Naushad vs State Nct Of Delhi
2020 Latest Caselaw 2467 Del

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*      IN THE HIGH COURT OF DELHI AT NEW DELHI
%                                    Reserved on:      17.08.2020
                                   Pronounced on:     24.08.2020
+      BAIL APPLN. 1390/2020
       NAUSHAD                                            ..... Applicant
                      Through:        Mr. Ravindra S. Garia,
                                      Mr. Shashank Singh and
                                      Mr. Subraph Kumar Roshan,
                                      Advocates
                     versus
       STATE OF NCT OF DELHI & ANR              ..... Respondents
                     Through: Ms. Meenakshi Dahiya, APP with
                               SI Ashish Sharma
                               Mr. S.P. Sharma, Advocate for
                               Complainant
       CORAM:
       HON'BLE MS. JUSTICE JYOTI SINGH
                             JUDGEMENT

1. This is an Application under Section 438 Cr.PC for grant of Anticipatory Bail in FIR No. 013/2020 dated 08.01.2020 registered at P.S. Burari, District: North under Sections 376/506 and 34 IPC.

2. Briefly stated, the case of the prosecution is that a Complaint was filed by the Complainant in which it was alleged that her marriage was solemnized with Rasheed on 12.11.2012 as per Muslim Rites. Family members of her husband resided jointly in the property, which is owned by her eldest brother-in-law, Shamshad. Her husband does the work of denting and painting and earns Rs. 25,000/- to 30,000/- every month. He hands over his income to his brothers, namely, Shamshad and Naushad and follows their dictate on every issue. Complainant was dependent even

for her daily expenses on her brothers-in-law and whenever she asked them for money for expenses, they showed bad intention towards her. The husband of the Complainant never gave her any money and even when requested to pay for the daily needs of the children, he used to beat her. It is stated in the Complaint that the house was actually purchased by her husband, but is in the name of Shamshad. Complainant resided at the first floor of the house and on the same floor, her brother-in-law Shamshad was living. Applicant resides at the ground floor of the said property.

3. As the Complaint goes, on 25.05.2015, at around 1 p.m. while the husband of the Complainant was at his shop and she was sleeping alone, her brother-in-law Shamshad knocked on the door and when she permitted him in, he raped her. He also threatened her that if she revealed the incident to anyone, her children will be murdered and he would make viral, the obscene pictures that he had taken in the room. On 18.06.2015, at around 12 p.m. Shamshad again raped her under the threat of posting her pictures on the internet. It is alleged that Shamshad had been raping her from the last six months, against her wish and on 20.12.2015, the Applicant raped her.

4. On 13.04.2016, at about 12.30 p.m. when the wife of Naushad was not in the house, taking the opportunity, Naushad had physical relations with her, against her will and threatened that in case she revealed the physical relationships of Shamshad with her and complained about it to anyone, he would kill her children. She then complained to her husband on 15.08.2016, however, he only supported his brothers and abused and

physically man-handled the Complainant. At about 1.30 p.m. on 06.12.2019, taking the opportunity of his wife not being home, Naushad again had physical relations with her, threatening her of dire consequences and on the said date, Complaint was filed and investigation was taken up by W/SI.

5. On the basis of the above Complaint, FIR was registered on 08.01.2020 under Sections 376/506/34 IPC.

6. Applicant filed an Application for grant of Anticipatory Bail before the Court of Sessions on 06.02.2020, being Bail Application No. 741/2020, but the same was dismissed on 07.02.2020. The Sessions Court has dismissed the Application on the ground that serious allegations have been made by the Complainant against the Applicant, who is the brother- in-law (Jeth). Investigation is not complete and the custodial interrogation of the Applicant is required for recovery of the mobile phone in which the obscene photographs and video have been prepared.

7. Contention of the learned counsel for the Applicant is that the applicant is an innocent person and has been falsely implicated in the instant case. Applicant has clear antecedents with deep roots in the Society and has never been involved in any criminal case, prior to the alleged incidents. Perusal of the FIR reveals that as far as the first alleged incident is concerned, the allegation is only against Shamshad and not against the Applicant. Similarly, even the alleged incident of 20.05.2015 has no connection with the Applicant. The first allegation against the Applicant is that he allegedly raped the Complainant on 20.12.2015.

