Mohit Aggarwal vs The State & Anr.
2021 Latest Caselaw 1405 Del

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*     IN THE HIGH COURT OF DELHI AT NEW DELHI

                                            Reserved on: 07.05.2021
                                         Pronounced on: 10.05.2021
+     BAIL APPLN. 1214/2021
      MOHIT AGGARWAL                                     .....Petitioner
                  Through:            Mr. Tanmay Mehta, Advocate

                         Versus

      THE STATE & ANR.                                     .....Respondents
                    Through:          Mr. G.M.Farooqui, Additional Public
                                      Prosecutor for respondent No.1/State
                                      Counsel     for    respondent     No.2
                                      (appearance not given)

      CORAM:
      HON'BLE MR. JUSTICE SURESH KUMAR KAIT

                         JUDGMENT

1. This is third bail application filed by the petitioner before this Court

seeking bail in FIR No. 46/2019, under Sections 376/506/174A IPC,

registered at police station Mukherjee Nagar, Delhi.

2. Petitioner's first bail application [BAIL APPLN. 3161/2020] was

dismissed as withdrawn vide order dated 19.10.2020 by this Court. His

second bail application [BAIL APPLN. 630/2021] was disposed of by this

Court on 18.03.2021 while giving him liberty to approach the trial court to

urge the pleas taken herein. Thereafter, petitioner approached the learned

trial court and vide order dated 08.06.2020, his bail application was

dismissed. He again moved two applications for bail before the trial court

and the same were dismissed vide order dated 24.09.2020 and 31.03.2021

respectively.

3. At the hearing, Mr. Tanmay Mehta, learned counsel for petitioner

submitted that the petitioner is innocent and he has been falsely implicated

in this case. He submitted that the complaint, on the basis of which FIR in

question has been registered, was filed by the prosecutrix at the instance of

Rajinder Singh, his brother-in-law (Jija), who has married with his two real

sisters and is having strained relations with him. He further submitted that as

per the FIR, the alleged incident took place in the February, 2018 whereas

the FIR was registered in January, 2019 and no plausible reason is

forthcoming for the delay.

4. Learned counsel also submitted that no PCR call was made by the

prosecutrix in Mohali against the petitioner and that petitioner has no

connection with the Wagon-R car, last digit 8500 and he never forced

prosecutrix to make relations with him when he came to Delhi. He also

submitted that no material has been brought on record to substantiate the

allegations of prosecutrix.

5. Lastly, learned counsel submitted that petitioner has clean antecedents

and no other case is pending against him and that charge sheet in this case

has already been filed and also that petitioner has been languishing in jail

since 03.09.2019 and trial shall take substantial time, so, petitioner deserves

to be released on bail.

6. On the contrary, Mr. G.M.Farooqui, learned Additional Public

Prosecutor for respondent/State submitted that the allegations levelled

against the petitioner are serious in nature. He submitted that the prosecutrix

has alleged that petitioner raped her on several occasions against her wish

and had also prepared her obscene video and whenever she refused to get

physical with him, he threatened her saying that he will make the said video

public. Further submitted that petitioner's threat to prosecutrix had gone to

the extent of firing a gun shot on the leg of prosecutrix and in this regard

two FIRs, one FIR No.173/2019, dated 03.04.2019, under Section 336 IPC

and Sections 27/54/59 of Arms Act and another, FIR No. 262/2019, dated

05.07.2019, under Sections 25/54/59 Arms Act, 1959, both registered at

police station Mukherjee Nagar, Delhi have been registered by the

prosecutrix.

7. Learned Additional Public Prosecutor next submitted that

petitioner/accused avoided judicial process of law and was declared

proclaimed offender by the trial court. Further submitted that petitioner does

not deserve concession of bail and this petition deserves to be rejected.

8. Learned counsel for respondent No.2/prosecutrix also appeared and

supported the submissions made by leaned Additional Public Prosecutor for

State and submitted that if the petitioner is released on bail, he may again

threaten the prosecutrix and influence the material prosecution witnesses.

9. The rival contentions raised by both the sides were heard in detail and

material placed on record has been perused.

10. The case of the prosecution is that on 23.01.2019, respondent

No.2/prosecutrix, aged 26 years, lodged a complaint that in the year 2016

when she had gone to Mohali, Chandigarh to visit her Aunt (massi),

petitioner who happens to be her first cousin, forced her to join coaching

classes there for bank exams. Accordingly, she joined the classes thinking

that it would help her in future. But soon, she at the insistence of petitioner,

missed those classes and started visiting malls, PVR, showrooms etc. with

petitioner and during this time, petitioner recorded her obscene video and

started black mailing her to have physical relations with her. The prosecutrix

further alleged that petitioner threatened her that if she would refuse to make

relations with him, he would make that obscene video public. She also

alleged that after her return from Mohali to Delhi in April, 2017, petitioner

on 25.02.2018 came to Delhi and reached her PG in white colour Wagon R

car, last digit 8500 and took her somewhere and showed her the said

obscene video and raped her in the car itself and promised her that he would

delete the said video. It is further alleged that petitioner returned Mohali

thereafter and did not call her, but again on 14.01.2019, he called her up and

when she did not respond to his repeated calls, however, on 16.01.2019 he

sent the same video clip to her on face book messenger. Thereafter, she

made a complaint to the police and the FIR in question was registered

against the petitioner.

