Delhi High Court
Mohd. Sadab Khan vs State Govt. Of Nct Of Delhi And Anr. on 8 August, 2022
$~1
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Order reserved on : 04/08/2022
Order pronounced on : 08/08/2022
+ BAIL APPLN. 2300/2022
MOHD. SADAB KHAN ..... Petitioner
Through: Mr. Vivek Kumar Mishra and Mr.
Aurangzeb Khan, Mr. Anand
Mishra, Ms. Mariya Mansuri and
Mr. Ujwal Ghai, Advs.
versus
STATE GOVT.OF NCT OF DELHI & ANR. ..... Respondent
Through: Ms. Priyanka Dalal, APP for the
State.
CORAM:
HON'BLE MS. JUSTICE POONAM A. BAMBA
POONAM A. BAMBA, J :
1.0 This is an application under Section 438 Cr.P.C for grant of
anticipatory bail moved on behalf of the petitioner in case FIR No.
475/2022 dated 13.07.2022, under Sections 376/506 IPC, PS Desh
Bandhu Gupta (DBG) Road.
2.0 It is submitted that the petitioner is innocent and has been falsely
implicated by the complainant. It is further submitted that the petitioner
and the complainant/prosecutrix knew each other since 2019 being the
employees of Jamia Milia Islamia University and were in consensual
relationship; whatsapp chat exchanged between them clearly shows the
relationship they shared.
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By:GEETA JOSHI
Signing Date:09.08.2022
17:31:46
2.1 It is also submitted that the petitioner as well as the respondent no.
2 were very well aware that both of them were already married and as
such, there was no occasion for the petitioner to seek sexual favour from
the respondent no. 2 on false promise of marriage. However, the
respondent no. 2 started making unreasonable demands from the
petitioner under the garb of their relationship; and ultimately on
13.04.2022, an agreement was executed between the petitioner and the
respondent no. 2, according to which, the petitioner had to purchase a flat
amounting to Rs. 6-6.5 lakhs in Jamia Nagar for the
complainant/prosecutrix, however she started demanding marital status,
on which disputes arose between them. The prosecutrix then threatened
him with dire consequences.
2.2 It is further submitted that the petitioner is a permanent employee
of the Jamia Milia Islamia University and is a permanent resident of
Delhi at the given address and there are no chances of his absconding.
2.3 It is also submitted that the petitioner has clean antecedents.
2.4 It is further submitted that the petitioner is ready to comply with
any condition as may be imposed by this Court.
2.5 Mr. Salman Khurshid, Ld. Senior Counsel submitted that in view
of above facts, the petitioner deserves anticipatory bail and placed
reliance upon the judgments of Kerala High Court dated 22.06.2022 in
Bail Appl. No. 3475 of 2022 titled as Vijay Babu vs. State of Kerala and
that of Hon'ble Supreme Court dated 06.07.2022 in SLP (Crl.) No.
5986/2022 preferred by the prosecutrix against the said order titled as
'XXX vs. Vijay Babu & Ors., and judgments of Apex court (1) dated
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By:GEETA JOSHI
Signing Date:09.08.2022
17:31:46
21.08.2019 Criminal Appeal No. 1165 of 2019 titled as Pramod
Suryabhan Pawar vs. The State of Maharashtra & Anr.; (2) judgment
dated 27.06.2022 in Criminal Appeal No.(s) 442/2022 titled as Mandar
Deepak Pawar vs. The State of Maharashtra & Anr. and (3) judgment
dated 01.03.2021 in Criminal Appeal No. 233 of 2021 titled as Sonu @
Subhash Kumar vs. State of Uttar Pradesh & Anr.
3.0 On the other hand, Ld. Prosecutor strongly opposed this bail
application submitting that the petitioner has been charged with rape and
intimidation. The petitioner repeatedly raped the prosecutrix by extending
false promise of marriage, although, he had no intention to marry her.
