Shashi Shekhar Thakur vs State
2016 Latest Caselaw 1952 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

                                 DECIDED ON : MARCH 11, 2016

+                     BAIL APPLN. No. 1048/2015

       SHASHI SHEKHAR THAKUR                   ..... Petitioner
                    Through : Ms.Geeta Luthra, Sr.Advocate,
                              with Mr.R K Bachchan, Advocate.

                           Versus

       STATE                                             ..... Respondent
                           Through :    Ms.Richa Kapoor, ASC with
                                        Mr. Ashish Negi, Advocate
                                        Mr. Sandeep Das, Advocate for the
                                        Complainant.


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

S.P.GARG, J. (ORAL)

1. The petitioner seeks regular bail under Section 439 Cr.P.C.

in case FIR No.61/2013 under Section 376(2)(f)/109/34 IPC registered at

Police Station Connaught Place. The bail is highly opposed by respondent

No.2/victim. The State has filed status report, it is taken on record.

2. Ld. Senior counsel urged that the petitioner aged around 65

years, a senior citizen and resident of Muzaffarpur, Bihar, is in custody

since 30.11.2013. Charge-sheet has already been filed and the statement

of the prosecutrix is being recorded before the trial court. PW-2 to PW-6

in their statements before the Court have not supported the prosecution.

In the complaint dated 24.04.2013, the prosecutrix has leveled allegations

of sexual abuse/assault from June 1994 to July, 2005. She however did

not furnish any plausible explanation for inordinate delay of ten years

after turning major in 2003 to lodge the complaint. 'X' aged 28 years has

graduated from a prestigious fashion designing college i.e. NIFT,

Hyderabad and is a fashion designer by profession. Learned Senior

Counsel further urged that despite grant of various opportunities by the

trial court, 'X' did not come forward to record her statement. The trial is

expected to take long time to examine. 37 witnesses relied on by it. The

petitioner is to take care of his two young children including a daughter of

marriageable age. There is no apprehension of the petitioner to abscond or

misuse the liberty, if released on bail. It is further urged that in order to

put his defence properly and effectively, the petitioner requires regular

interaction with his counsel at the time of cross-examination of the

prosecutrix. Reliance has been placed on Rohit Chauhan vs.State Bail

Appl.311/13; Nirmal Vaid vs.State Bail.Appl. 1760/2012; Jagdish

Nautial vs.State Bail.Appl.1317/2012; Kishan Singh vs.Gurpal Singh

2010 (8) SCC 775; Deepak Gulati vs.State of Haryana 2013 (7) SCC 675;

Bhagirath Singh vs.State of Gujrat 1984 (1) SCC 284; Jagannivasan

vs.State of Kerla 1995 Supl.(3) SCC 204; Rajesh Patel vs.State of

Jharkhand 2013 (2) SCC (Crl.)279; Raju vs.State of MP 2008 (15) SCC

133; Abbas Ahmad Chaudhary vs.State of Assam 2010 (12) SCC 115;

Bhardresh Bipinbhai Seth vs.State of Gujrat 2015(9) SCALE 403; Sanjay

Chandra vs.CBI 2012 (1) SCC.

3. Complainant's counsel refuting the contentions vigorously

contended that the petitioner has been charged with a heinous crime of

rape under Section 376(2)(f)/109/34 IPC. 'X' has moved this court for

amendment of the charge and to proceed against him for the crime u/s 313

and 377 IPC too. Earlier the petitioner had not joined the investigation and

non-bailable warrants were issued for his arrest. There is highly likelihood

of his fleeing from justice if enlarged on bail. Meena Mishra, petitioner's

family member, is still to be examined and there is a likelihood of the

petitioner to exert pressure on her. The victim being a married lady with

an infant daughter is vulnerable to all kinds of threats and pressure from

the accused, who has criminal antecedents and was previously involved in

a murder case. It is further urged that delay in lodging the FIR is not fatal.

The prosecutrix had no support system to raise her voice against the

petitioner who occupied an influential position in the family and the

society. Reliance was placed upon Court on its own Motion vs.Vishnu

Pandit and Anr. 1993 CriLJ 2025; State of Rajasthan vs.Om Prakash

(2002) 5 SCC 745. The State has also opposed the grant of bail as

allegations against the accused are very serious and grave.