From the said date, according to the Complainant herself, she waited till 15.08.2016 to confide in her husband about the alleged incident. The last incident is alleged to have occurred on 06.12.2019 and there is no allegation between 20.12.2015 and 06.12.2019.

8. He further points out that the family of the Applicant comprises of his mother and his two elder brothers with their wives and children including the Applicant, his wife and children. Most of the time, all resided in the same house as a joint family. The site plan of the house which is placed on record would show that it is a small property of about 40 yards, built up area, with two floors, each floor containing two rooms. The back room is about 10'x11' in size and the front room is about 9'x 9' in size. Looking at the size of the property and the number of people residing therein, which are in close proximity to each other, it is highly improbable that the Applicant could have indulged in the alleged incidents of rape, without the others in the house getting to know about it.

9. It is submitted that the story of the Complainant that she informed her husband and he did not take any action is also unbelievable as no husband would permit such acts to be committed by anyone on his wife. Even assuming the story of the prosecution that the husband of the Complainant supported his brothers, it cannot be believed that the wife of the Applicant would have supported any such act, which were being repeated, as alleged by the Complainant.

10. The husband of the Complainant, it is pointed out, has filed an Affidavit along with this Petition wherein he has clearly deposed on oath

that the time of the alleged incidents mentioned in the FIR is false and imaginary as at the relevant time, the Complainant used to stay in Meerut and to substantiate the same, he has placed on record copy of a Certificate dated 16.03.2020 issued by Jamia Arabia Sarwari Lilbanat, Meerut, certifying that the daughter of the Complainant was studying in class nursery in the said Madrasa, which is in District Meerut, from May 2018 and while she was studying in LKG in the year 2019-2020, she left the Madrasa in August 2019 due to some reason. This is itself a pointer to the falsity of the allegations in the FIR.

11. Learned counsel further points out that as per the Status Report during the course of investigation on 08.01.2020, the Complainant was taken for medical examination to Aruna Asaf Ali Hospital, but during the medical examination she refused for her internal medical examination.

12. Learned counsel points out that it is clearly stated in the Status Report that the Applicant has joined investigation on 15.07.2020 and 16.07.2020 and his potency test has also been conducted at Aruna Asaf Ali Road. He submits that there is nothing to recover from the Applicant and he undertakes to join investigation as and when called for.

13. It is highlighted by Mr. Garia that the allegations are false and the motive behind making such false allegations is that the Complainant wants the house to be transferred on her name, as according to her it was purchased from the income of her husband, but illegally transferred in the name of his eldest brother Shamshad. It is submitted that the Complainant's husband lives in a separate rented accommodation, at

present. Complainant had earlier threatened that if the house was not transferred in her name, she would falsely implicate the Applicant and his elder brother. This is evident from the reading of the FIR, wherein it is stated as under:

"That my husband has even made the house purchased from his income in the name of his elder brother Shamshad"

14. Learned counsel strenuously emphasizes on the time gap between the first alleged incident and the lodging of the FIR and contends that the delay in lodging the complaint is itself fatal to the case of the prosecution, as repeatedly held by several Courts.

15. Ms. Meenakshi Dahiya learned Additional Public Prosecutor has opposed the application on the ground that the allegations made against the Applicant are very serious, as he is alleged to have committed repeated rape on the complainant, more so being her brother-in-law. It is submitted that the Complainant has made allegations against the Applicant in her complaint and has reiterated her stand in the Statement under Section 164 Cr.PC, before the Magistrate. She submits that the Chargesheet has not been filed and the Complainant being a vulnerable, chances are of threats being extended to her, in case the Bail is granted to the Applicant.

16. Insofar as the recovery of the Mobile Phone is concerned, it is submitted that the allegations of making the alleged video clippings or obscene photographs is not against the Applicant, so no recovery is to be

made from him on that count. Ms. Dahiya submits that Applicant has joined investigation on 15.07.2020 and 16.07.2020 and is cooperating.