11. There is no iota of doubt that the allegations levelled against the

petitioner are serious in nature. This Court is informed that charge sheet in

this case has already been filed and charge is yet to be framed. Though at

this stage this Court is not required to dwell upon the merits of the case but

for the purpose of grant or refusal of bail, a prima facie opinion has to be

formed and, therefore, the material placed on record has been considered by

this Court.

12. Pertinently, the FIR in question has been registered in the year 2019

and the age of prosecutrix has been mentioned as 26 years. A cursory

perusal of FIR shows that prosecutrix had visited Mohali in the year 2016

and instead of attending her coaching classes, she used to roam around with

petitioner in malls, PVR and showrooms etc. However, she has pleaded

ignorance about how petitioner made her obscene video and allegedly

blackmailed her to forcefully make physical relations with him. Three years

prior to the year 2019, prosecutrix might have been 23 years of age and in

the opinion of this Court, at the age of 23 years, a girl/lady is good enough

to decide what is right or wrong. Allegedly, there are allegations of

petitioner repeatedly raping her till she returned her home in Delhi in the

year 2017. But the fact remains that no complaint/PCR call was made nor

any FIR was registered by the prosecutrix in Mohali with respect to alleged

incident nor did she thought of returning her home in Delhi from September,

2016 till April, 2017. Even if this allegation is accepted on the face of it,

why did prosecutrix only complain petitioner's sister about the alleged

incident and did not bring it to the knowledge of her Aunt (petitioner's

mother), who happens to be her mother's sister (massi) or her parents on her

return to Delhi, is yet to be established.

13. Prosecutrix has specifically alleged that petitioner had raped her on

25.02.2018 and also on 16.01.2019 in Delhi by threatening her to make her

obscene video viral on You tube and he had even sent the said video to her

on her face book messenger account. A perusal of status report filed by

respondent/State shows that so far prosecution has not been able to procure

any technical evidence in this regard.

14. This Court has also gone through the copy of FSL report dated

08.01.2021 placed on record, wherein it is noted that:-

"i. Facebook Messenger chats and inappropriate videos which were retrieved from "MP1" are enclosed herewith in one Compact Disc marked "CD-A" with folder named "DATA OF MP1." ii. No Facebook Messenger chats and inappropriate videos were retrieved from"MP2"

The aforesaid extract of FSL report shows that inappropriate videos

and chats have been retrieved from the mobile of prosecutrix, but nothing

incriminating has been recovered from the mobile of the petitioner. The

alleged obscene video is the foundation of this case, based upon which

petitioner has allegedly been implicated in this case. How and in what

manner the origin and authenticity of the said video will be established, is a

matter of trial, but so far in the absence of any technical evidence on record,

the assertion of prosecution seems to be under clouds.

15. Further, as per status report, prosecutrix had refused to undergo

internal medical examination and her MLC was prepared.

16. This Court has also gone through the contents of FIR No.173/2019,

under Section 336 IPC and Sections 27/54/59 of Arms Act, 1959, registered

at police station Mukherjee Nagar, Delhi on 03.04.2019 wherein it is stated

that on receipt of PCR call by a lady that a gun shot was fired at her, the

investigation team reached the spot and statement of

complainant/prosecutrix was recorded wherein she stated that two bikers

had fired and fled from the spot. Accordingly, the crime scene was inspected

and two live cartridges were recovered. The FIR and status report are silent

about the name of accused/suspect.

17. This Court has also gone through the contents of FIR No. 262/2019,

dated 05.07.2019, registered at police station Mukherjee Nagar, Delhi for

the offences under Sections 25/54/59 Arms Act, 1959, wherein complainant/

prosecutrix has stated that she could not notice the bike number and could

not identify the bike riders, who were two boys with their covered face and

had fired a shot in the earth near her legs. During investigation, though one

empty cartridge was recovered from the spot but prosecutrix did not receive

any injury. Moreover, in the said FIR also petitioner has not been named as

an accused/suspect.

18. Pertinently, proceedings in the aforesaid two FIRs are independent to

the case in hand and since the name of accused/suspect does not find

mention therein, the prosecutrix is yet to establish how these FIRs are

connected with the present case against the petitioner.

19. As per status report, petitioner had surrendered before the court

concerned on 03.09.2019 and since then he is in custody in this case. It is

not disputed that no other case is pending to the credit of petitioner. Charge

sheet in this case has already been filed and trial will take substantial time.

Accordingly, without commenting on the merits of the prosecution case, the

petitioner is directed to be released on bail forth with upon his furnishing

personal bond in the sum of Rs.25,000/-, with one surety in the like amount

to the satisfaction of the Trial Court/Duty Magistrate, subject to the

condition that:-

i. Petitioner shall not directly or indirectly influence the witnesses

or tamper with the evidence;

ii. Petitioner shall not directly or indirectly approach the

prosecutrix or his family members;

20. The present petition is allowed in aforesaid terms and is accordingly

disposed of.

21. A copy of this order be transmitted to the Trial Court and Jail

Superintendent concerned for information and compliance.

(SURESH KUMAR KAIT) JUDGE MAY 10, 2021 r