4. Admittedly, the petitioner is involved in a rape case lodged

by the complainant on her complaint dated 24.04.2013. In her

comprehensive complaint, she has given detailed account as to how under

what circumstances and in what manner on various dates and locations,

she was sexually assaulted/abused by the petitioner and his brother (since

discharged) since the time she was aged around nine years. She attributed

specific and definite role to the petitioner. Sexual abuse allegedly

continued till 2005. The prosecutrix after her marriage in 2013 gathered

courage to raise her voice and lodge the complaint. The petitioner and the

prosecutrix are closely related to each other. It is a matter on record that

'X' was financially supported by the petitioner. She had reposed utmost

faith and trust in him after the death of her father and she was compelled

to live at his house at Muzaffarpur. In her examination-in-chief recorded

on various dates, she has reiterated the version given to the police. Her

cross-examination is yet to be recorded. It is also on record that she has

filed an application for amendment of the charges under Section 216

Cr.P.C. which is under challenge. Vide order dated 17.09.2015 this Court,

dismissed her petition (Crl.Rev.P.637/2014) whereby she had challenged

the order of the Trial Court dated 03.07.2014 to discharge Respondent

No.2 (Meera Thakur) and Respondent No.3 (Mukul Thakur). She has

filed SLP (Crl.) No. 9960/2015 against the said order and the Hon'ble

Supreme Court has stayed the cross-examination of the prosecutrix before

the Trial Court by an order dated 7.12.2015.

5. Delay in lodging the FIR/complaint in sexual offences is not

always fatal. There may be various reasons for such delay. The

prosecutrix who is under examination will have to explain the delay in

lodging the FIR. The fact remains that the prosecutrix was allegedly

sexually abused by her own close acquaintance for about 10 years

repeatedly. She was apparently dependent upon the petitioner for financial

support and was in a very vulnerable position to raise her voice against

exploitation.

6. The contention that she is interested to delay the recording of

her statement is devoid of merits. Her examination-in-chief, a very

lengthy statement, has been recorded on various dates for considerable

time. For all the adjournments before the Trial Court, she alone cannot be

faulted as on many occasions, the Trial Court record had been

requisitioned by this Court for disposal of this case as well as in the

Criminal Revision Petition 637/2014. Moreover, considering the facts and

circumstances, during the pendency of the SLP, the Hon'ble Supreme

Court has stayed the recording of the cross-examination of the victim.

7. Heinous nature of the case warrants more caution. While

granting bail, the Court has to keep in mind not only the nature of

accusations but the severity of the punishment, if the accused entails a

conviction. Reasonable apprehension of the prosecutrix/witness being

tempered with or the apprehension of there being a threat for the

complainant are other factors to decline bail. It must be remembered that

child sexual abuse cases by known family members are on the rise and

have a very serious impact on the society. The petitioner being

represented by a counsel including Senior Counsel in various petitions for

or against him can defend himself properly even in custody as no

restrictions have been placed upon him not to be in contact with his

counsel to brief him / her on relevant issues.

8. The judgments cited by the learned Senior Counsel for the

petitioner primarily relate to the cases/offences in which physical relations

took place between the accused and the prosecutrix/victim with consent

albeit on the alleged promise to marry. This is not so in the instant case

where a tender aged child around nine years old was sexually abused and

exploited when she had not adequate intelligence and maturity to

understand as to what was happening with her. Being minor, even her

'consent' was of no relevance.

9. The prosecution has further relied upon the conversation

recorded in CDs between the prosecutrix and the petitioner whereby he

allegedly admitted to have sexually abused the prosecutrix. On the face of

it, it can't be inferred that the complaint is frivolous. The petitioner did

not in categorical terms assigned any specific and oblique motive to the

complainant to implicate him. Nothing has been brought on record to

show if any time any illegal demand in the terms of monetary

consideration or property was raised by the complainant or her in-laws to

extract money from the petitioner. The allegations of property

consideration are vague and uncertain. It is true that the petitioner is in

custody since 30.11.2013 and the statement of the prosecutrix is

incomplete yet. That may be one of the factors but cannot be the whole

and sole factor in every case to grant bail.

10. Considering the gravity of the offence and serious allegations

against the petitioner, regular bail to the petitioner is declined and the bail

application is dismissed.

11. Observations in the order would have no impact on the merits

of the case.

12. Trial Court record be sent back immediately through 'Special

Messenger'.

S.P.GARG) JUDGE MARCH 11, 2016 sa / tr