17. Learned counsel for the Complainant vehemently opposed the Bail Application. He submits that the Applicant is guilty of a very heinous act inasmuch as being the real brother-in-law he committed the act of rape on the Complainant, repeatedly. He submits that the Complainant did not initially lodge any Complaint as she was being threatened by the Applicant and her eldest brother-in-law, that they would kill her children. Fearing the life of her children, the Complainant could not gather the courage to make a complaint against the Applicant.

18. She made efforts to bring the incidents to the notice of her husband, but unfortunately, he also did not support her and favoured his brothers. It is argued that when the Applicant raped her on 06.12.2019, Complainant decided that she would not accept it anymore and somehow gathered courage and made a complaint against the Applicant. Therefore, the delay in lodging the complaint should not come in the way of the Complainant getting justice and the Applicant is not deserving of being granted Anticipatory Bail. Learned counsel for the Complainant contends that the recoveries are yet to be affected from the Applicant as the mobile phones have not been recovered and therefore his custodial interrogation is necessary.

19. Complainant had appeared in the Court and submitted that she has moved out of the matrimonial home and is presently living at her parental house, along with her children.

20. I have heard the learned counsel for the Applicant and the learned counsel for the Complainant, as well as the learned APP for the State.

21. At the outset I may note that the allegations in the present FIR are of the Applicant raping the Complainant and the law will take its own course as far as filing of the Chargesheet and subsequent proceedings are concerned. The only question that arises before this Court is whether in the circumstances of this case, the Applicant is entitled to Anticipatory Bail. The complaint has been made after more than 3 years from the date of the first alleged incident i.e. 30.04.2016, though no doubt the second incident is of 06.12.2019. Suffice would it be to state the Complainant may have had a valid reason for delay, but this Court would not at this stage, enter into the said controversy and this is a matter of trial, if and when held. Contentions of the Petitioner relating to the size of the family, the site plan of the house, the alleged property dispute, are again matters of trial and no observations are being made on these issues in the present judgement. The main plank of the argument of the Complainant as well as the State is the seriousness of the allegations made against the Applicant, being one relating to the alleged rape of the Complainant, more particularly on account of the relationship between the Applicant and the Complainant.

22. Before proceeding to delve on the present Application and its facts and circumstances, it is important to see the law as it has developed through judicial pronouncements relating to grant of Anticipatory Bail. The starting point of the discussion can only be the judgement of the Constitution Bench of Supreme Court in Gurbaksh Singh Sibbia vs.

State of Punjab (1980) 2 SCC 565. Court highlighted that Section 438 Cr.PC is concerned with the personal liberty of an individual and has its genesis/conceptualization under Article 21 of the Constitution, which in turn relates to the personal liberty of a person. The provision thus calls for a liberal interpretation. The provision of Anticipatory Bail is a pre- arrest process wherein a person in whose favour the order is issued is released on Bail, when arrested. Supreme Court further observed that an individual is entitled to the benefit of presumption of innocence since on the date of the Application for Anticipatory Bail he is not convicted of the offence in respect of which he seeks Bail. The beneficial provision should be saved and not jettisoned and when no restrictions have been imposed by the provisions of Section 438 of the Code, by the Legislature, Courts should lean against the imposition of unnecessary restrictions.

23. There is therefore, in my view, an immunity provided by the Legislature and judicial pronouncements, against confinement, which must be kept in mind while considering an application for Anticipatory Bail. Relevant paras of the judgement are as under:

"26. We find a great deal of substance in Mr. Tarkunde's submission that since denial of bail amounts to deprivation of personal liberty, the court should lean against the imposition of unnecessary restrictions on the scope of Section 438, especially when no such restrictions have been imposed by the legislature in the terms of that section. Section 438 is a procedural provision which is concerned with the personal liberty of the individual, who is entitled to the benefit of the presumption of innocence since he is not, on the date of his application for anticipatory bail, convicted of the offence in respect of which he seeks bail. An over-

generous infusion of constraints and conditions which are not to be found in Section 438 can make its provisions constitutionally vulnerable since the right to personal freedom cannot be made to depend on compliance with unreasonable restrictions. The beneficent provision contained in Section 438 must be saved, not jettisoned. No doubt can linger after the decision in Maneka Gandhi v. Union of India, (1978) 1 SCC 248, that in order to meet the challenge of Article 21 of the Constitution, the procedure established by law for depriving a person of his liberty must be fair, just and reasonable. Section 438, in the form in which it is conceived by the legislature, is open to no exception on the ground that it prescribes a procedure which is unjust or unfair. We ought, at all costs, to avoid throwing it open to a Constitutional challenge by reading words in it which are not to be found therein.

