Delhi High Court

Sushant Kumar vs The State on 20 October, 2023

                          $~
                          *     IN THE HIGH COURT OF DELHI AT NEW DELHI
                          %                                   Reserved on: October 10, 2023
                                                               Decided on: October 20, 2023
                          +     BAIL APPLN. 2923/2023

                                SUSHANT KUMAR                                ..... Petitioner

                                                   Through:    Mr. Sanjeev Kr. Jha,
                                                               Mr.    Tribindh Kumar,
                                                               Mr. Subodh Kr. Jha,
                                                               Advocates.
                                                   V

                                THE STATE                                    ..... Respondent

                                                   Through:    Mr. Utkarsh, APP for State
                                                               with SI Neelu, P.S. Binda
                                                               Pur.
                                                               Mr. Lal Singh Thakur,
                                                               Mr.     Anurag    Sharma,
                                                               Mr. Rachit, Advocates for
                                                               prosecutrix.

                                CORAM
                                HON'BLE DR. JUSTICE SUDHIR KUMAR JAIN

                                JUDGMENT

1. The present bail application is filed under section 438 of the

Code of Criminal Procedure, 1973 (hereinafter referred to as "the

Code") read with section 482 of the Code on behalf of the petitioner

Sushant Kumar for grant of anticipatory bail in FIR bearing

no.0438/2023 dated 24.07.2023 registered under section 376 of the

Signature Not Verified Digitally Signed By:JITENDRA Signing Date:20.10.2023 BAIL APPLN. 2923/2023 Page 1 17:58:55 Indian Penal Code, 1860 (hereinafter referred to as "IPC") at P.S.

Binda Pur.

2. The present FIR was got registered on the basis of complaint

made by the complainant/prosecutrix wherein she stated that in July

2022, her father and father of the petitioner/Sushant Kumar had

talked about the engagement of the prosecutrix with the petitioner.

She got engaged to the petitioner on 05.12.2022 at Atithi Hotel,

Bakhtiyarpur, Bihar in the presence of 75-100 relatives. Thereafter,

the family members of the petitioner started to demand dowry from

her family. She further stated that her family had already given Rs. 3

lakhs in cash at the time of the engagement and Rs.2 lakhs had been

spent in the engagement. On 14.02.2023, the petitioner came to her

house and tried to get physical with her but she denied. Thereafter, on

15.03.2023, the petitioner again came to her house to stay there for

10 days and at that time, she was ill and the petitioner took advantage

of the same and got physical with her twice. He told her not to tell

anyone about the incident as he is her husband now. When the

petitioner left her house on 23.03.2023, her father gave Rs. 3 lakhs in

cash to the petitioner because the father of the petitioner had put

Signature Not Verified Digitally Signed By:JITENDRA Signing Date:20.10.2023 BAIL APPLN. 2923/2023 Page 2 17:58:55 pressure on him for the same. When the date of their marriage was

fixed, the petitioner's father demanded Rs. 10 lakhs from her father.

Her father told the petitioner's father that he does not have the

capacity to give such amount. The petitioner started to avoid her and

refused to marry her. The petitioner's father told her father to look for

someone else if they cannot give the demanded amount as dowry.

She alleged that the petitioner made physical relations with her on the

false pretext of marrying her.

3. During investigation, the statement of the prosecutrix was

recorded under section 164 of the Code wherein she repeated the

allegations as mentioned in the FIR. The investigation is pending and

the charge-sheet has not been filed.

4. The petitioner filed an anticipatory bail application bearing no.

1739/2023, which was dismissed vide order dated 08.08.2023 passed

by the court of Sh. R.L. Meena, ASJ-05, South West, Dwarka Courts,

New Delhi. The relevant portion of the order dated 08.08.2023 is

reproduced as under:-

After having gone through the submissions advanced by both the parties particularly serious allegations against the applicant and applicant has not joined the investigation despite

Signature Not Verified Digitally Signed By:JITENDRA Signing Date:20.10.2023 BAIL APPLN. 2923/2023 Page 3 17:58:55 several efforts made by the IO, therefore, at this stage, I am not inclined to grant anticipatory bail to the accused/applicant.

Before parting this order it is to be note here that I have gone through the citations referred by counsel for the applicant. The facts and circumstances of the said referred case are not applicable up on the facts and circumstance of this case.

Accordingly, bail application is dismissed.

5. The petitioner sought the grant of anticipatory bail on the

grounds that the present FIR is the outcome of the calling-off of the

proposed marriage between the petitioner and the prosecutrix. The

allegations of the prosecutrix as stated in the present FIR are vague as

she has not mentioned the date of occurrence of the alleged offence.

