Saurabh Jain v. State NCT of Delhi

ORDER %

31.10.2013

¶1This is a petition under Section 438 Cr.P.C. r/w Section 482 Cr.P.C.moved by the petitionerfor grant of anticipatorybail in case FIR 874/2013u/s 376/313/328/506IPC registeredwithPS Shakarpur, Delhi.

¶2The FIR in the instantcase was registeredon 16^"^ September, 2013 on the complaintofMs. BabandeepKaur whereinshe alleged thatshe is 24yearsofage. In July,2004, she camein contactwiththe petitioneroutside the Coffee Home at Nirman Vihar, Delhi and he started showing friendly to her and he then took her at his home whereher friendwas sittingwithher boy friend. Her boy friendwas Saurabh'scousin. On 20^*^ July, 2004,the petitionerproposedher and made tall claimsand allurementto her abouthim and his family and BailAppl. 1944/2013 u showed a very rosy picture. He told her that he is a graduate and has done B.Pharma and has his own Gym and also has wholesale shop. However, all these claims made by him were found to be fake at a very later stage. She had fallen in trap of the petitioner and accepted his proposal. They became good friends which continued smoothly till 2010. In the year 2010, Saurabh Jain started compelling her to have physical relations which she refused. But one day he called her at his home and his mother was in another room. Thereafter he gave some drink to her. After taking the same, she became subconscious and he committed forceful rape upon her. For 4-5 days she did not talk to him but then he stated that he will marry her very soon and he succeeded in misguiding her so as to escape from clutches of law. However, it was only a ploy by the petitioner so that she may not complain to police and her family members. He started avoiding about the marriage and thereafter he committed rape number of times against her wishes and consent. In August, 2012, he asked her to make arrangement of Rs.5 lacs on the pretext of construction of his house and virtually compelled her to bring the said money. Therefore,she gave allcash,someof herjewelleryand allher savings to him with the hope that he will marry her. Despitethat, he did not fulfil his words and continuedto exploit her sexually. In March, 2013, she was shockedto learnthat she was pregnant. She informed the petitionerabouther pregnancywho askedher for abortion,which was declined, however, he sent her to Navjeevan Nursing Home where it was confirmed that she was pregnant. Thereafter, he pretendedthat he sufferedheart attackon 15^^ March, 2013 and was BailAppl. 1944/2013 p^^^^oflO A" admitted in Max Balaji Hospital and on March, 2013 he was discharged. The petitioner sent her to Smart Medicos at Jagat Puri near Shri Ram Hospital for buying some abortion tablets. She took those tablets under his pressure. He took her to lady doctor in Walia Nursing Home, who examined her because there was no action or reaction of that tablet. She got done ultrasound and all. There he spent all the money for the same. After that, he did not talk to her for some days and when he again took her to the doctor and promised that in the year 2013 he will marry her. Thereafter, petitioner took her to his house in order to meet his mother but her mother told her that she will allow the petitioner to marry her only if her family will give Honda City Car, home appliances, Rs.10 lac in cash and marriage ftinction in Le-Meridien. She was shocked to learn about such demands as her parents cannot meet such demand of dowry. Thereafter, she came to know that the petitioner has not only maintained illicit relations with other 2-3 girls and have ruinedtheir lives. On 8^ September,2013, she met a girl namely. Sweety, who was also been betrayedby the petitionerin the same manner. She along with that girl went to the house of the petitionerwhere petitionerand his motherthreatenedher and that girl and asked them to go away and that police cannot do anything. In this way, the petitionerhas committedseriouscrimesby committingrape on her on many occasionsagainst her wishes and consentand by givingfalse and wrongpromisesofmarriage,extorted money to the extent ofRs.5 lacs, jewelleryand all her savings and ruinedher life. Now they are threateningto kill her in case she raises hervoiceor make any complaintto thepolice.

