Ali Sher Saifi vs State
2020 Latest Caselaw 415 Del

*       IN THE HIGH COURT OF DELHI AT NEW DELHI
                                          Date of Decision : 22.01.2020
+       BAIL APPLN. 67/2020
        Ali Sher Saifi                          ..... Petitioner

                            Through:      Mr. R. N. Gupta, Mr. Sajid
                                          Ansari, Mr. Firoz Iqbal Khan
                                          & Mr. Amit Kumar Pandey,
                                          Advocates
                            versus

        THE STATE OF DELHI                             ..... Respondent

                            Through:      Mr G.M.Farooqui, APP for
                                          State alongwith W/SI Jyoti,
                                          P.S. Model Town.

                                          Mr. Ajay Kumar P. Paniya,
                                          Ms. Pallavi P. Paniya. Mr.
                                          Akash Sethi, Ms. Nikita
                                          Garg, Mr. Paras and Mr.
                                          Imtiaz, Advs for complainant.
CORAM:
    HON'BLE MR. JUSTICE BRIJESH SETHI
                            JUDGMENT

BRIJESH SETHI, J (ORAL)

Crl. M.A. No. 1308/2020 (for filing additional documents).

Allowed.

Application stands disposed of.

BAIL APPLN. 67/2020

1. Vide this order, I shall dispose of anticipatory bail application

Bail Appl. no. 67/2020 Page no.1 filed on behalf of the petitioner Ali Sher Saifi under section 438

Cr.P.C in FIR No. 422/19, u/s. 344/376-D//506/34 IPC

2. The Ld. Counsel for the petitioner has submitted that FIR has

registered on the written complaint dated 03.10.2019 of the

prosecutrix/ complainant in which she has alleged that she is living

with her mother at her residence and she is helping her mother in her

business. The mother of the prosecutrix came in contact with Naresh

Kumar Pandit and it is alleged that Naresh Kumar Pandit starting

influencing the mother of the prosecutrix to do some pooja, rituals

etc. so that the departed soul of petitioner's father can rest in peace.

Naresh Kumar Pandit introduced prosecutrix's mother to Roop

Kishore Gupta @ Chhotu. Roop Kishore Gupta @ Chhotu

introduced prosecutirx's mother to Bablu Yadav and the petitioner.

It is further case of the prosecutrix that one day when prosecutrix's

mother was not at home, the petitioner sexually assaulted the

prosecutrix and threatened her that if she discloses this fact to

anyone, then the petitioner alongwith Roop Kishore Gupta and

Naresh Kumar Gupta will kill prosecutrix's mother.

3. In her complaint petitioner further submitted that on 17/18

Bail Appl. no. 67/2020 Page no.2 May, 2019 Bablu Yadav @ Salim came to the house of prosecutrix

alongwith the petitioner and committed rape with the prosecutrix

and again gave her threat. It is also alleged that while committing

sexual intercourse with the prosecutrix, the petitioner and Bablu

Yadav have made MMS of the said act and they threatened the

prosecutrix and illegally confined her at flat no.263, Pocket B,

Ground Floor, Narela.

4. It is submitted by Ld. Counsel that the actual fact as to why

the prosecutrix has lodged false FIR against accused persons is that

an F.I.R. bearing No.415/2019 dated 29.09.2019 was lodged by wife

of the co-accused Roop Kishore against the prosecutrix's mother

and her servant for committing offences under section 328, 354-B,

34 of Indian Penal Code and section 8 of the Protection of Children

from Sexual Offences Act, 2012. Thus, as a counter blast,

prosecutrix has lodged false FIR against the accused persons. It is

submitted that on 25.05.2019, the prosecutrix in presence of her

mother married co-accused Bablu Yadav and thereafter she started

residing with the co-accused Bablu Yadav as her legally wedded

wife. In the said marriage, the petitioner was one of the Witnesses.

Bail Appl. no. 67/2020 Page no.3 The prosecutrix lived with the co-accused Bablu Yadav as her

legally wedded wife till 10.09.2019. It is submitted that the

allegation of the prosecutrix that she was illegally confined by the

co-accused Bablu Yadav and petitioner is baseless, malaflde and

concocted. There is evidence on records to show that the prosecutrix

married Bablu Yadav out of her free will/consent and in presence of

her mother and without any threat or coercion. Original photographs

of co-accused Bablu Yadav and prosecutrix, which show that they

were legally and happily wedded, and the transcript of the telephone

conversation between prosecutrix and her mother were filed by the

co-accused Bablu Yadav before the Ld. Trial court alongwith his

bail application which were taken into consideration by the Ld. Trail

court, while granting regular bail to co-accused Bablu Yadav.

