Delhi High Court
Subhash vs State (Nct Of Delhi) on 25 June, 2021
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CRL.M.C.1299/2021
Date of decision: 25th June, 2021
IN THE MATTER OF:
SUBHASH ..... Petitioner
Through Mr. Hemant Choudhary, Advocate
versus
STATE (NCT OF DELHI) ...Respondent
Through Ms. Meenakshi Chauhan, APP for the
State with SI Sadhna, PS Anand
Parbat
CORAM:
HON'BLE MR. JUSTICE SUBRAMONIUM PRASAD
SUBRAMONIUM PRASAD, J.
1. This is a petition under Section 482 CrPC challenging the order dated
24.11.2020, 26.03.2021 and 20.04.2021 passed by learned Additional
Sessions Judge, Tis Hazari Court in FIR No. 305/2020.
2. A complaint was registered by the prosecutrix on 18.10.2020 stating
that the on 17.10.2020 at about 4:45-6:00 p.m. when the prosecutrix, her
parents, her sister were repairing the door of her house, the petitioner along
with his wife, son and daughter-in-law misbehaved with her. It is stated that
the petitioner pulled her clothes and touched her stomach and his son/Rohit
gave an elbow blow on her breast and pelted stones on her house.
3. On the said complaint, FIR No. 305/2020 dated 18.10.2020 registered
at Police Station Anand Parbat for offences under Section 323, 354, 354B,
506, 509 and 34 IPC read with Section 10 and 12 of the POCSO Act.
4. A cross FIR bearing No.306/2020 was registered by the daughter-in-
law of the petitioner under Section 323, 341, 354, 506, 509 and 34 IPC
against seven persons including complainant and her parents. On a further
statement by the daughter-in-law of the petitioner Section 376 IPC was
added. Charge sheet has been filed in that case and the case is listed on
14.07.2021.
5. Material on record shows that during the course of the investigation in
FIR No.305/2020 dated 18.10.2020 registered at Police Station Anand
Parbat for offences under Section 323, 354, 354B, 506, 509 and 34 IPC read
with Section 10 and 12 of the POCSO Act the statement of the prosecutrix
was recorded under Section 164 CrPC wherein she has reiterated her
statements.
6. The petitioner filed an application seeking regular bail which came up
for hearing before the learned Additional Sessions Judge on 24.11.2020. The
learned Additional Sessions Judge granted bail to the petitioner while
imposing certain conditions. One of the conditions which was imposed on
the petitioner was that the petitioner shall stay at a distance of 25 kms. from
the house prosecutrix for the time being till further orders. The said clause
reads as under:-
"2. He shall stay away at least a distance of 25 KM from the
residence of the prosecutrix for the time being till further orders."
7. The petitioner thereafter moved an application for modification of the
condition imposed in the order dated 24.11.2020 directing the petitioner to
stay at a distance of 25 kms. from the house of the prosecutrix stating that
the petitioner had suffered heart attack and was admitted to Sir Ganga Ram
Hospital on 20.01.2021. A stent was attached in his heart and he was
discharged on 22.01.2021. It is stated that the petitioner is in dire need to
stay at home so that he can be given proper care and treatment by his family.
Notice was issued to the prosecutrix. The prosecutrix stated that the
petitioner has already violated the condition imposed on him as he had
visited his house.
8. Considering the fact that the petitioner had undergone a surgery, the
learned Trial Court by order dated 25.01.2021 relaxed the condition of
staying 25 kms. from the house of the prosecutrix and permitted the
petitioner to stay in his house for a period of one month. The petitioner
moved another application on 23.02.2021 for extension of the order dated
25.01.2021 for at least one more month. Status Report was called for and the
order dated 25.01.2021 was extended by one more month by order dated
24.02.2021.
9. On 23.03.2021, the petitioner moved third application for
modification of order dated 24.11.2020 granting bail stating that he may be
permitted to reside in his house and the relaxation be extended by one more
month. Medical documents were called for. Considering the improvement
in health of the petitioner, the order dated 24.11.2020 directing the petitioner
to stay 25 kms. away from the house of the prosecutrix was modified by
order dated 26.03.2021 and the petitioner was directed to stay at a distance
of 10 kms. from the house of the prosecutrix.
