Delhi High Court
Parminder Kaur vs State & Anr. on 2 August, 2016
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CRL.M.C. 1942/2016.
% Decided on: 2nd August, 2016
PARMINDER KAUR ..... Appellant
Through:Mr. Abhinav Agnihotri with Mr. Deepak
Vohra, Advocate.
versus
STATE & ANR. ..... Respondent
Through: Mr. Hirein Sharma, APP for State
along with SI Rahul Kumar, PS Jagat Puri.
CORAM:
HON'BLE MS. JUSTICE MUKTA GUPTA
MUKTA GUPTA, J. (ORAL)
1. By this petition, the petitioner seeks cancellation of bail granted to
respondent No.2 namely Majibudin @ Robert in case FIR No.598/2015
registered at Police Station Jagat Puri under Section 420 IPC, wherein later
on offence under Section 376/34 was also invoked.
2. Regular bail was granted to respondent No.2 vide order dated 6 th
April, 2016, by the learned trial court and the reasons thereof are reproduced
as under:-
"5. Briefly stated that facts of the case of prosecution are
that there was a complaint by husband of the prosecutrix
regarding her missing on which DD No.31-B, dated
30.09.2015 was recorded at PS Jagat Puri. The said
prosecutrix had eloped with one Narender (co-accused) and
they both were recorded from Jaipur on 01.10.2015 and on
next day i.e. 02.10.2015, they both (co-accused Narender
and prosecutrix) were let of and as prosecutrix did not allege
about any offence. However, on 03.10.2015, prosecutrix
lodged a complaint u/s. 420 IPC wherein she alleged that
co-accused Narender who was running a vegetable shop
near her house had told her that her husband was having a
love affair with one lady and he knows one Tantrik who
would perform „Jadu-Tona‟activities as a result of which her
husband would leave that lady and would be under her
control. Co-accused Narender took several gold ornaments
of the complainant for performance of tantric activities.
Subsequently, the husband of the prosecutrix found gold
ornaments missing and then prosecutrix told everything to
her husband who beat her up. On the same day dated
28.09.2015, prosecutrix ran away with said Narender and
reached Jaipur where she stayed for one day before both of
them were recovered. Subsequently, as per procedure the
said complaint U/s 420 IPC was sent to the office of DPC
office for approval, who finally granted approval for
registration of FIR and on 14.10.2015, present case FIR
initially u/s 420 IPC was registered against co-accused
Narender only. The co-accused Narender was not arrested
on 14.10.2015 till 21.11.2015 as it was stated by IO, he was
cooperating with investigation and getting jewellery articles
recovered. But he was finally arrested on 21.11.2015 when
no more jewellery could be recovered.
Subsequently, all of a sudden, on 25.11.2015, a fresh
statement u/s 161 Cr.P.C. was recorded by the IO wherein,
for the very first time, prosecutrix made allegations of rape
against co-accused Narender only and not against the
present applicant.
On 26.11.2015, IO introduced section 376 IPC in the
present case FIR in addition to section 420 IPC. On
27.11.2015, statement of prosecutrix was recorded u/s 164
Cr.P.C. wherein for the first time, she named the present
applicant Mujibudin @ Robert alleging that he also sexually
abused her in Jaipur on 20.09.2015. It is pertinent to
mention that till 27.11.2015 i.e. the date of recording of her
statement u/s 164 Cr.P.C., she had made no complaint
against the present applicant. She was medically examined
on 27.11.2015 i.e. after about two months of the alleged
incident but she refused to undergo her internal medical
examination. The present applicant was arrested on
07.01.2016, Ld. ACMM, after mentioning in the hearing
about case u/s 420/376/34 IPC, granted bail to the present
applicant but subsequently, an application for cancellation
of bail was moved by Ld. Addl. PP for State wherein it was
mentioned that Ld. ACMM did not consider the offence u/s
376 IPC as IO failed to mention about the same in his status
report.
