Mansher Singh Ghuman v. State of NCT of Delhi

ORDER

28.05.2015

¶1Vide this common order I shall dispose of two bail applications bearingNo.980/2015and982/2015filed by the petitioner.

¶2In bail appln. No.980/2015the petitionerprays for pre-arrestbail under Section 438 read with 482 Cr.P.C in case FIR No. 95/2015 under Section376/506IPG registeredat policestationVasantVihar, New Delhi. This FIR was registeredon the basis of a complaintmade by prosecutrix allegingthereinthat inthe morningof 25.01.2015at 8.30 am she got a call from the petitionerwho told her that he wantedto assignher some security work and called her for a meeting at 40 Poorvi Marg, Vasant Vihar, New Delhi. When she reached there around 11.00 am, she found that there was no meetingand no friendof the complainantwas there. Only petitionerwas there and he was sniffingsome white powder.He offered her drink but she refused to take it. She enquired about the meeting and the accusedtold her that his friend would come and asked her to wait. She told him that she could not wait long as she had small kids but petitioner forced her to stay and forced himself upon her. She shouted and asked him to let her go but he forciblyhad sex with her for aboutone hour. As he was havingdrugs,he fell unconscious. At that time she ran away from that place.

¶3In bail appln.982/2015the petitioner seeks anticipatory bail in case FIR No.590/2015 under Section 354/506 IPG police station Vasant Vihar, New Delhi which was registered on the basis of a complaint made by the same prosecutrix alleging inter alia that on 05.05.2015 while she was entering in the police station the accused Mansher Singh Ghumman alongwith one man in turban came and his associate threatened her not to enter in the police station and accused threatened her to kill if the previous case i.e., FIR No. 95/2015 got transferred from police station Vasant Vihar to another. He further told her that nobody knows his whereabouts and police is in his control and nobody can catch him. His associate misbehaved with her and asked her not to leave her children alone at home till she withdraws her complaint. She dialled 100 number. Suddenly, one unknownperson holdinga briefcasepulled her jeans from her waist. She gave a complaintand made PGR calls and gave her writtencomplainton the basis of which this case was registered.

¶4Learned Senior counsel for the petitioner has prayed for pre-arrest bail to the petitionermainly on the ground that the petitionerhas joined investigation at least on six occasions i.e., 26.01.2015, 27.01.2015,

02.04.2015, 09.04.2015,11.04.2015and 05.05.2015.Duringthe course of investigation,the petitionerhas surrenderedhis passport,his mobile phone and all the relevant documents. As per the case of the prosecutrixshe was calledby the petitioneron 40 Poorvi Marg, Vasant Vihar, New Delhi for some meetingwhere she was subjectedto forciblerape. The allegationsare falsifiedby the fact thatthe house40PoorviMarg belongto Anil Malhotra, where other persons were also present including Mr.Malhotra and his servant. Moreover, if any such untoward incident had taken place, the complainantwouldnot have sent an e-mailon the same day forwardingher proposal for work to the petitioner. It is further submitted that various SMSs placed on record shows that the complainantand petitionerwere close to each other. At no point of time the petitioner absconded.Despite the fact that the petitionerhimselfappearedbeforethe InvestigatingOfficer of the case on 26.01.2015 yet his non-bailable warrants were taken which were never executed. The petitioner is an American citizen. He has already surrendered his passport. That being so, there is no chance of his fleeing from the country. He has given his permanent address of Chandigarh belonging to his father where he visits. An affidavit of his father has also been filed to show that the relation between the petitioner and his father are not strained and the petitioner visits him. On 05.05.2015 the petitioner had gone to police station to lodge his complaint whereupon another FIR was foisted on him. Since the petitioner has already joined investigation and is furtherreadyand wilHngtojoin the same,he be grantedanticipatorybail.

