‘X’ (Changed Name) vs State & Anr
2016 Latest Caselaw 1765 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI

                        RESERVED ON : 11th FEBRUARY, 2016
                             DECIDED ON : 4th MARCH, 2016

+            CRL.M.C.2120/2015 & CRL.M.A.No.1567/2016

      'X' (Changed name)                                 ..... Petitioner

                         Through :    Mr.Prashant Mendiratta, Advocate
                                      with Mr.Gauravjeet Narwan &
                                      Ms.Poonam Mendiratta,
                                      Advocates.


                         versus



      STATE & ANR.                                       ..... Respondents

                         Through :    Mr.Sanjay Lao, ASC with
                                      Mr.Siddharth Sindhu, Advocate.
                                      Mr.Ramesh Gupta, Sr.Advocate
                                      with Mr.Ashish Dixit, Advocate for
                                      R2.

       CORAM:
       HON'BLE MR. JUSTICE S.P.GARG

S.P.GARG, J.

1. Present petition under Section 439(2) read with Section 482

Cr.P.C. has been filed by the victim 'X' (changed name) assailing the

legality and correctness of an order dated 21.03.2015 and for cancellation

of anticipatory bail granted to the respondent No.2 (hereinafter referred

'The accused') in case FIR No.52/2015 registered under Sections

354/354A/354D/506 IPC at PS Lodhi Colony. The petition is contested by

the accused. Status report has been filed by the State.

2. The facts material for adjudication of the petition as stated in

the petition are that 'X', Research Analyst in the office of the accused at

The Energy & Research Institute (In short 'TERI') since September, 2013

filed a complaint with the Internal Complaints Committee on 09.02.2015

complaining sexual harassment by him. After that, she was subjected to

even more harassment; there were repeated attempts by the accused to call

her to his office; meet her alone and talk to her. She lodged complaint

with the police on 13.02.2015 against the accused for having committed

various offences including that of sexual harassment but it did not register

the FIR promptly. After the article regarding her complaint was carried

out by the Economic Times, New Delhi on 18.02.2015, the police lodged

the FIR. The accused was not only capable of exercising influence and

tempering with the evidence but he actually influenced the witnesses and

tampered with the evidence.

3. It is further averred that on 26.02.2015, Investigating Officer

opposed the grant of anticipatory bail / interim protection to the accused

as he had the potentiality to exercise extreme influence over the witnesses.

Since the accused was working as Director-Genral of TERI for the last

about 34 years, he had complete control over all the electronic devices and

computers. It is further averred that application dated 18.02.2015 for early

hearing filed by State was taken up on 21.03.2015 after notice to the

accused. Though 21.03.2015 was a date only for hearing the application

for early hearing, the learned Trial Court granted anticipatory bail to the

accused with certain conditions incorporated therein.

4. Questioning the justifiability of the impugned order, learned

counsel for the petitioner strenuously urged that the Trial Court did not

appreciate that the investigating agency had filed various documents to

reveal that the accused had influenced the witnesses and had directed

them to state whatever he desired them to state before the police. Non-

consideration of the material facts / documents vitiates the impugned

order. The accused has taken contradictory defence in his various petitions

and suit. He remains in constant touch with the officials of TERI who are

expected to be introduced witnesses in the case. It is further contended

that the Trial Court did not appreciate that TERI officials at the accused's

behest did not cooperate with the Probing Agency and regularly avoided

accepting official notices on one pretext or the other. DD No.24B dated

13.03.2015 confirms it. They did not respond properly on certain issues

and ignored to give replies to the notices received by them. TERI officials

declined to provide e-mail details exchanged between the petitioner and

the accused. Information sought from TERI officials by the Investigating

Officer by issuing notice under Section 91 Cr.P.C. was made available

after due consultation with the accused. Learned counsel referred to the

statement dated 15.03.2015 of Ramington Fernandes where he admitted

that he was called by the accused at Fortis Escort Hospital and he had

dictated to file additional details along with the photographs in the chart.