xxx xxx xxx

31. In regard to anticipatory bail, if the proposed accusation appears to stem not from motives of furthering the ends of justice but from some ulterior motive, the object being to injure and humiliate the applicant by having him arrested, a direction for the release of the applicant on bail in the event of his arrest would generally be made. On the other hand, if it appears likely, considering the antecedents of the applicant, that taking advantage of the order of anticipatory bail he will flee from justice, such an order would not be made. But the converse of these propositions is not necessarily true. That is to say, it cannot be laid down as an inexorable rule that anticipatory bail cannot be granted unless the proposed accusation appears to be actuated by mala fides; and, equally, that anticipatory bail must be granted if there is no fear that the applicant will abscond. There are several other considerations, too numerous to enumerate, the combined effect of which must weigh with the court while granting or rejecting anticipatory bail. The nature and seriousness of the proposed charges, the context

of the events likely to lead to the making of the charges, a reasonable possibility of the applicant's presence not being secured at the trial, a reasonable apprehension that witnesses will be tampered with and "the larger interests of the public or the State" are some of the considerations which the court has to keep in mind while deciding an application for anticipatory bail. The relevance of these considerations was pointed out in The State v. Captain Jagjit Singh, AIR 1962 SC 253 : (1962) 3 SCR 622 : (1962) 1 Cri LJ 216, which, though, was a case under the old Section 498 which corresponds to the present Section 439 of the Code. It is of paramount consideration to remember that the freedom of the individual is as necessary for the survival of the society as it is for the egoistic purposes of the individual. A person seeking anticipatory bail is still a free man entitled to the presumption of innocence. He is willing to submit to restraints on his freedom, by the acceptance of conditions which the court may think fit to impose, in consideration of the assurance that if arrested, he shall be enlarged on bail."

24. Reading of para 31 above shows that certain principles were laid down by the Supreme Court, which have to be kept in the background while considering a Bail Application under Section 438 Cr.PC. The objective behind the principles is clearly to ensure and secure the attendance of the accused at the trial and therefore the test to be applied is the probability that the Applicant will appear during the trial and not evade it. Bail cannot be denied as a measure of punishment only on account of the allegations levelled. The Court has to also consider the possibility of the Applicant influencing the witnesses, extending threat to them, tampering with evidence etc.

25. Supreme Court in the said judgement has also interpreted the expression 'may, if it thinks fit' occurring in Section 438(1) of the Code and observed that a discretion is given to the Court to exercise the power and once a discretion has been bestowed, merely because the charge levelled is a serious one, may not be the only factor, by itself, to refuse Bail.

26. It would be useful to refer to another judgement of the Supreme Court in this context. In the case of Siddharam Satlingappa Mhetre v. State of Maharashtra, (2011) 1 SCC 694, Supreme Court succinctly brought out all the aspects that need to be considered while granting Anticipatory Bail, relying upon the judgment in Gurbaksh Singh (supra). It needs a mention that in Crl. Appeal Nos. 1134-1135/2015 titled Bhadresh Bipinbhai Sheth vs. State of Gujarat & Anr. decided on 01.09.2015, another Bench of the Supreme Court culled out the principles formulated by the Supreme Court in the case of Siddharam (supra). The principles so culled out are as under:

"(i) The complaint filed against the accused needs to be thoroughly examined, including the aspect whether the complainant has filed a false or frivolous complaint on earlier occasion. The court should also examine the fact whether there is any family dispute between the accused and the complainant and the complainant must be clearly told that if the complaint is found to be false or frivolous, then strict action will be taken against him in accordance with law. If the connivance between the complainant and the investigating officer is established then action be taken against the investigating officer in accordance with law.