10. Within a period of one month of the said order, an application dated
19.04.2021 had been moved for further modification of the order dated
26.03.2021 by which the learned Additional Sessions Judge relaxed the
condition and directed the petitioner to stay 10 kms. away from the house of
the prosecutrix for post-surgery care. It is contended that the petitioner was
unable to get a suitable accommodation during the COVID-19 pandemic. It
was contended that no hotel is available and relatives are not permitting him
to stay in their house. The learned Additional Sessions Judge by order dated
20.04.2021, dismissed the said application. This order stands challenged in
the present petition.
11. Status Report was called for. In the Status Report it is observed as
under:-
"That feeling aggrieved of the orders dated 24.11.2020 and
26.03.2021 passed by the ld. ASJ, petitioner has filed the instant
petition seeking modification of the aforesaid orders on the ground
that he is suffering from heart problem and needs care of his family
members. In this regard it is respectfully submitted that the
condition to stay at distance from the house of the complainant was
imposed on the petitioner, keeping in view the previous enmity
between the parties and registration of cross cases by both the
parties against each other. It is further respectfully submitted that
in case the petitioner is allowed to stay at his house, there is a
grave apprehension that parties may again indulge in quarrel.
Presently the case is pending before the concerned court and the
next date fixed is 15.07.2021 and yet to be frame the charge against
accused persons."
12. Mr.Hemant Choudhary, learned counsel for the petitioner has
contended that in view of the COVID-19 pandemic, the petitioner has not
been able to get any place to stay. He states that the petitioner is a heart
patient and his health condition is not satisfactory. He needs some extra care
of him and that can be possible only at his house.
13. Heard Mr. Hemant Choudhary, learned counsel for the petitioner and
Ms. Meenakshi Chauhan, learned APP for the State and perused the material
on record.
14. The bail was given to the petitioner by an order dated 24.11.2020.
One of the conditions imposed by learned Additional Sessions Judge while
granting bail was that the petitioner shall stay at least 25 kms. away from the
house of the prosecutrix till further orders. The petitioner filed an
application on 16.01.2021 stating that he had heart attack and stent was
attached in his heart. Considering the health condition, the learned
Additional Sessions Judge relaxed the condition and permitted the petitioner
to stay in his house by order dated 25.01.2021. The relaxation was extended
by one more month by order dated 24.02.2021. Another application had
been filed for further extension. The learned Trial Court after considering
all the facts and circumstances has relaxed the conditions and reduced the
distance of 25 kms. to 10 kms. and directed the petitioner to stay at a
distance of 10 kms. from the house of the prosecutrix.
15. On a perusal of the facts of the case, it cannot be said that the orders
passed by the learned Trial Court is without considering the relevant factors.
The Court cannot brush aside the statement by the prosecutrix made under
Section 164 CrPC stating that the petitioner has threatened her and her
family. In the Status Report also, the SHO Police Station Anand Parbat has
opined that if the petitioner stays in his house, the parties may again quarrel
with each other. Once the learned Additional Sessions Judge has exercised
his discretion, it is not for the High Court to substitute its own conclusion to
one arrived at by the learned Additional Sessions Judge. This Court is not
an Appellate Court. Unless the finding of the court below whose decision is
sought to be challenged either in the revisional jurisdiction or under Section
482 CrPC is shown to be perverse or untenable in law or is grossly
erroneous or glaringly unreasonable or where the decision is based on no
material or where material facts are wholly ignored or where the judicial
discretion is exercised arbitrarily or capriciously, the High Court would not
interfere with its decision exercising its jurisdiction under Section 482 CrPC
(refer Sanjaysingh Ramrao Chavan v. Dattatray Gulabrao Phalke & Ors
reported as (2015) 3 SCC 123 and Bir Singh v. Mukesh Kumar reported as
(2019) 4 SCC 197).
16. It is well settled that in exercising its jurisdiction under Section 482
CrPC, the High Court does not in absence of perversity upset the judgement
of the courts below. The judgment of the learned Additional Sessions Judge
impugned in the present petition cannot be said to be perverse. The learned
Additional Sessions Judge has relaxed the condition on three occasions. The
condition that the petitioner be directed to stay away from the place of
residence of the petitioner has been modified and the distance has been
reduced from 25 kms. to 10 kms. The petitioner is not justified in repeatedly
approaching the courts for modifying the conditions.
17. The repeated attempts on the part of the petitioner is nothing but an
abuse of the process of law. However, this should not be taken as a total
prohibition on the part of the petitioner to approach the courts for relaxation
of conditions if there is a material change in circumstance.
18. In view of the above, present petition under Section 482 CrPC is
dismissed.
SUBRAMONIUM PRASAD, J.
JUNE 25, 2021
hsk