There is an unexplained delay of about 05 months in lodging of the

present FIR. The petitioner has clean antecedents and no prior

investigation pertaining to any offence is pending against him. The

petitioner is ready to submit himself to any condition imposed by this

Court. The petitioner is an employee of the Central Government and

there is no likelihood of him fleeing away, evading the trial,

tampering with the evidence or threatening the witnesses. The

counsel for the petitioner also raised other grounds and prayed that

the petitioner be granted anticipatory bail.

Signature Not Verified Digitally Signed By:JITENDRA Signing Date:20.10.2023 BAIL APPLN. 2923/2023 Page 4 17:58:55

6. The Additional Public Prosecutor for the respondent/State filed

a Status Report wherein it is stated that the petitioner has not joined

the investigation yet. The police officials visited his residential

address as well as his office address but the petitioner was not found

at either place. Notice was served and intimation letter was also

served to his Senior Officer. The Investigating Officer got NBW

issued against the petitioner and the same was served by the

Investigating Officer at the residential address of the petitioner. The

first anticipatory bail application filed by the petitioner was dismissed

by the court of Ld. ASJ-05, South West, Dwarka Courts. The

petitioner may dissuade the prosecutrix. The Additional Public

Prosecutor opposed the grant of anticipatory bail to the petitioner.

7. The counsel for the petitioner argued that the marriage

between the petitioner and the prosecutrix was called-off due to the

reason that the prosecutrix and her family did not disclose the fact

that the prosecutrix was suffering from various medical ailments such

as frequent attacks of panic/anxiety, stress, migraine, photophobia

and phonophobia. The present FIR was lodged as an attempt to ruin

the career of the petitioner who is a government employee working

Signature Not Verified Digitally Signed By:JITENDRA Signing Date:20.10.2023 BAIL APPLN. 2923/2023 Page 5 17:58:55 with the railways due to the reason that the marriage between the

petitioner and the prosecutrix was called-off by the petitioner's

father. The delay of about five months in lodging the present FIR has

not been explained by the prosecutrix. The allegations as mentioned

in the FIR do not disclose that the petitioner did not have any

intention to marry the prosecutrix and made false promise of

marriage from the very beginning and hence, section 376 IPC is not

attracted in the present case. It is a settled law that if a relationship

does not work out, the same cannot be a ground for lodging an FIR

for the offence punishable under section 376 IPC. The petitioner,

being a government employee, would suffer irreparable loss and his

career would be ruined if he is incarcerated in a false and frivolous

case. The petitioner has roots in the society and would not flee from

justice. The counsel for the petitioner prayed that the petitioner be

granted anticipatory bail.

8. It is reflecting that the marriage of the petitioner with the

prosecutrix was fixed in July 2022 and their engagement ceremony

was performed on 05.12.2022 at Atithi Hotel, Bakhtiyarpur, Bihar.

Subsequently, the differences stated to have been arisen between the

Signature Not Verified Digitally Signed By:JITENDRA Signing Date:20.10.2023 BAIL APPLN. 2923/2023 Page 6 17:58:55 respective families of the petitioner and the prosecutrix on account of

alleged dowry demands. The petitioner came to Delhi on 14.02.2023

and tried to establish physical relation with the prosecutrix. The

prosecutrix is stated to have been suffering from various ailments as

referred by the counsel for the petitioner during arguments.

9. The petitioner again came to Delhi on 15.03.2023 and stayed at

the house of the prosecutrix for 10 days. The prosecutrix was not having

good health and allegedly the petitioner made physical relations with

the prosecutrix on two occasions. However, the prosecutrix did not

disclose the said fact to any member of her family. The prime allegation

which is reflecting from the FIR and the statement of the prosecutrix

under section 164 of the Code is that the petitioner had physical

relations with the prosecutrix on the pretext of marriage. The first

alleged incident had happened in the month of March 2023 but the FIR

was got registered in the month of July 2023. The prosecutrix did not

disclose the alleged forcible sexual relation with her by the petitioner

for more than 04 months. The petitioner and the prosecutrix were

known to each other. Although the prosecutrix has improved her

version in the statement under section 164 of the Code, the issue

whether the petitioner had physical relations with the prosecutrix with

Signature Not Verified Digitally Signed By:JITENDRA Signing Date:20.10.2023 BAIL APPLN. 2923/2023 Page 7 17:58:55 her consent or not is a matter of trial and cannot be decided without

evidence. The petitioner is stated to be a Government employee. There

is no risk that the petitioner would flee from the trial.

10. After considering all facts, in case of arrest the petitioner is

admitted to bail on furnishing a personal bond in the sum of

Rs. 30,000/- (Rupees Thirty Thousand Only) with one surety of the

like amount to the satisfaction of the concerned SHO/Investigating

Officer subject to the following conditions:-