(ii) The gravity of charge and the exact role of the accused must be properly comprehended. Before arrest, the arresting officer must record the valid reasons which have led to the arrest of the accused in the case diary. In exceptional cases, the reasons could be recorded immediately after the arrest, so that while dealing with the bail application, the remarks and observations of the arresting officer can also be properly evaluated by the court.

(iii) It is imperative for the courts to carefully and with meticulous precision evaluate the facts of the case. The discretion to grant bail must be exercised on the basis of the available material and the facts of the particular case. In cases where the court is of the considered view that the accused has joined the investigation and he is fully cooperating with the investigating agency and is not likely to abscond, in that event, custodial interrogation should be avoided. A great ignominy, humiliation and disgrace is attached to arrest. Arrest leads to many serious consequences not only for the accused but for the entire family and at times for the entire community. Most people do not make any distinction between arrest at a pre-conviction stage or post-conviction stage.

(iv) There is no justification for reading into Section 438 CrPC the limitations mentioned in Section 437 CrPC. The plentitude of Section 438 must be given its full play. There is no requirement that the accused must make out a "special case" for the exercise of the power to grant anticipatory bail. This virtually, reduces the salutary power conferred by Section 438 CrPC to a dead letter. A person seeking anticipatory bail is still a free man entitled to the presumption of innocence. He is willing to submit to restraints and conditions on his freedom, by the acceptance of conditions which the court may deem fit to impose, in consideration of the assurance that if arrested, he shall be enlarged on bail.

(v) The proper course of action on an application for anticipatory bail ought to be that after evaluating the averments and accusations available on the record if the court is inclined to grant anticipatory bail then an interim bail be granted and notice be issued to the Public Prosecutor. After hearing the Public Prosecutor the court may either reject the anticipatory bail application or confirm the initial order of granting bail. The court would certainly be entitled to impose conditions for the grant of anticipatory bail. The Public Prosecutor or the complainant would be at liberty to move the same court for cancellation or modifying the conditions of anticipatory bail at any time if liberty granted by the court is misused. The anticipatory bail granted by the court should ordinarily be continued till the trial of the case.

(vi) It is a settled legal position that the court which grants the bail also has the power to cancel it. The discretion of grant or cancellation of bail can be exercised either at the instance of the accused, the Public Prosecutor or the complainant, on finding new material or circumstances at any point of time.

(vii) In pursuance of the order of the Court of Session or the High Court, once the accused is released on anticipatory bail by the trial court, then it would be unreasonable to compel the accused to surrender before the trial court and again apply for regular bail.

(viii) Discretion vested in the court in all matters should be exercised with care and circumspection depending upon the facts and circumstances justifying its exercise. Similarly, the discretion vested with the court under Section 438 CrPC should also be exercised with caution and prudence. It is unnecessary to travel beyond it and subject the wide power and discretion conferred by the legislature to a rigorous code of self-imposed limitations.

(ix) No inflexible guidelines or straitjacket formula can be provided for grant or refusal of anticipatory bail because all circumstances and situations of future cannot be clearly visualised for the grant or refusal of anticipatory bail. In consonance with legislative intention, the grant or refusal of anticipatory bail should necessarily depend on the facts and circumstances of each case.

(x) We shall also reproduce para 112 of the judgment wherein the Court delineated the following factors and parameters that need to be taken into consideration while dealing with anticipatory bail:

(a) The nature and gravity of the accusation and the exact role of the accused must be properly comprehended before arrest is made;

(b) The antecedents of the applicant including the fact as to whether the accused has previously undergone imprisonment on conviction by a court in respect of any cognizable offence;

(c) The possibility of the applicant to flee from justice;

(d) The possibility of the accused's likelihood to repeat similar or other offences;

(e) Where the accusations have been made only with the object of injuring or humiliating the applicant by arresting him or her;

(f) Impact of grant of anticipatory bail particularly in cases of large magnitude affecting a very large number of people;

(g) The courts must evaluate the entire available material against the accused very carefully. The court must also clearly comprehend the exact role of the accused in the case.