When the prosecutrix requested the petitioner to marry her, he started
extending threats to her and blackmailing her. On being threatened by the
petitioner that he will release their intimate video, the prosecutrix took a
drastic step of consuming sleeping pills and attempted suicide, due to
which she remained admitted in hospital from 19.05.2022 to 21.05.2022.
3.1 Ld. Prosecutor further submitted that the investigation in the matter
is at initial stage and the petitioner is deliberately not joining
investigation and is evading arrest. His custodial interrogation is
necessary to unearth relevant facts. Hence, his application for anticipatory
bail deserves dismissal.
4.0 I have heard submissions made on behalf of both the sides and
have duly considered the material on record.
5.0 Admittedly, the petitioner is aged about 35 years and the
prosecutrix is about 34 years old; both were working in Jamia Milia
Islamia University and came to know each other in the year 2019. The
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By:GEETA JOSHI
Signing Date:09.08.2022
17:31:46
prosecutrix in her complaint has herself stated that she became friendly
with the petitioner/accused and developed physical intimacy with him;
and that they established physical relations on several occasions at 3BS
Hotel, Karol Bagh. Although, she further stated that the
petitioner/accused established physical relations with her on the pretext of
marriage.
5.1 It is the petitioner's case that the prosecutrix had consensual
relationship with him being fully aware of his marital status; his
(petitioner's) marital status was well known to everyone in the University
including the prosecutrix, as both of them worked at Jamia Milia Islamia
University for last four years. Ld. counsel for the petitioner also
submitted that the prosecutrix herself was married. Both of them being
already married, there was no occasion for the petitioner to seek sexual
favour on a false promise of marriage, as alleged.
6.0 With respect to the prosecutrix's marital status, Ld. Prosecutor
submitted that the prosecutrix was divorced by her husband Imran Khan
in January 2020 after he came to know about her relationship with the
petitioner.
6.1 Admittedly, the prosecutrix has been in relationship with the
petitioner since 2019 i.e., prior to January 2020. Ld. Senior Counsel for
the petitioner refuted that the prosecutrix had been divorced in 2020 and
submitted that DD No. 98 dated 21.05.2022 shows that the prosecutrix is
still married. It was submitted that on 21.05.2022, the prosecutrix along
with her husband Imran Khan trespassed into the petitioner's house along
with 4-5 boys; they abused him and his family members and demanded a
sum of Rs.50,000/- and also threatened to falsely implicate them in case
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By:GEETA JOSHI
Signing Date:09.08.2022
17:31:46
they failed to pay said amount. The petitioner had then approached
police, on which, DD No. 98 dated 21.05.2022, PS Jamia Nagar, was
recorded. It is also submitted that the petitioner even has the video of the
aforesaid incident and if required, he can hand-over the same to the
police. It was further submitted that the same clearly shows that the
prosecutrix is not divorced and is still married and therefore, she could
not have married the petitioner.
6.2 Above facts inter alia that the prosecutrix along with her husband
Imran Khan trespassed into the petitioner's house along with 4-5 boys and
other happenings as pleaded by Ld. counsel for the petitioner, are borne
out from DD No. 98 dated 21.05.2022.
7.0 In Vijay Babu's case (supra), relied upon by the petitioner, the
Kerala High Court granted anticipatory bail to the petitioner/accused
noting that the prosecutrix was aware that the petitioner's marriage was
subsisting and she involved with the petitioner during subsistence of his
marriage, when there was no possibility of a legal marriage with the
prosecutrix at that time.
7.1 Ld. counsel for the petitioner submitted that the Kerala High
Court's judgment was challenged by the prosecutrix by way of SLP 5986
of 2022, which was dismissed by the Supreme Court vide order dated
06.07.2022 (supra).
7.1.1 It is seen that after considering the pleadings and other material on
record, the Apex court refused to interfere with the order of the Kerala
High Court and dismissed the SLP.