¶5The apphcationis vehementlyopposedby learnedAdditionalPublic Prosecutor for the State as well as complainant duly assisted by her counsel. It is submitted by Mr.O.P.Saxena, learned Additional Public Prosecutor for the State that after the registration of FIR on the basis of complaint made by the prosecutrix, house No.40 Poorvi Marg, Vasant Vihar, New Delhi was visited where accused was not found present but Anil Malhotra, owner of the house, was present who assured to produce petitionerto the police stationon his return. On 26.01.2015Anil Malhotra produced the petitioner in the police station for investigation.During investigation, it was revealed that accused is a citizen of U.S.A. Anil Malhotra assured that he will bring him for further investigation as and when required. Statement of prosecutrix under Section 164 Cr.P.C could not be recorded on that day. On 27.01.2015 her statement was recorded under Section Cr.P.C in which she reiterated her statement as mentioned in the FIR. Efforts were made to trace the accused but accused absconded and Anil Malhotra who was found present at his house stated that accused was not in the house and he does not know where he has gone but he will bring him to police station on his arrival. Despite sincere efforts, he could not be traced. As such, on 29.01.2015 intimation was given to U.S Embassy and LOC got opened through FRRO against the petitioner. On

31.01.2015 non-bailable warrants were taken from the Court. While referring to the status report, it was ftirther submitted that the investigation revealed that complainant came in contact with the accused for business purpose in the year 2013 and also visited Pune for business. In this regard mails and telephonic recorded conversation provided by the victim were taken on record. It is further submitted that except for business relation, there was no other relationship between the complainant and the accused. The complainant had gone to meet the accused for specific business proposaland despiteresistance,she was raped by the accused.Subsequent to the registrationof the FIR, the complainantwas threatened by Anil Malhotra and Bala to withdraw the case. As such. Section 506 IPG was added in the case. Efforts were made to execute the non-bailable warrants, however,he could not be traced. Enquiryrevealedthat the elderbrotherof the accusedSandeep Singh Ghumman is residing on the ground floor and his uncle Mr.JagjeetSingh reside on the first floor of propertyNo. 3386, Sector27-D, Ghandigarh.The groundfloor was lockedand the uncle of the accused informed that accused has not visited the house for very long time. Moreover, they have no contact with him. He further stated that the petitionerhas no connectionwith his family and is not a residentof that address. It is submitted that the allegations are very serious in nature. The accused has no permanent residence in Delhi as well as in Ghandigarh.He is an NRI and there are strong chances of his fleeing/jumping bail. Possibility of threatening the prosecution witnesses by the accused is reflected from the fact that another FIR under Section 354/506/34 IPG is registered against him. His custodial interrogation is required, as such, he is not entitled to be released on bail.

¶6Learned counsel for the complainant also vehemently opposed the application on the ground that immediately after the incident, the FIR was got registered by the prosecutrix on the same day. Statement of victim was recorded on 27.01.2015. Since then accused has been absconding. It is further submitted that the petitioner is an influential person which is reflected from the fact that despite registration of the FIR for such a heinous offence which is non-bailable one and accused went to the police station on 26.01.2015, he was not arrested by the police. Even thereafter, no sincere efforts were made by the police to arrest him with the result, the complainant had to move application for transfer of the case to Special Cell Women and vide order dated 30.04.2015, the investigation of the case was transferred from police station Vasant Vihar to DIU/SD for further investigation. At no point of time the accused was called in the police station. He went of his own after he was granted interim relief by the Trial Court due to lawyers strike. The petitioner never joined investigation. On request of police he had only submitted documents through his lawyer during pendency of the application in Sessions Court. Reference was made to e-mail dated 08.03.2015 sent by Anil Malhotra where he admitted factum of commission of rape upon the complainant by Matt (petitioner herein) but asked her to withdraw the case as petitioner is influential and can do anything Section 506 Cr.P.C was also added. As regards e-mail sent by the complainant to petitioner on same day, it was submitted that it was sent in the morning and due to some technical reasons it might have reached the petitioner after the incident. Further, the petitioner has misused the liberty of interim protection by committing another serious non-bailable offence for which another FIR 590/2015 was registered. For reasons best known to the accused, he has not disclosed the name of 'Sikhman' who had accompanied him to the police station and threatened the complainant. It is submitted that the petitioner is receiving threats for withdrawal of the complaint. Petitioner does not deserve any relief in view of the seriousness of the allegations otherwise that will give a wrong message to the society. Furthermore, the petitioner does not have fix place of residence in India as he is an American citizen. As per the affidavit filed by her father, the petitioner lastly visited him in August, 2014. Therefore, there is every possibility of his jumping the bail.