The cases in which the accused is implicated with the help of Sections 34 and 149 of the Penal Code, 1860 the court should consider with even greater care and caution, because overimplication in the cases is a matter of common knowledge and concern;

(h) While considering the prayer for grant of anticipatory bail, a balance has to be struck between two factors, namely, no prejudice should be caused to free, fair and full investigation, and there should be prevention of harassment, humiliation and unjustified detention of the accused;

(i) The Court should consider reasonable apprehension of tampering of the witness or apprehension of threat to the complainant;

(j) Frivolity in prosecution should always be considered and it is only the element of genuineness that shall have to be considered in the matter of grant of bail and in the event of there being some doubt as to the genuineness of the prosecution, in the normal course of events, the accused in entitled to an order of bail".

27. Supreme Court in Bhadresh (supra), emphasized that in the case of Siddharam (supra), Court in para 1 highlighted the conflicting interests which need to be balanced while taking a decision, whether or not to grant Bail. Para 1 from the Report of Sidha Ram is as under:

"1. Leave granted. This appeal involves issues of great public importance pertaining to the importance of individual's personal liberty and the society's interest. Society has a vital interest in grant or refusal of bail because every criminal offence is the offence against the State. The order granting or refusing bail must reflect perfect balance between the conflicting interests, namely, sanctity of individual liberty and the interest of the society.

The law of bails dovetails two conflicting interests, namely, on the one hand, the requirements of shielding society from the hazards of those committing crimes and potentiality of repeating the same crime while on bail and on the other hand, absolute adherence to the fundamental principle of criminal jurisprudence regarding presumption of innocence of an accused until he is found guilty and the sanctity of individual liberty."

28. A conspectus of the rulings of the Supreme Court as referred to above leads this Court to a conclusion that what needs to be examined in the present Petition is not merely the seriousness of the allegations leveled, but also the circumstances that the Applicant, if released on bail shall not flee from justice and shall cooperate in the investigation. He shall not influence the witnesses or tamper with evidence, if and when the trial commences and shall participate in the same.

29. Status Report reveals that the Applicant has joined investigation on 15.07.2020 and 16.07.2020 and his potency test has been conducted. Applicant is alleged to have committed rape on 2 occasions, one of which dates back to 20.12.2015, while the Complaint was made only in 2019. There is no allegation against the Applicant that he made the obscene video clippings or the photographs, which allegations are against his elder brother. Thus, no recovery in this respect is to be made from the Applicant.

30. The Complainant is admittedly living at her parental home and has moved out of the matrimonial home. Her husband is residing separately in a rented accommodation. It is not the case of the prosecution that there is a probability of the Petitioner not joining further investigation or that

his custodial interrogation is required. No doubt the complainant has opposed the Bail on the ground that the allegations are serious in nature but as held by the Supreme Court that cannot be the sole criteria to deny Anticipatory Bail to the Applicant. Provisions of Section 438 Cr.PC have their genesis in Article 21 of the Constitution of India, which deals with liberty of an individual. It is the first principle of criminal jurisprudence that a man is presumed to be innocent till proven guilty.

31. Looking at the facts and circumstances of the case, I am of the view that the applicant is entitled to grant of Anticipatory Bail. Thus, in the event of the arrest of the Applicant, he shall be released on Bail, on his furnishing personal bonds in the sum of Rs.50,000/-, with surety of the like amount to the satisfaction of the SHO/IO of the concerned area, with the following conditions:

(a) Applicant shall appear for investigation before the Inquiry Officer as and when called upon to do so.

(b) Applicant shall cooperate in the investigation and shall not threaten or attempt to influence the witnesses or tamper with the evidence.

(c) Applicant shall not leave NCT of Delhi without the prior permission of the concerned IO.

(d) Applicant shall not contact the Complainant or extend any threat to her.

If any of the conditions for grant of Anticipatory Bail as aforesaid is violated by the Applicant the jurisdictional Court can cancel the Bail in accordance with law, even if the Bail is granted by this Court.

32. It is made clear that this Court has not expressed any opinion on the merits of the case and the observations were only limited to considering the present application for grant of Anticipatory Bail.

JYOTI SINGH, J th AUGUST 24 , 2020 rd