Delhi High Court
Ms. Anuradha vs Govt. Of Nct Of Delhi Thr. And Ors. on 17 November, 2017
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* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CRL.M.C. 559/2015
Judgment reserved on 8th November,2017
Judgment pronounced on 17th November, 2017
Ms. ANURADHA ..... Petitioner
Through: Mr. M. Mohsin Israily & Mr. Saif
Islam Israily, Avocates
versus
GOVT. OF NCT OF DELHI THR. & ORS. .... Respondents
Through: Mr. Amit Ahlawat, APP for State.
Mr. Puneet Garg & Mr. Nitesh Gupta,
Advocates for R-2
CORAM:
HON'BLE MS. JUSTICE SANGITA DHINGRA SEHGAL
1. The present petition have been filed under Article 227 of the
Constitution read with Section 482 of the Code of Criminal
Procedure, 1973, (hereinafter referred as 'Cr P C') challenging the
order dated 13.11.2014 whereby learned Trial Court granted bail to
Jitender Kumar/accused/respondent no.2 in case FIR No. 407/2013
registered at PS Jagatpuri, Delhi, under sections 376/328 of the
Indian Penal Code, 1860 (hereinafter referred 'IPC').
2. The brief facts of the case are that the complaint was lodged at
police Station Jagatpuri on 06.09.2013, by the prosecutrix under
Section 376/328 of IPC. It was alleged by her in the complaint that
in April 2011, she went to the accused's/respondent no.2 shop to
buy jeans where after they started talking to each other. One day,
the accused proposed her for the marriage and told her that he had
already told his family members of marriage. Their marriage was
later accepted by both the families and then around April 2011, the
accused called her at his house on the pretext of meeting his sister-
in-law. On reaching the house, she saw that no one was present
there, she was offered cold drink by him and after consuming it she
became unconscious. It was further alleged that the accused
committed sexual intercourse with her. He continued to have
physical relations with her on the promise of marriage. It was in
March 2013, the accused refused to marry her, that the complaint
was lodged by the petitioner under Section 376/328 IPC. The
accused was arrested on 07.09.2013 and was granted bail by the
learned ASJ vide order dated 13.11.2014. Hence, the present
petition.
3. The learned counsel for the petitioner contended that the Trial
Court has erred in passing the order dated 13.11.2014 as the same
is based on conjectures and surmises; that on 26.05.2014, the
accused/respondent no.2 had paid a sum of Rs. 7,10,000 to the
prosecutrix on the false pretext of marriage, in pursuance to change
of her statements and also obtained signatures of the petitioner on
the typed affidavit; that the said money was taken back by them on
02.06.2014 but the signed affidavit was not returned to her; that on
31.10.2014, the said affidavit was misused by him by presenting
the same in the concerned court and on that pretext application for
interim bail was moved by him in the court; that on 13.11.2014,
regular bail was granted by the Trial Court, though the application
for grant of interim bail for 2 months was moved on behalf of the
respondent no.2; that after the grant of the regular bail to the
respondent no.2, the petitioner was threatened by him and on
account of which the complaint was lodged by her 10/11.12.2014
and also furnished the necessary details to the police officials.
4. Per contra, the learned counsel for the respondent no.2 contended
that the accused/respondent no. 2 has been falsely implicated in
this case; that the petitioner and the respondent no. 2 were in
relationship for 2 ½ years and also visited several places together;
that there are material contradictions in the statement of the
prosecutrix during the process of recording of the evidences; that
there is no medical or forensic evidence against the respondent
No. 2; that the Trial court had rightly granted him the bail after
considering all the materials on record.
5. The submissions made by the both the parties have been
considered and the records have been perused.
6. Before making the necessary observations on the said contentions,
it is relevant to peruse the principles for considering application for
the Cancellation of Bail. In 'Kamar Singh Meena vs. State of
Rajasthan', reported in (2012) 12 SCC 180, it was observed that:
"wherein it was observed that while cancelling bail
under Section 439(2) of Cr.P.C., the primary
considerations which weigh with the Court are
whether the accused is likely to tamper with the
evidence or interfere or attempt to interfere with the
due course of justice or evade the due course of
justice. But that is not all. The High Court or the
Sessions Court can cancel the bail even in cases
where the order granting bail suffers from serious
infirmities resulting in miscarriage of justice. If the
Court granting bail ignores relevant materials
indicting prima facie involvement of the accused or
takes into account irrelevant material, which has no
relevance to the question of grant of bail to the
accused, the High Court or the Sessions Court would
be justified in cancelling the bail. Such orders are
against the well recognized principles underlying the
power to grant bail. Such orders are legally infirm
and vulnerable leading to miscarriage of justice and
absence of supervening circumstances such as the
propensity of the accused to tamper with the evidence,
to flee from justice, etc. would not deter the Court
from cancelling the bail."
7. In Onkar Gulati vs. State & Anr. reported in 71 (1998) DLT 463 in
which the Apex Court observed as under:-
"6. It is a well established principle of law that it is
easier to grant bail in a non bailable case. However,
once a bail is granted it cannot be cancelled merely
on a request from the side of the complainant unless
and until the complainant shows that the same is
being misused and it is no longer conducive in the
interest of justice to allow him any further to remain
on bail. Once a man has been set at liberty through
an order of a Court he cannot be deprived of the same
unless the complainant makes out a case for
cancellation of the same. There is a consensus
amongst different High Courts and the Hon'ble
Supreme Court on this points that a bail once granted
can be cancelled only in those discerning few cases
where it is shown that a person to whom the
concession of bail has been granted is misusing the
same by subverting the course of justice i.e. efforts
are being made to suborn the witnesses, threats are
being extended to the witnesses and they are being
intimidated not to appear against the accused
persons and in case they do so they will have to bear
dire consequences. The bail can also be cancelled in
case the accused on bail fails to appear before the
court at the time of the trial and thus there is an abuse
of the process of the court."
8. After perusal of the above stated well settled proposition of law on
cancellation of bail, it is pertinent to see the facts and
circumstances of the present case. The respondent no. 2 was
granted regular bail by the Trial Court on 13.11.2014 while
imposing necessary conditions on him. It was alleged by the
counsel for the petitioner that after the grant of the regular bail to
the respondent no.2, the petitioner threatened her by sending
SMSs, making calls and also threatened her at the bus stand and on
these lines complaint was lodged by her 10/11.12.2014 by
furnishing the necessary details to the police officials. In an
application for cancellation of bail, conduct subsequent to release
on bail and the supervening circumstances alone are relevant and
important. In the present case, nothing has emerged post the grant
of bail to the respondent no. 2, so as to cancel the bail granted to
him by the Trial Court. Therefore, the necessary grounds which is
to be considered while granting cancellation of bail are not made
out in the present case.
9. As far as contention of the counsel for the petitioner that regular
bail was granted by the Trial Court, though the application was
only moved for grant of interim bail for 2 months holds no ground
as the order dated 13.11.2014 granting regular bail was a well
reasoned order and all the material particulars have been properly
dealt with by the court concerned while granting the bail. There is
nothing on record which satisfies the court to cancel the bail
granted on 13.11.2014.
10. On the basis of the above facts, it is observed that there is no need
for any interference in the impugned order passed by the Trial
Court and hence, the petition is accordingly dismissed.
11. Accordingly, the present petition is dismissed.
SANGITA DHINGRA SEHGAL, J
NOVEMBER 17, 2017 gr//
