Delhi High Court
Shalainder Upadhyay vs Govt Of Nct Delhi on 13 June, 2016
$~3
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of hearing and order: 13th June 2016
+ BAIL APPLN. 1228/2016
SHALAINDER UPADHYAY
..... Petitioner
Through: Mr. Barun Sinha and Mr. Pradeep
Desodya, Advocates
versus
GOVT OF NCT DELHI
..... Respondent
Through: Ms. Meenakshi Dahiya, Additional
Public Prosecutor for the State
Mr. Ajay Kumar Jha, Advocate for
complainant
CORAM:
HON'BLE MR. JUSTICE P.S.TEJI
ORDER
% 13.06.2016
P.S.TEJI, J. (Oral)
1. By this second application filed under Section 438 of Cr. P.C.,
the petitioner seeks anticipatory bail in FIR No. 348/2016 under
Section 376/506 of Indian Penal Code registered at Police Station
Bindapur, District South West, Delhi.
2. The prosecution case as per the complaint of one Ms. Manisha
Chaurasia is that the petitioner used to study with her in NIIT Varanasi
and had friendly relations with her and under the promise of marriage,
he made sexual relations with the complainant in September 2007.
Complainant did her MBA and started doing a job in Delhi. Accused
(petitioner herein) got married on 11th May 2014. The petitioner had
prepared obscene and nude videos of complainant at the time of sexual
intercourse with her without complainant's knowledge and consent
and on the basis thereof, he threatened, blackmailed and continuously
raped her. The complainant got engaged and her marriage was fixed
for 17th April, 2016 and even after knowing this fact, the petitioner put
pressure upon her to break the marriage. It is alleged that the petitioner
sent nude photos of complainant to the person she was engaged to be
married resulting into their break up.
3. Mr. Ajay Kumar Jha, learned counsel for the petitioner
contended that the present FIR has been lodged with malafide
intention to harass the petitioner and to break the marriage of the
petitioner. Learned counsel for the petitioner further contended that
the complainant has lodged false complaint against the petitioner even
after being aware of the fact that they were in a relationship with each
other since the year 2007 and in support thereof the emails/chats
exchanged between the complainant and the petitioner are relied upon.
4. Learned counsel for the petitioner further contended that the
complainant was in relationship with the accused for more than 7-8
years and all the acts committed between them were with mutual
consent and without any sort of pressure. It is further submitted that
the complainant was aware of the fact that the petitioner got married
on 11.05.2014 and even after having the knowledge about the
marriage of the accused with some other lady, the complainant chose
to keep mum and the complaint has been filed after an inordinate
delay.
5. Lastly, it is contended that the complainant, with intent to break
the marriage of the petitioner, has levelled wrong and false allegations
against the petitioner and lodged the present FIR to extort money from
the petitioner.
6. Ms. Meenakshi Dahiya, learned Additional Public Prosecutor
for the State filed the status report and vehemently opposed the
aforesaid contentions of the petitioner. It is contended on behalf of the
State that the petitioner has committed a grave offence of rape with the
complainant on the pretext of marriage and prepared obscene videos
of her. The bail is opposed on the ground that when the complainant
got engaged to another person, the petitioner sent objectionable
photographs of the complainant to the person she was engaged to
marry which resulted into the breakup of the said marriage.
Accordingly, custodial investigation of the petitioner is sought to
recover the objectionable videos/photographs/ laptop from the
petitioner. It is further submitted that the petitioner is evading his
arrest in the present case and has not joined the investigation and
NBW has been issued against him on 02.06.2016.
7. I have heard the submissions made on behalf of both the sides
and also gone through the contents of the petition and the record of
this case.
8. In Prasanta Kumar Sarkar v. Ashis Chatterjee (2010) 14
SCC 496, the Hon'ble Supreme Court dealt with the basic principles
laid down in catena of judgments on the point of granting bail. The
Court proceeded to enumerate the factors:
9. ... among other circumstances, the factors [which are]
to be borne in mind while considering an application for
bail are:
(i) whether there is any prima facie or
reasonable ground to believe that the
accused had committed the offence;
(ii) nature and gravity of the accusation;
(iii) severity of the punishment in the event of
conviction;
(iv) danger of the accused absconding or fleeing,
if released on bail;
(v) character, behaviour, means, position and
standing of the accused;
(vi) likelihood of the offence being repeated;
(vii) reasonable apprehension of the witnesses
being influenced; and
(viii) danger, of course, of justice being thwarted
by grant of bail.
9. Considering the aforesaid facts and circumstances of the
present case and the fact that the trial is at the initial stage and
though the petitioner has contended some facts, but in the considered
opinion of this Court, the same can ultimately be appreciated and
adjudged during trial by leading cogent evidence and not at the stage
of considering the application for bail. This Court further observes
that even as per the petitioner, he was in a live-in relationship with
the prosecutrix since 2004 and had continued the same even after
having married with some other lady. Therefore, considering the fact
that the trial is at an initial stage, the complainant has alleged
grievous allegations against the petitioner and for the purpose of
recovery of objectionable videos/photographs/laptops from the
petitioner, the State has asked for custodial interrogation of the
petitioner.
10. Resultantly, in the considered opinion of this Court, the facts
emerging from the record culminates into dismissal of the present bail
application. Accordingly, the present bail application filed by the
petitioner is dismissed.
11. Before parting with the order, this Court would like to place it
on record by way of abundant caution that whatever has been stated
hereinabove in this order has been so said only for the purpose of
disposing of the prayer for bail made by the petitioner. Nothing
contained in this order shall be construed as expression of a final
opinion on any of the issues of fact or law arising for decision in the
case which shall naturally have to be done by the Trial Court seized of
the trial.
12. With aforesaid direction, the present bail application, filed by
the petitioner stand disposed of.
P.S.TEJI
(VACATION JUDGE)
JUNE 13, 2016
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