6. On my query, it is stated by the IO that name of the
present applicant was not mentioned in the said complaint
and allegations for offence of cheating were made only
against co-accused Narender who joined investigation and
also got some gold articles recovered till 21.11.2015 and
since no further recovery was effected, co-accused Narender
was arrested on the same day i.e. 21.11.2015 for offence u/s
420 IPC.
7. Upon careful perusal of record, it is seen that in his
status report, IO did not mention anything about fact as to
how section 376 IPC was introduced later on by the
complainant after recovery of her gold articles. It is very
surprising that till recovery of the gold articles were there,
prosecutrix did not have any complaint against anyone
regard rape for about two months. It is also seen that in her
statement u/s 161 Cr.P.C. given to police on 25.11.2015, she
makes allegations of sexual harassment against co-accused
Narender but does not mention anything against the present
applicant. It is also seen that for the very first time on
27.11.2015 only, she makes complaint of sexual abuse
against the present applicant.
8. To say lease without getting into the matter, the
present case is a classic example where the prosecutrix as
per her convenience chose to improve her version and
introduced section 376 IPC for the very first time after two
months of her recovery as on 25.11.2015 only against co-
accused Narender and she made further improvement on
27.11.2015 by making allegation against present applicant
for the very first time. It is also seen that the medical
examination took place after two months of the incident and
even otherwise the same was of no use as the prosecutrix
refused to undergo her internal medical examination. It is
also seen that the present applicant, who was arrested on
07.01.2016 and remained in custody till 17.02.2016, was
granted bail by Ld. ACMM. It is seen that Ld. ACMM
while canceling bail observed that IO failed to given
complete details regarding offence under section 376 IPC in
his status report and while issuing show cause notice to the
IO, Ld. ACMM cancelled the bail without getting into the
improvements made by prosecutrix along with her conduct."
9. I have carefully gone through the complete record of
the case. Needless to say that it is a perfect case, where
subsequent improvements have been made by the
prosecutrix who chose to remain silent for two months till
recovery of her gold articles. Even co-accused was not
arrested till that day and was arrested on 21.11.2015. There
is not even an iota of complaint against the present applicant
till 27.11.2015. Even on 25.11.2015, name of the present
applicant was not mentioned as has been discussed herein
above. Accused was taken into custody at the time of
cancellation of bail on 08.03.2016 and has already spent
period in custody from 07.01.2016 till 17.02.2016 and
subsequently from 08.03.2016 till today.
10. Considering the overall facts and circumstances of the
case, as discussed above as well as improvements and
infirmities in the statement of prosecutrix, I deem it a fit
case for grant of bail to the applicant. Application is
allowed. Applicant/accused Mujibuddin @ Robert is
admitted to bail on his furnishing PB & SB in the sum of
Rs. 50,000/- with one surety in the like amount to the
satisfaction of Ld. ACMM/Link MM/Duty MM subject to
the conditions that applicant shall not influence the
witnesses and shall not try to tamper with the evidence."
3. A perusal of the record reveals that since initially Section 420 IPC was
invoked, the respondent No.2 was granted regular bail by the learned
ACMM, after he remained in custody for one month and ten days. Later it
was brought to the notice of the learned ACMM that Section 376 was also
invoked. Considering the fact that Section 376 IPC was also invoked,
learned ACMM cancelled the bail vide order dated 8 th March, 2016, on the
ground that the fact of Section 376 IPC being invoked was not informed to
the court and a show cause notice was issued to the Investigating Officer.
On respondent No.2 approaching the learned ASJ for bail under Section 439
Cr.P.C., the impugned order dated 6th April, 2016 was passed.
4. The ground for cancellation of bail of respondent No.2 is not that he
tampered with the evidence or threatened the prosecutrix, but that the
impugned order passed by the learned ASJ was perverse, as it failed to take
note of the fact that there were serious allegations against the petitioner.
5. In the FIR, the respondent No.2 was a person, who was doing tantric
activities. It is alleged that the prosecutrix heard him saying that she should
be sent to Nepal and that if he was given a sum of Rs. 2,00,000/-, then he
would leave the girl and he had said that "isse jabardasti meri ijjat se khilwar
kiya hai, jo kehta hun karti jaa nahin to kali shaktiyan tere ghar chhurva
dunga"(he exploited my modesty. Do whatever I say otherwise I will get
delivered evil powers at your home).
6. From the averments made in the FIR it is clear that there is no
allegation of rape against the respondent No.2 and there are subsequent
improvements in the form of statement under Section 164 Cr.P.C. which was
noted by the learned ASJ.
7. Considering the facts and circumstances of the case, the order
impugned cannot be held to be a perverse order warranting interference by
this court.
8. The present petition is accordingly dismissed.
(MUKTA GUPTA)
JUDGE
AUGUST 2, 2016
'n'