The photographer sent by TERI staff gave in writing to the police that he

was told by the senior TERI officials that the accused needed help in that

hour and he would take care of him in times to come. The Court below

committed grave error to ignore e-mail dated 24.02.2015. It is vehemently

urged that the police had consciously sought custodial interrogation of the

accused. The Court failed to appreciate that the equipments which were

being sent and handed over were in fact to be seized by the police from

the office of TERI in the presence of the petitioner who could have helped

them in identifying the same by logging onto them and opening the portals

and the e-mails. Merely picking and choosing the machines by the

officials of TERI in the petitioner's absence has no value. The petitioner is

aggrieved as fair and free investigation cannot be carried out if the

accused is permitted to roam around freely and keep influencing and

dictating the witnesses. He further urged that right from the time when the

crime was registered, the accused has tried to create pressure on the

investigation machinery / witnesses.

5. State in its Status Report / Additional Status Report asked for

custodial interrogation of the accused due to his reluctance to give proper

replies to the questions during interrogation. Admitting that the petitioner

had joined the investigation on various dates, it disclosed that the

witnesses were being influenced by him.

6. In his comprehensive reply, the accused refuting the

petitioner's allegations averred that the complaint has been lodged to

malign his impeccable credibility. The instant petition for cancellation of

bail has been filed to pre-empt the relief sought by him in the application

dated 15.05.2015 for modification of the condition 'not to enter TERI'.

After the grant of anticipatory bail on 21.03.2015, he never misused the

liberty accorded to him and promptly joined the investigation on various

dates for sufficient duration. He was even permitted by the Trial Court to

travel abroad on many occasions and he returned to India without

violation of its terms and conditions. He has neither influenced any

witness nor has interfered in the investigation. That apart, it is put forth

that in the absence of any failure on his part to respect the conditions, his

liberty should not be put to jeopardy at the instance of an interested party

who is bent upon to harass him.

7. Admitted position is that FIR No.52/2015 under Sections

354/354A/354D/506 IPC has been lodged against the accused on X's

complaint dated 13.02.2015. She, in her complaint, alleged sexual

harassment at her work-place by the accused on various dates and

locations in between September, 2013 to December, 2014. She also

alleged that the accused had engaged in sexually-laden conversations with

her over e-mails and text messages. On 19.02.2015 in the Bail Application

329/2015, notice under Sections 91 & 41 Cr.P.C. directing him to supply

the documents / information / evidence was produced. It was informed

that the required instruments i.e. laptop, etc. had already been handed over

to the Investigating Officer that morning. The accused was granted

interim protection against arrest till 23.02.2015 which was further

extended by the Trial Court till 26.02.2015. In the application to file

additional documents (Annexure 'P6') the accused informed that he had

temporarily stepped down from his position as the Director-General of

TERI. Status report filed by the State (Annexure 'P8') revealed that on

19.02.2015, the accused had produced various items / devices used for

communication by him since January, 2013; it included mobile phone,

hard-disk, laptops & I-pads, etc. It further showed that the accused had

undergone cardiac catheterization on 24.02.2015 at Fortis Escort Hospital.

The interim protection was extended imposing certain conditions, inter

alia that he will join the investigation as and when called; shall not leave

the country without prior permission of the Court; shall not enter the

office of TERI till the investigation was over and shall not directly or

indirectly influence or contact the complainant or other witnesses related

to the case. Finally, by the impugned order, the respondent was granted

anticipatory bail.

8. It is pertinent to note that State did not file any proceedings

for cancellation of bail. It is the victim who has challenged the bail

granted to the accused. During the course of arguments, in response to the

query about the progress of the investigation, learned Addl. Standing

Counsel informed that it was almost complete and charge-sheet was

expected to be filed within two weeks. Learned Addl. Standing Counsel or

the Investigating Officer did not press for custodial interrogation of the

accused.

