The Delhi High Court has reprimanded Police for not registering FIR alleging rape and sexual assault and subsequently directed a vigilance inquiry to be conducted by the Deputy Commissioner of Police, to ascertain the cause for this.

The single-judge bench of Justice Subramonium Prasad posed a peculiar question as to why the matter was allowed to be laid to rest on compromise basis, despite the written complaint disclosing commission of a cognizable offence.

Brief Facts of the Case

The Court was dealing with a plea under Section 438 Cr.P.C., seeking grant of anticipatory bail in wherein the accused-petitioner was charged under Sections 376/328 of the Indian Penal Code, 1860. While the vigilance inquiry was ordered in a different FIR registered at Kapasehra police station, the petition related to another FIR registered at Moti Nagar Police Station, however, both FIRs were registered by the same prosecutrix.

It was the case of the prosecutrix that the Petitioner tricked her into consuming alcohol and took advantage of her vulnerable condition to forcibly have sexual intercourse with her while she was alone at home.

Soon aftger this, chargesheet was filed in which the MM issued Non-Bailable Warrants (NBW) against the Petitioner for not appearing before the Court, thereby rejecting his exemption request.

Learned Counsel for the petitioner has submitted that the prosecution story is false and concocted. He has argued that the instant matter is a classic case of honeytrap and that the prosecutrix and her husband have been previously involved in a similar case. He has also informed the Court that one Manish Tanwar had also been similarly trapped in this manner by the prosecutrix and her husband who only sought to extort money from their victims by lodging false complaints of sexual assault. He has informed this Court that in that matter, a hand-written complaint of rape against Manish Tanwar had been given to the police, but no FIR had been lodged.

He further submitted that in Manish Tanwar’s case, Rs. 50 lacs had been demanded from him by the prosecutrix and her husband for the matter to be settled. It has been stated that on settlement, the prosecutrix did not undergo medical examination and even gave in writing to the SHO, P.S. Kapashera that she was retracting her complaint regarding allegations of rape on the ground that she had filed the same in a fit of anger.

High Court Observation

The Court at the outset noted that it would be pertinent to note that the Supreme Court has laid down guidelines pertaining to cases wherein chargesheet has been filed without the arrest of the accused. In Satender Kumar Antil v. Central Bureau of Investigation, (2021) 10 SCC 773, the Supreme Court has observed that if an accused has not been arrested during investigation and has cooperated throughout in the investigation, including appearing before the investigating officer whenever called, then certain guidelines must be adhered to while considering the grant of bail.

"In the instant case, the Petitioner has been accused of offences under Section 376/328 IPC, which entails a punishment that shall not be less than seven years, but may extend to imprisonment for life, and shall also be liable to fine. Therefore, as per the aforesaid judgement, for consideration of a bail application for an accused who falls under Category B, the accused must appear in court pursuant to process issued and the said bail application must be decided on merits. Further, the Supreme Court has also clarified that if during the course of investigation, there has been no cause to arrest the accused, merely because a chargesheet is filed, would not be an ipso facto cause to arrest the accused."

 In light of the above, the Court direced the Trial Court to reconsider the matter pertaining to the issuance of impugned NBW in view of the fact that the chargesheet was filed without the arrest of the Petitioner herein. and granted interim protection from arrest to the petitioner till next date of hearing.

The Court further opined that the fact that a similar complaint had been instituted by the prosecutrix/Complainant herein before P.S. Kapashera wherein she had levelled allegations of sexual assault against one Manish Tanwar but no FIR was registered in that case and that matter had been put to rest on the basis of a compromise which had been arrived at between the parties therein goes against the law laid down by the Supreme Court in Lalita Kumari Vs. Govt. of U.P. & Ors., 2013 Latest Caselaw 779 SC

Furthermore, it has been time and again held by the Supreme Court that cases involving the offence of rape cannot be settled on the basis of a compromise (State of M.P. Vs. Madanlal, 2015 Latest Caselaw 423 SC)

The Court ordered the vigilance inquiry based on suspicion that the instant FIR had not been registered at the time it was alleged to have been registeredand that there can be possible manipulation of the instant FIR and the Police was attempting to settle the case.

In view of the above discussions, the Court set aside the Trial Court order and directed it to consider as to whether the custody of the petitioner is required post filing of the chargesheet.

Read Order Here:

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Sheetal Joon