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By:GEETA JOSHI
Signing Date:09.08.2022
17:31:46
7.2 It would also be pertinent to refer here to the judgment of the
Hon'ble Supreme Court in Prashant Bharti vs. State (NCT of Delhi),
(2013) 9 SCC 293, where Apex court has observed as under:
"2. .....prosecutrix alleged that the appellant.....
was known to her for about four months........
....
....
5. ....... the appellant-accused, had been having
physical relations with her in his house, on the
assurance that he would marry her.....
......
.......
17. It is relevant to notice, that she had alleged,
that she was induced into a physical relationship
by Prashant Bharti, on the assurance that he
would marry her. Obviously, an inducement for
marriage is understandable if the same is made to
an unmarried person. The judgment and decree
dated 23.09.2008 reveals that the complainant/
prosecutrix was married to Lalji Porwal on
14.6.2003. It also reveals that the aforesaid
marriage subsisted till 23.9.2009, when the two
divorced one another. ...... ....... she had remained
married to Lalji Porwal. In such a fact situation,
the assertion made by the complainant/
prosecutrix, that the appellant/accused had
physical relations with her, on the assurance that
he would marry her, is per se false and as such,
unacceptable. She, more than anybody else, was
clearly aware of the fact that she had a subsisting
valid marriage with Lalji Porwal. Accordingly,
there was no question of anyone being in a
position to induce her into a physical relationship
under an assurance of marriage. ....... ....... In the
aforesaid view of the matter, we are satisfied that
the assertion made by the complainant-prosecutix,
that she was induced to a physical relationship by
Prashant Bharti , the appellant-accused, on the
basis of a promise to marry her, stands irrefutably
falsified.
...........
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By:GEETA JOSHI
Signing Date:09.08.2022
17:31:46
...........
23.8 Eighthly, the physical relationship
between the complainant and the accused was
admittedly consensual. In her complaints Priya
had however asserted, that her consent was based
on a false assurance of marriage by the accused.
Since the aspect of assurance stands falsified, the
acknowledge consensual physical relationship
between the parties would not constitute an offence
under Section 376 IPC. Especially because the
complainant was a major on the date of
occurrences, which fact emerges from the
"certificate of marriage" dated 30.09.2008,
indicating her date of birth ad 17.7.1986."
7.2.1 Thus, the apex court noted that when the prosecutrix herself was
married at the given time, there was no question of her being induced into
relationship on false promise of marriage.
8.0 In view of the above, I find force in the petitioner's argument that
the petitioner being a married man was not competent to marry the
prosecutrix (who herself was married) and could not have induced her
into physical relationship on false promise of marriage.
9.0 In view of the above facts and circumstances, the petitioner
deserves benefit of Section 438 Cr.PC. Accordingly, it is directed that in
the event of arrest, the petitioner be released on bail, subject to his
furnishing personal bond in the sum of Rs.25,000/-, with one surety of
like amount to the satisfaction of Ld. Trial Court, subject to the
following conditions :
i. that the petitioner shall make himself available for investigation as
and when required by the Investigation Officer (IO);
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By:GEETA JOSHI
Signing Date:09.08.2022
17:31:46
ii. that the petitioner shall not contact/intimidate the prosecutrix in
any manner;
iii. that the petitioner shall not, directly or indirectly, make any
inducement, threat or promise to any person acquainted with the
facts of the case so as to dissuade him/her from disclosing such
facts to the Court or to any police officer;
iv. that he shall provide his mobile number to the IO and keep it
operational all the times, and
v. that in case of change in his residential address, and/or mobile
number, the same shall be intimated to the IO/court concerned by
way of an affidavit.
10.0 Present petition is disposed of accordingly.
11.0 Pending applications, if any, stand closed.
(POONAM A. BAMBA)
JUDGE
AUGUST 08, 2022/manju
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Signature Not Verified
By:GEETA JOSHI
Signing Date:09.08.2022
17:31:46
