The Delhi High Court recently comprising of a bench of Justice Swarna Kanta Sharma while granting bail to a man in an FIR registered under sec. 376D, 506 and 34 of Indian Penal Code observed that matters regarding personal liberty to be dealt cautiously, balance to be struck between respect for fundamental rights and fair investigation. (Nizamuddin Khan V. The State & Anr.)
Facts of the case
The instant application under Section 438 of the Code of Criminal Procedure, 1973 was filed on behalf of the petitioner seeking anticipatory bail in FIR registered for offences punishable under Sections 376D/506/34 of the Indian Penal Code, 1860.
It was stated by the complainant, who is the real sister of the petitioner, that she lodged a complaint under Section 376D/506/34 IPC. In this case when a query was put to the learned counsel for the complainant, who is present in Court and who is assisting the learned APP for the State as well as the Investigating Officer (IO), regarding reason for the delay in lodging of the FIR, it was stated that since it was a sensitive relationship; at the instance of their father who has unfortunately passed away in October, 2021, the complainant did not lodge any complaint. The prestige of the family was paramount for her. It was stated that after passing away of her father and after consultation with her husband the present FIR was lodged in April, 2022 i.e. after about three years of the alleged incident. Except this reason, no other reason has been put forth by the State or the learned counsel for the complainant. In any case, this is a matter of trial and may be explained by her when her testimony will be recorded and will be tested on the touchstone of cross-examination.
The statement was recorded under Section 164 Cr.P.C. which was recorded after three years of the alleged incident. It was mentioned therein by the complainant that the video of the incident in question was made and she had been threatened that in case she will disclose it, the video will be made public. It was now stated that anticipatory bail should be rejected since the video is to be recovered. There is no other reason brought to the knowledge of the court for custodial interrogation except for the purpose of recovery of the alleged video, which does not find mention in the FIR.
Courts observation & Judgment
The bench at the very outset observed, “I am of the considered view that while deciding this application I have to remain conscious and keep in mind that the present case involves sexual assault of the real sister by two brothers and also involvement of the wife of the present applicant/petitioner who had allegedly stood guard outside the room where the alleged incident had taken place. It is stated that earlier there were some disputes in the family regarding their late father bequeathing his property. However, learned counsel for the complainant insists that since she had received her share of the property that cannot be a reason for lodging of the present FIR. I am of the view that prima facie there is delay of three years in lodging of the present FIR and in the statement under Section 164 it is mentioned that since her father had requested her not to disclose the same, she had refrained from lodging the FIR.”
The bench noted that the learned counsel for the complainant stated that since she was under shock, she had forgotten and therefore she had not disclosed it to the Police. I am of prima facie view that it is the case of the complainant herself that after giving careful thought for three years, she had lodged the FIR. Therefore while the FIR was neither lodged in a hurry nor under threat, the video recording still did not find mention in the FIR. It was vehemently argued that the nature of the allegations is serious therefore bail should be declined. This is the only ground on which the bail has been opposed as discussed above.
The bench taking note of the same remarked, “However, in view of the rulings of the Hon’ble Supreme Court in various cases, it is not merely the seriousness of the allegations levelled but also the facts and circumstances of the case that need to be examined, as to whether in case the accused is released on bail, he would flee from justice or not and if he would cooperate in the investigation or would attempt to influence the witnesses or tamper with evidence, and if he would participate as and when the trial commences.”
The bench dismissing the petition observed, “Learned Senior counsel appearing for the petitioner states that the petitioner is a practicing Advocate and there is no question of his leaving the country or not abiding with any condition imposed by this Court in case he is granted bail. Mr. Mathur further states that he is willing to join investigation and cooperate with the Investigating Officer.”
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