¶3It is submitted by the learned counsel for the petitioner that there is long and unexplaineddelay in making the complaint by the complainant to the police. The complaint has been filed after a long and belated period of more than three years and no reasonable explanation has been given by the complainant for making such belated complaint. On the basis of same and identical allegations, mother of the petitioner has been granted anticipatory bail while the application moved by the petitioner was dismissed. It was further submittedthat the complainanthas not given her completeaddressin the complaintand the allegationsare vague inasmuchas no specific date, time or month of the year 2010 has been stated by the complainant. It is also improbable that in the presence of mother of the petitioner,petitionerwouldhaveaudacityto rapethe complainant. It was submitted that there was non-compatibility between the two and due to inter-caste/inter-religion,the girl being Sikh and the boy being Jain, the marriagebetweenthe two was not possible by their families. This fact was knowntotheirfamilies.However,the friendly relationshipcontinuedbeingvoluntaryand consensual. However,due to all these problems and tensions, the petitioner, a young boy, suffereda massiveheartattack/strokeand was admittedatMax Super SpecialityHospital,IP Extn. Patparganj,Delhi on March, 2013 and he was dischargedon 19^ March, 2013. His angioplastywas done and stent to LAD was done. It was submittedthat her statement under Section164 Cr. P.C. was recordedaftera long periodofmore than ten days from the date of registrationof the FIR and there are various discrepancies in the complaint and the Statement under BailAppl. 1944/2013 Page4of10 Section 164 Cr. P.C. The parties were known to each other and had become friends over a period of time. Both were adults and have consensual relationship, however, the complaint was lodge only when the relationship became sore. The fact that they were having good relation stands confirmed from the photographs and the SMSs sent by her to the petitioner on his mobile phone on regular basis.

¶4Reliance was placed on Jagdish Nautiyal Vs. State, 2012 (1) JCC 311 DHC; Rohit Chauhan Vs. State, 2013 IV AD (Crl.) DHC 224; Deepak Gulati Vs. State of Haryana, 2013 (IV) AD (Crl.) 21 SC; KP Thimmappa Gowda Vs. State of Karnataka, 2011 (2) Crimes (SC) 140; Rajesh Patel Vs. State of Jharkhand, 2013 (2) JCC 1260; Sajid@ Salman Vs. State, 2013 (2) JCC 808; Vikash Vs. The State of Delhi, 2007 (3) JCC 2336; Ashutosh Tiwari Vs. State NCT ofDelhi, 2009 (1) JCC 105; Brij Mohan Verma Vs. State, 2008

(2) JCC 931 for submitting that the petitioner has roots in the society. Co-accused has been released on bail. There are no chances of his absconding. He is ready to join investigation. As such, he be released on bail.

¶5The application is opposed by learned Public Prosecutor for the State on the ground that the allegationsagainst the petitionerare serious in nature. In her statementrecorded u/s 164 Cr.P.C., she reiteratedthe avermentsmade inthe complaint. The petitionercannot claim paritywith co-accusedwho has been releasedon anticipatory bail. Investigationis at threshold,as such,accusedis not entitledto be releasedon anticipatorybail.

¶6Much emphasis has been laid by the learned counsel for the petitioner for submitting that although the complainant was known to the petitioner since the year 2010, however, the FIR has been lodged after a lapse of 3^2 years and for such belated FIR, there is no satisfactory explanation.

¶7A perusal of FIR goes to show that the allegations are running from the period 2010 till 2013 and, therefore, it cannot be said that it was a solitary incident which might have taken place in the year 2010 for which FIR is being registered in the year 2013. In Karthi @ Karthick Vs. State, 2013 (7) SCALE 777 it was observed that as long as commitment of marriage subsisted, the relationship between the parties cannot be described as constituting the offence of rape u/s 376 IPC. It is only after the accused declined to marry that a different dimension is attached to the physical relationship. In that case, relationship continued for six months and when accused declined to marry complainant then complaint was lodged. It was observed that in the facts and circumstances of the case, it is not possible to hold that any doubt can be said to have been created in the version of the prosecutionmerely on account of delay in the registration of FIR.

¶8Furthermore,although,it is true that boththe petitionerandthe complainantwere adults and as per the avermentsmade in the FIR, they were having friendlyrelationshipwhich continuedtill the year 2013. According to the petitioner, the relations were consensual whereas according to the complainant,it was on the assurance of marryingher. This aspectofthe matterwill requireto be seenduring trial of the case.

¶9Moreover,it is the case ofthe complainantthat she conceived and it was on the insistence of the petitioner that she was forced to abort. Furthermore, as per the averments made in her statement recorded under Section 164 Cr. P.C., it was the complainant who got the petitioner admitted in hospital for the second time and at that time, the petitioner introduced the complainant as his wife to the hospital staff. Thereafter, when he was discharged from the hospital he tried to avoid her, although he was talking to her. His brother-in-law persuaded his mother to get their marriage solemnized on which she told him that he will not have any share in the property and they will have to live somewhere else. His mother called her and told her that it will be an arrangedmarriagebut she demandeda new Honda City car, 10 lacs cash, function in Le-Meridien and all house appliances despite the fact that she was aware that her family member will not spend any money and she had to do everything of her own. As such, she returned back. Thereafter, when the petitioner met her she informedhim about the demandsmade by his motherwhereuponhe told her that he was receivingmatches who can spend Rs.8 to 10 crores and, as such, she has to make arrangementsor else she may demandher sharein the propertyfrom her parents. On 8^ September, 2013, she came to know that she is not the only girl in his life and thereare many others. On September,2013, she wentto the house ofa girl who confirmedabouther relationswith the petitioner. Both of them went to the house of petitionerand he became shockedon seeing both of them. Thereafter, she and that girl slapped the petitionerand then made a call to the police. Policecame, however, the girl leftthe placeby sayingthatthe petitionerand his familywill Bail Appl. ,944/2013 bribe the poUce officials and as such, she does not want to involve herself in court cases. She also returned back to her house next day. Again, she went to the office of brother-in-law of the petitioner and wanted to meet the petitioner whereupon he informed her that petitioner has been sent outside Delhi by his mother and his mother was adamant in not getting them married, may be petitioner have to remain in jail. Thereafter, she has been receiving continuous threats for withdrawal of the complaint. As such, the allegations are very serious in nature.