9. By a letter dated 23.02.2015, the Investigating Officer

required Administration (Manager), TERI to furnish information with

supporting documents as to how many outstation official journeys were

performed by 'X' with the accused during her both the tenures i.e. since

August, 2012 to date. Information was further sought regarding - (a) The

purpose, place and date of journey; (b) Details of other employees who

accompanied them in such journeys; (c) Duration of such journeys; (d)

Mode of journeys (with journey travel documents such as tickets, passes,

copy of visa, passport entry copy etc.) and (e) Details of places of stay

with relevant documents such as hotel reservations, bills etc. besides any

'other relevant information' regarding such journeys. The necessary

information was to be made available on 24.02.2015 at 04.00 p.m. at PS

Lodhi Colony, Delhi. Apparently, a very short notice to furnish the

detailed information was given to the concerned office. Table giving out

the details of journeys in a chronological order marked (Ex.A to Ex.E)

was furnished vide letter dated 24.02.2015. It is true that this table

incorporates 'additional information' furnished by Ramington Fernandes

at the accused's behest. For that, he was summoned by the Investigating

Officer to seek clarification vide notice under Sections 160/175 Cr.P.C. on

14.03.2015. In his statement dated 15.03.2015 under Section 161 Cr.P.C.,

he explained that on the request of the administration TERI, he was asked

to collect information relating to all travel undertaken by the accused and

the victim. Based on the same, whatever information that he could pull out

in short notice, he prepared a statement (summery table) providing date

and time of departure, destination, date and time of arrival of destination,

event & hotel. That information was shown by him to the accused in

Fortis Escort Hospital where he mentioned that he could include 'some

details' in the table. He fairly admitted that the accused had dictated the

details mentioned (under column details) in rows 4, 7, 12, 15, 17, 18, 20,

24 & 26 of the table. He also told him to provide photographs of 'himself'

and that of the 'prosecutrix' wherever available which he did.

10. I have examined the table incorporating the 'additional

information' which the accused required Ramington Fernandes to be

incorporated while furnishing the detailed information sought by the

Investigating Officer. Prima facie, the 'additional information' so

distinctively incorporated in the table has no impact on the substance of

the complaint whereby the victim was allegedly sexually harassed or

criminally intimidated. Merely because, the accused had asked the official

Ramington to provide 'more' / 'additional information', it can't be

inferred that he had influenced the investigation or had attempted to

interfere with it in any manner. The Investigating Officer herself had

sought detailed and comprehensive information in a very short period. It is

not the complainant's case that the 'information' given in addition which

is part and parcel of the record was false or fabricated. Counsel for the

petitioner has failed to impress as to how the 'additional information'

given in the table amounted to interference in the investigation.

11. After hearing arguments on 13.01.2016, case was reserved

for orders for 28.01.2016. On 27.01.2016 Crl.M.A.No.1567/2016 was

filed by the petitioner to allege that a complaint received by SHO PS

Lodhi Colony on 12.01.2016 was not brought to the notice of this Court

that day. Counsel urged that the Delhi police had received the complaint

from Research Associate Mr.Rahul Singh claiming that he was

approached by 'TERI' officers to talk to 'X' to explore possibility of out-

of-Court settlement. Status report filed by the State reveals that on receipt

of the complaint on 12.01.2016 at around 07.45 p.m. vide DD No.51B, it

was sent to the Investigating Officer for enquiry on 13.01.2016. In the

complaint, Mr.Rahul Singh, Research Associate had alleged that Senior

Directors, Area Convener of 'TERI' had approached him to impress 'X'