¶7Before adverting to the facts of this case, this Court must focus its attentionto the principles and parametersgoverningthe grant of pre-arrest bail orders under Section 438 of the Code. In Gurbaksh Singh Sibbia Vs. State ofPunjab, 1980(2) SCC 565, the Apex Court had examined in detail the principles governing the grant of pre-arrest bail and had laid down that the considerations relevant for bail under Sections 438 and 439 of the Code are same. In para-21 of the said judgment, however, their Lordships had highlighted the need of exercising wise judicial discretion in the matter of grant of pre-arrest bail and had observed:- "A wise exercise of judicial power inevitably takes care of the evil consequences which are lil<ely to flow out of its intemperate use. Every kind of judicial discretion, whatever may be the nature of the matter in regard to which it is required to be exercised, has to be used with due care and caution. In fact, an awareness of the context in which the discretion is required to be exercised and of the reasonably foreseeable, consequences of its use, is the hallmark of a prudent exercise of judicial discretion."

¶8In Pokar Ram Vs. State of Rajasthan & Others, AIR 1985 SC 969, the Apex Court had again considered the powers of the Courts under Section 438 of the Code. In para-11 of the judgment, it was held that status in life, affluence or otherwise were hardly relevant considerationswhile examining the request for grant of anticipatory bail. It was also observed that anticipatory bail to some extent intrudes in the sphere of investigation of crime and the Courts must be cautions and circumspectin exercisingthis power of a discretionarynature. In para-13 of the same judgment,it was also observedthat grant of anticipatorybail in serious cases may shake the faith of public in administrationofjustice.

¶9Learned counsel for the petitioner relied upon Siddharam Satlingappa Mhetrevs. StateofMaharashtra OthersAIR 2011 SC312 in which following factors and parameterswere laid down for considerationwhile dealing with the anticipatory bail:- "i. The nature and gravity of the accusation and the exact role of the accused must be property comprehended before arrest is made; a. The antecedents of the applicant including the fact as to whether the accused has previouslyundergone imprisonment on convictionbya Court in respect of any cognizable offence; ill. Thepossibilityof the applicant toflee from justice; iv. The possibility of the accused's likelihood to repeat similar or the other offences. v. Wherethe accusations have been made onlyv^/ith the objectof injuringor humiliating the applicant by arresting him or her. vi. Impact of grant of anticipatory bail particularly in cases of large magnitude affecting a very large number of people. vii. The courts must evaluate the entire available material against the accused very carefully. The court must also clearly comprehend the exact role of the accused in the case. The cases in which accused is implicated with the help of sections 34 and 149 of the Indian Penal Code, the court should consider with even greater care and caution because over implicationin the cases is a matter of common knowledgeand concern; via. While consideringthe prayerfor grant of anticipatory bail, a balance has to be struck between two factors namely, no prejudice should be caused to the free, fair andfull investigationand there should be preventionof harassment, humiliationand unjustifieddetention of the accused, ix. The court to consider reasonable apprehension of tampering of the witness or apprehension of threat to the complainant; X. Frivolityin prosecution should always be considered and it is only the elementof genuinenessthat shallhave to be consideredin the matter of grant of bail and in the event of there being some doubt as to the genuineness of the prosecution, in the normal course of events, the accused is entitled to an order of bail."