¶10The various authorities relied upon by the learned counsel for the petitioner are on the factual matrix of the respective cases. Each and every case has to be decided on the basis of allegations made in the respective cases and, therefore, the petitioner cannot get benefit from them. Similarly, the fact that co-accused has been granted anticipatory bail has no bearing on the application moved by the petitioner against whom there are allegations of commission of rape, forcing the complainantto abort the child, forcing her to part with Rs.5 lacs,jewelleryand othersavings. As such, the petitionercannot claim parity with that of co-accused.

¶11As observed by the Hon'ble Supreme Court in Pokar Ram v. of Rajasthan, AIR 1985 SC 969, relevant considerations, governing the Court's decision in granting anticipatorybail under Section 438 of the Code of Criminal Procedure, are materially differentfrom those which apply while consideringapplicationfor bail by aperson,who is arrestedin the courseofinvestigationor by a person who is convictedand who seeks bail during pendencyofthe appeal. The power of the Court under Section 438 of the Code of Criminal Procedure being somewhat extraordinary in character should normally be used only where it appears that the petitioner before the Court may have been implicated in a false case and there are reasonable grounds to believe that he has not likely to otherwise misuse the liberty of bail, if granted to him. The offence under Section 376 of IPC being a serious offence,the Court ought to be circumspect while considering request of an accused in a case of this nature for grant of anticipatory bail. The facts and circumstances of this case do not make out an appropriate case for exercise of discretion under Section 438 of the Code of Criminal Procedure. In fact, the Status Report filed by the :Stat^, shows that the petitioner has been abscondingand has not surrendered,despiteraids at the placesof his relatives. The applicationof the petitioner for grant of anticipatory bailhas alreadybeenrejectedbythe Courtof Sessions.A person,who is abscondingand evadingprocess of law, is not entitledto grant of anticipatorybail save in exceptionalcase justifying departure from this principal. Unless there are peculiar and special facts and circumstancesin a given case, the Court would not be justifiedin extendingthebenefitof anticipatorybailto sucha person.

¶12In Jagtar Singh v. SatendraKaur, 2002 (6) Scale,the Hon'ble Supreme Court observed that normally when the accused are absconding, there is no question of granting anticipatorybail or regularbail to them. As held by the Hon'bleSupremeCourtin %tate^ ofMaharashtrav. Mohd. SajidHussain,2008 (1) SCC (Crl.) 176, one of the factors, while consideringthe applicationfor grant of anticipatory bail, is the possibility of the applicant, if granted bail, fleeingfromjustice.If a personis absconding,despiteraidscond^ucted by the police and rejection of his petition for grant of anticipatory bail by the Court of Sessions, the prosecution may not be unjustified in saying that anticipatory bail ought not to be granted to such a person who may even flee from justice by not attending the trial. In the absence of exceptional and peculiar circumstances, the Court, therefore, should not grant anticipatory bail to a person, who is evadingthe processof lawby continuingto remainabsconding.

¶13Keeping in view the totality of the facts and circumstances of .the case, it is not a case for grant of anticipatorybail.

¶14The application is accordingly dismissed.

¶15It is clarified that any observation made in this order shall not affect the decision of the case at any stage of the trial or other proceedings. OCTOBER 31, 2013 rs BailAppl. 1944/2013 SUNITA GUPTA, J

* IN THE HIGH COURT OF DELHI AT NEW DELHI + BAIL APPLN. 1944/2013 SAURABH JAIN Petitioner Through Mr. Manoj Taneja and Mr. Arjun Sanjay, Advocates versus STATENOT OF DELHI Respondent Through Ms. Aashaa Tiwari, APP SI Pinki Rana, PS Shakarpur. CORAM: HON'BLE MS. JUSTICE SUNITA GUPTA