to settle the dispute out of Court. Mr.Rahul Singh in his statement under

Section 161 Cr.P.C. recorded on 27.01.2016 disclosed that in July, 2015

Mr.Sanjay Joshi, Senior Director TERI had told him to talk to 'X' to settle

the dispute to which he declined. He further named Dr.Reena Singh, Area

Convener who had similarly spoken to him. He further named Mr.Alok

Adholeya, Director, who had allegedly spoken to him twice in October,

2015. He, however, admitted that he was not pressurized by any 'TERI'

official. For delay in lodging the complaint, he informed that he feared for

his job and had resigned from 'TERI' on 11.01.2016. Status report further

records that during their examination Mr.Alok Adholeya and Mr.Sanjay

Joshi stated that it was a very casual conversation with Mr.Rahul Singh

during his visit to the workstation in 'TERI'. Mr.Sanjay Joshi stated that

he was never approached by the accused or anyone else to talk for

settlement and he had never pressurized Mr.Rahul Singh for that. Dr.Alok

Adholeya could not be examined being out-of-India on official tour.

Dr.Reena Singh denied to have any such conversation with Mr.Rahul

Singh.

12. Learned counsel for the petitioner urged that the complaint

dated 12.01.2016 made by Mr.Rahul Singh was deliberately concealed at

the time of arguments on 13.01.2016. An attempt was made on behalf of

the accused through these officers to convince Mr.Rahul Singh to explore

possibility of settlement out-of-Court with 'X' and it amounted to

interference in the investigation. Counsel for the accused has controverted

these allegations.

13. The timings of filing the complaint directly to the police by

Mr.Rahul Singh on 12.01.2016 at around 07.45 p.m. are intriguing. The

complainant herself did not reveal if at any time Mr.Rahul Singh had

approached her for any such out-of-Court settlement at the behest of TERI

officers. The victim was never approached either by the accused or the

officers named by Mr.Rahul Singh for settlement. Though, Mr.Rahul

Singh was allegedly approached in July / October, 2015, for no plausible

reasons, he came forward to report it promptly. This complaint has been

lodged after he tendered resignation on 11.01.2016. Its authenticity and

genuineness is to be ascertained during investigation / trial. At this stage,

the complaint lodged by him cannot be considered to be an attempt by the

accused to scuttle the investigation or to interfere with the due course of

administration or any abuse of the indulgence granted to him.

14. It is well settled in law that cancellation of bail after it is

granted because the accused has mis-conducted himself or of some

supervening circumstances warranting such cancellation have occurred is

in a different compartment altogether than an order granting bail which is

unjustified, illegal and perverse. If in a case, the relevant factors which

should have been taken into consideration while dealing with the

application for bail and have not been taken note of it or it is founded on

irrelevant considerations, indisputably the superior court can set-aside the

order of such a grant of bail. In such an eventuality, the Court delves into

the justifiability and the soundness of the orders passed by the Court

below. It is equally true that very cogent and overwhelming circumstances

are necessary for an order of cancellation of bail already granted. It should

not be lightly resorted to. Power to grant bail is not to be exercised as if

the punishment before trial is being imposed. The material considerations

in such a situation are whether the accused would be readily available for

his trial and whether he is likely to abuse the discretion granted in his

favour by tampering with the evidence. In 'Siddharam Satlingappa

Mhetre vs. State of Maharashtra & ors.', 2011 (1) SCC 694, the Hon'ble

Supreme Court held that where the accused has joined the investigation, is

co-operating with the investigating agency, and is not likely to abscond,

custodial interrogation should be avoided.

15. The impugned order dated 21.03.2015 is based upon fair

appraisal of the materials and all the relevant aspect of the matter have

been considered minutely. It is informed that the said order has since been

modified and the accused has been permitted to enter and visit all the

premises of 'TERI' including the Head Office as well as Gurgaon office.

It is unclear if the said order has been challenged by the complainant.

16. Petitioner's counsel has failed to impress as to for what

purpose, custodial interrogation of the petitioner is required. While

granting anticipatory bail to the petitioner, safeguarding the petitioner's

interest and that of the Investigating Agency, stringent conditions have

already been imposed upon the accused. This Court finds no manifest

error in the matter of grant of bail by the Trial Court.

17. The petition is dismissed. Pending application also stands

disposed of.

                                                      (S.P.GARG)
                                                        JUDGE
MARCH          04, 2016 / tr