5. It is submitted that the reason for filing false FIR by the

prosecutrix against the petitioner is that on 17.12.2018, the

petitioner entered into an agreement with the prosecutrix's mother

for purchasing the basement of property bearing No.D-18, Ground

Floor, GTK Road, Mahendru Enclave, Azadpur, Model Town,

Delhi. The prosecutrix's mother agreed to sell the said property to

Bail Appl. no. 67/2020 Page no.4 the petitioner for a total sale consideration of Rs.35.00 lakhs and on

17.12.2018 itself vide Cheque No.214648, the petitioner paid an

advance amount of Rs.5 lakhs to the prosecutrix's mother. It was

agreed that rest of the sale consideration amount i.e. Rs.30.00 lakhs

would be paid within a period of 8 months when the title documents

of the said property will be registered. The prosecutrix and her

mother have become greedy and in order to forfeit the advance

amount paid by the petitioner, a false F.I.R. has been registered

against the petitioner. As soon as the petitioner came to know that a

false F.I.R. has been lodged by the prosecutrix against the petitioner,

the petitioner filed application for anticipatory bail before the Ld.

Sessions Court North, Delhi. However, the Ld. Additional Sessions

Judge (04) North vide its order dated 23.12.2019 dismissed the

anticipatory bail application of the petitioner.

6. It is further submitted that on 24.12.2019, the Ld. Additional

Sessions Judge (04) North vide its order has extended the interim

protection granted to co-accused Naresh Kumar Pandit till the next

date of hearing i.e. on 24.01.2020. The Ld. Trial court while

extending interim protection has observed as under :

"...it does not appear that IO has carried through

Bail Appl. no. 67/2020 Page no.5 investigation, on each and every aspect of the allegations leveled. Admittedly no corroborative material has been collected so far. Since the IOP has not been able to 'collect the same insptie of sending ,the copy of previous order dated 25.11.2019 to DCP concerned, I am of the considered opinion that indulgence of Joint Commissioner of Police concerned is required in the matter. Hence copy of order be sent to Joint Commissioner of Police concerned to ensure that thorough and fair investigation is carried out on each and every aspect of allegations leveled and Investigating Agency should take a clear stand qua the corroborative material.

The interim protection granted to the applicant is extended till next date of hearing. However, the applicant is directed to thoroughly cooperate in the investigation. "

7. It is submitted that Ld. Trial court while dismissing the

anticipatory bail application of the petitioner has failed to take into

consideration the fact that bare perusal of the FIR reveals that there

are general, vague and omnibus allegations made by the prosecutrix

against the accused persons including petitioner. The Ld. Trial court

also completely overlooked the fact that after the FIR was lodged

against the accused persons, the prosecutrix was asked to go for

medical examination, but she refused to give her consent for medical

examination, and this clearly shows that the entire FIR lodged by the

prosecutrix is false and fabricated. The Ld. Trial court while passing

the dismissal order failed to appreciate that on a similar set of

Bail Appl. no. 67/2020 Page no.6 allegations, co-accused Bablu Yadav has already been enlarged on

bail by the Ld. Trial court and therefore, the petitioner is also entitled

to get the benefit of anticipatory bail on the ground of parity. The

police has completed the investigation in FIR no.422/ 2019 and final

report/challan has already been filed by the police, and therefore,

there is no necessity for custodial interrogation of the petitioner. It is,

therefore, prayed that petitioner be granted anticipatory bail and he

be released in the event of his arrest.

8. The application is opposed by the Ld. APP for the State on

the ground that the allegations against the petitioner are serious in

nature. The victim was raped by the petitioner/ accused and was also

threatened by him. He has, therefore prayed for dismissal of the bail

application.

9. I have considered the rival submissions. The present case was

registered on the complaint of Victim/ prosecutrix. She has alleged

that after death of her father the household affairs as well as the

business was managed by her mother. Meanwhile, one Naresh

Sharma @ Pandit came in contact of the mother of victim and

influenced her mother for performing pooja-path and other rituals so

Bail Appl. no. 67/2020 Page no.7 that the departed soul of her husband can rest in peace. Mr. Naresh

