Mr. Maqsood Ahmad Khan vs State
2019 Latest Caselaw 5896 Del

$~56
*      IN THE HIGH COURT OF DELHI AT NEW DELHI

                                                  Date of decision: 22.11.2019

+      BAIL APPLN. 2906/2019
       MR. MAQSOOD AHMAD KHAN                ..... Petitioner
                   Through: Mr. B.L. Madhukar, Adv.
                          versus
       STATE                                              ..... Respondent
                          Through:      Mr. Hirein Sharma, APP for State
                                        with SI Pankaj Thakran, PS - Sarai
                                        Rohilla
                                        Mr. Muntazir Mahendi, Adv. for
                                        complainant with parents of
                                        prosecutrix

       CORAM:
       HON'BLE MR. JUSTICE SURESH KUMAR KAIT

                          J U D G M E N T (ORAL)

CRL.M.A. 40915/2019 (Exemption)

1. Allowed, subject to all just exceptions.

2. This application is, accordingly, disposed of.

BAIL APPLN. 2906/2019

3. The present application is filed under Section 438 Code of Criminal

Procedure, 1973 (Cr.P.C.) for grant of anticipatory bail.

4. The admitted facts of the present case are that in the aforesaid FIR,

the charge-sheet was filed without arresting the petitioner. The summons

were served one day prior to the date of hearing which was fixed as

18.10.2019 and on the said date, application for exemption was filed which

was opposed and declined by the learned Additional Chief Metropolitan

Magistrate ('ACMM') and NBW was issued against the petitioner. Since in

the FIR Section 376 IPC was added, the petitioner had moved an application

for anticipatory bail which was kept pending for hearing on 01.11.2019. On

the said date, the petitioner moved an application for staying the NBWs

issued against the petitioner till the disposal of the anticipatory bail,

however, same was dismissed on 01.11.2019 and the application for

anticipatory bail was also declined by the court of learned Additional

Sessions Judge, Tis Hazari Courts, Delhi.

5. Learned counsel appearing on behalf of the petitioner submits that on

the same day i.e. 01.11.2019 finding absence of the petitioner, the learned

Trial Court did not further issue NBWs against the petitioner because the

case file was with the Sessions Court and the next date of hearing was fixed

for 14.11.2019. On the said date, finding absence of the petitioner, the

learned Trial Court had issued NBWs against the petitioner.

6. Thereafter, the petitioner preferred to file the anticipatory bail before

this Court which was listed for 15.11.2019, however, the same was

withdrawn with liberty to file afresh.

7. Learned counsel further submits that the petitioner had apprehension

of his arrest in consequence of the NBWs issued against him as the

petitioner wanted to appear before the Trial Court bonafidely to prove his

defence that the allegation and the story in the FIR is totally false,

fabricated, frivolous, concocted and with a view to extort money from the

petitioner to settle the matter with the petitioner of the previous FIR bearing

no. 456/2018 lodged against the minor son of petitioner.

8. He further submits that originally, the abovementioned FIR was

registered on the false and frivolous allegations of the complainant, wherein

she has alleged that she had previously lodged FIR No. 0456/18 under

Sections 376/506 IPC and Section 6 of POCSO Act, registered against one

Faizan Ahmed (who is minor son of the present petitioner). It is alleged by

the complainant in present case/FIR that on 18.02.2019 at 7.00 PM, the

petitioner along with his nephew Maqsood Ahmad, on seeing the

complainant, started raising vulgar and obscene instigations towards her.

Whenever she comes out of the house, he always follow her and shows his

private parts and also says to the complainant to give statement in his favour

in the court, otherwise the complainant would be killed and the case will be

closed of its own.

9. It is further alleged by the complainant that on 17.02.2019, in the

morning at about 7.15 AM, when she was going downstairs, the petitioner

covered/closed her face and touched her private parts of body with oblique

intentions and stated, she should accompany him for having physical

relations with him.

10. Learned counsel for petitioner submits that with these allegations, the

complainant got her complaint lodged with the police, apprehending acid

attack on her at any point of time and as such, she made complaint against

the petitioner and Maqsood Ahmad.

11. Learned prosecutor appeared on behalf of the State alongwith Mr.

Muntazir Mehendi, learned counsel for the complainant admitted that the

charge sheet was filed without arrest of the petitioner. Thereafter, he

appeared in Court. However, the date on which he did not appear, NBWs

were issued against him. He filed an application for recalling of NBWs,

which had also been dismissed. However, instead of challenging the

dismissal order, the petitioner has filed application under Section 482

Cr.P.C. seeking anticipatory bail.

12. As submitted by the learned counsel for petitioner that after issuing

NBWs, he had apprehension that the Court may take him into custody, he

moved an application for recalling of the NBWs, however, the same had

been rejected. The charge sheet was filed without arrest of the petitioner and

on one date, when he could not appear for which he moved an application

for exemption, but the application was rejected and NBWs issued.

13. In view of the above facts and circumstances, I am of the view that

justice would be met if order of NBWs is set aside. Accordingly, I hereby

set aside the impugned order and direct the learned Trial Court to admit the

petitioner on bail on furnishing personal bond in the sum of ₹25,000/- with

one surety of the like amount to its satisfaction.

14. The petition is accordingly allowed and disposed of.

(SURESH KUMAR KAIT) JUDGE

NOVEMBER 22, 2019 PB