house in Jangpura Extension for the past two

years. On her complaint, an FIR was registered on 28 th May 2015

wherein she stated that on 27th May 2015 at around 8.30 to 9 pm while

she was listening to music on earphones and surfing internet on her

mobile while lying on bed, "one identified boy entered my premises"

and hit her on the head several times with a rod, which he was

carrying. She became unconscious briefly. When she regained

consciousness, she could "hear sound of hitting" and even her phone

battery had been damaged. The accused had torn her shirt. As he was

coming closer to her, she shouted for help. After the landlord residing

on the third floor came out and shouted, the accused fled from the

spot. The Petitioner stated in her complaint that "I can identify the

person if I see him".

3. As it transpired, the Respondent No.2/accused was arrested by the

police at around 9 pm on 28th May 2015. It is now seen that the

accused resides in Church Road which is different from Church Lane

where the building in which the Petitioner resides/is located. This is

significant because in his application for regular bail before the

learned ASJ Respondent No. 2 inter alia stated in para 3 that he is the

"owner of the aforesaid house" at Church Lane. Mr. Aditya Wadhwa,

learned counsel for Respondent No.2 candidly stated that the aforesaid

statement was admittedly erroneous, as the house where the Petitioner

resides is owned by his aunt and Respondent No.2 claims to frequently

visit his aunt. In other words, the aunt of the accused is the landlady of

the Petitioner.

4. The serious issue that arises is that impugned order of the learned

ASJ erroneously records that "as per the medical report no head injury

was found present on the body of the victim." The Court has been

shown the MLC of the Petitioner, prepared at AIIMS, which notes the

following four injuries on her person on 28th May 2015:

(i) fresh sutured wound left parietal region

(ii) abrasion left forearm.

(iii) bruise right shoulder, right popliteal fossa and lower thigh

(iv) swelling over left eyebrow.

5. Further the Court is informed by the learned APP that the records of

Jeevan Hospital where the Petitioner first underwent treatment have

been collected. It shows that she received as many as ten stitches on

her scalp. The photographs placed on record in the present petition

also bear out this submission.

6. Clearly, therefore, the learned ASJ was totally in error in observing

that "as per the medical report no head injury was found present on the

body of the victim."

7. The Petitioner wrote to the SHO on 29th May 2015 pointing out that

a case was made out for addition of Section 376 read with Sections

511, 354-B, 325 and 326 IPC. The learned APP informs the Court that

although initially FIR was registered under Sections 452/308/354/323

IPC subsequently Section 354-B IPC, which is a serious offence, has

been added. He states that a decision will be soon taken on adding

further sections of the IPC.

8. Mr. Wadhwa pleaded that the manner of identification of the

accused by the Complainant was unknown to law since some

photographs of suspects were sent to her by the police on „Whatsapp‟

and she identified the accused from those photographs.

9. The Court notes that in her complaint, the Petitioner stated that "one

identified person" had attacked her. Further, she volunteered to

identify the person if she saw him. In the circumstances, the Court

does not prima facie find any irregularity in the police having adopted

the aforementioned method for getting the Complainant to identify the

assailant. She was at the relevant time obviously in a traumatised,

injured condition and this was perhaps the most efficacious way of

zeroing in on the culprit. Nevertheless, these are only prima facie

observations and without prejudice to the defences of the accused and

what may ultimately emerge at a subsequent stage in the proceedings.

10. In the circumstances, the Court is of the considered view that the

learned ASJ was plainly in error in proceeding to enlarge Respondent

No.2 on regular bail within one day of arrest in the matter. Plainly, the

FIR calls for further detailed investigation and the custody of the

Respondent No.2/accused will certainly be required for that purpose.

11. In that view of the matter, the order passed by the learned ASJ on

5th June 2015 is hereby set aside and the bail granted to Respondent

No.2 is cancelled. Respondent No.2 will now surrender before the

Investigating Officer by 5 pm today.

12. The Court is of the view that in order to protect her privacy the

name of the victim Complainant shall be kept anonymous in the

proceedings throughout.

13. A copy of this order be given dasti to learned counsel for the

parties as well as the IO under the signature of Court Master.

S. MURALIDHAR (Vacation Judge)

JUNE 11, 2015/dn