Sharma @ Pandit introduced them to one Roop Kishore @ Chotu

and both of them with their dishonest and malafide intention started

inducing her mother and fraudulently got transferred immovable

properties from her in favour of third party. They further introduced

them to petitioner Ali and other co-accused Babloo Yadav @

Saleem @ Yatender. In July 2019, petitioner forcefully made sexual

inter course with the victim at her home situated at Mahendru

Enclave in the absence of her mother and later on Babloo Yadav @

Saleem @ Yatender also forcefully made sexual inter course with

her and threatened her that in case she would report the matter to

anyone, they would kill her as well as her mother. After that

petitioner arranged fake marriage of victim with Babloo Yadav @

Saleem @ Yatender and forcefully took her to Flat No. 263, Sec. B-

2, Ground Floor, G Block, Narela Delhi where she was kept in

illegal confinement. Co-accused Babloo Yadav @ Saleem @

Yatender and petitioner have forcibly committed sexual intercourse

with her one by one under threat and accused Naresh Sharma @

Pandit and Roop Kishore Gupta were kept as a guard outside the

Bail Appl. no. 67/2020 Page no.8 flat. They threatened her that if she would complaint against them,

they would release the MMS, which they had made when petitioner

and co-accuseds Babloo Yadav @ Saleem had raped her.

10. During investigation statement of the complainant/

prosecutrix u/s 161 CrPC was recorded wherein she has mentioned

that she did not remember the exact date of incident but it took place

in the month of May, June and July, 2019. Accused Roop Kishore,

Naresh Kumar Pandit and petitioner Alisher managed to get

marriage of the prosecutrix solemnized with the co-accused Bablu

Yadav @ Salim @ Yatender Singh on 25.07.19 against her consent.

After that they took her to Narela where petitioner and Bablu Yadav

raped her. She did not have her Mobile phone since 25.07.19.

Victim has stated in her statement recorded u/s 164 Cr.PC that the

petitioner has made sexual relations with her in the month of May

2019 on the pretext of removing all the bad and evil things and

bringing prosperity in her business. Petitioner did all this at the

behest of Naresh Pandit. In July 2019, Petitioner and co-accused

Bablu made physical relations with her and at that time accused

Naresh Pandit and accused Roop Kishore stood at the gate so that no

Bail Appl. no. 67/2020 Page no.9 one could enter. As per the analysis of call detail record of the

accused persons, presence of the accused Roop Kishore, Naresh

Kumar Pandit and petitioner Alisher, has been ascertained in the

area of Model Town and in Narela during the month of May, June

and July, 2019.

13. During Investigation statement u/s 161 Cr.PC of victim's

mother was recorded and she stated that Naresh Pandit hatched a

criminal conspiracy so that petitioner can have physical relations

with the prosecutrix. After that Naresh Pandit conspired with Roop

Kishore to get her daughter evicted from her property. Naresh

Pandit and Roop Kishore used to come to her house. They used to

give them some intoxicants in food and they came to know about

this fact later on. According to prosecution, the mother of the

prosecutrix has never entered into any agreement for selling the

basement of property bearing No D-18, Ground Floor, GTK, Delhi.

She has denied of having any knowledge about the same. The

mother of the prosecutrix was not aware as to why and for what

purpose the amount of Rs 5 lakh was deposited in her bank account

and when it came to her knowledge, she returned the same. She was

Bail Appl. no. 67/2020 Page no.10 unaware about the ulterior motives of the accused persons.

15. During the investigation, it was revealed that the accused

Bablu Yadav @ Saleem used to give the prosecutrix his own mobile

phone to communicate with her mother and she was only allowed to

talk in his presence and no separate mobile phone was provided to

the prosecutrix. During investigation, Flat No. 263, Sec. B-2,

Ground Floor, G Block, Narela Delhi was also visited and it was

revealed on local enquiry that prosecutrix lived in that flat with

petitioner and Bablu and she used to rarely come out from that flat

and whenever she stepped out, she was not conscious and she used

to talk very little. The petitioner Alisher is absconding and NBWs

were issued against him by the learned court of Sh. Sachin, Gupta

vide order dated 28.11.19. Proclamation u/s. 82 Cr.PC has also been

issued against him by the Ld. Trial Court.

16. The above facts appearing on record which are very serious in

nature, prima facie suggest that the sexual relations were established

with the prosecutrix by the petitioner without her consent and under

threat. She was forced to marry co-accused Bablu Yadav. There are

allegations that complainant was kept in illegal confinement at Flat

Bail Appl. no. 67/2020 Page no.11 no.263, Pocket B, Ground Floor, Narela, where co-accused Bablu

Yadav and petitioner forcibly committed sexual intercourse with

her. The petitioner is also absconding and not joining the

investigation and proceedings under Section 82 Cr.PC have been

initiated against him. In these circumstances, no grounds for

anticipatory bail are made out. The anticipatory bail application is,

therefore, dismissed.

                                             BRIJESH SETHI, J

JANUARY 22, 2020
Amit




Bail Appl. no. 67/2020                                    Page no.12