¶10Coming to the facts of the case in hand, the FIR No 95/2015 has been registeredunder Section376 IPC by the prosecutrixon the allegationsofrape. In RohitChauhanvs. StateNCTofDelhi2013 (4) JCC2801 reliedupon by learned counselfor the petitioner,a SingleJudge of this Courtreferredto the observations made by this Courtin anotherbail appln.No.1760/2012as under:- Rape isone of the mostbarbaricand heinouscrimesnot only againstthe victim of the rape but also againstthe societyas a whole. The cases of rape, gang rape and digitalrape are onincreaseand perpetratorsof this inhumanand brutalcrimeare worsethan even the beastsare deserveto be dealtwith a heavy hand. The entirecountryis seriouslydebatingthis issue and thereare proposals comingforth that death penaltyshouldbe the answer to deal with the accused involvedinsuch heinouscrime. Havingsaid this, Iam also constrainedto observe here thatno oneshouldbe allowedto trivialisethe gravityofoffenceby misusing the same as a weapon for vengeance or vendetta.

¶11It is appalling to seek that rape rears its uglyfacade almost everyday. As per the National Crime Record Bureau, in India, a rape is committed every 20 minutes. Rape being the fastest growing crime is undoubtedly one of the most deplorable, belligerentand atrocious act committed against the dignity of a woman. Rape has been held to be even moreserious than murder which not only destroysthe woman physicallybut also shatters her innerselfbydestroyingher each livingmoment emotionally and psychologically.

¶12Rapeis a crimeagainst one's mind, psyche and reputation. Rape leaves a permanent scar on the lifeof the victimand it becomes horrendousfor the victim of rape to lead a dignified and well respected life in the society. It is very unfortunate that there is a high increase in the rape instances and ravenous maniacs are not even sparing the girls of a very tender age. Some of the recent rape cases have been so horrifyingthat the entire nation protested to condemn these barbaricacts and raiseda voice to curb thesaid menacebyinflictingmore severe punishment. The Governmentalso promptly appointed Justice J.S.Verma Committee to review laws on crimes against women, which recommended certain dramatic changes in the Criminal law relating to offences against women."

¶11It was also noted that there is manifold increase in the crime concerning rapes, however, on the factual matrix of that case that the complainantand the petitionerhad married,there was delay in lodgingFIR and while observing that every case is to be dealt with based on its individualfactualmatrixand no straightprincipleor straightjacketformula can be appliedspecificallywhiledealingwith bail matterswhereonly prima facie view can be taken to appreciatethe facts in a given case,the petitioner was granted relief of anticipatory bail.

¶12As perthe caseofthe complainant,she hadjoinedacompanyrecently which deals in securityguardsand manpower.On 25.01.2015at about 8.30 am she receiveda call from the petitionersaying that he wants to assigna securityjob ofhis friend'scompanyand she shouldcome for the meetingat 40 Poorvi Marg, Vasant Vihar, New Delhi. As such, in order to have businessshe went to the place of meetingand reachedthere at about 11.00 am but did not find anyone else except the petitionerwho was sniffinga white powder. A drink offered by him was refused by her. Thereafterhe forciblyhad sex with her. On the same day, she lodgedthe complaintwith the police. The factum of visit of prosecutrixat 40 Poorvi Marg, Vasant Vihar,New Delhi in the house ofAnil Malhotrais not even disputedby the petitioner.Statementof Anil Malhotrain this regardhas also been recorded by the InvestigatingOfficerofthe case who has statedthat on noticingthat the complainant has come he asked his servant to offer her tea etc. When the alleged incidenttook place there was nobody else in the room except the complainantand the petitioner.On the same day, the FIR was registered. When the complainantwas taken to SafdarjungHospital for her medical examination,she gave the same history to the doctor. On 27.01.2015her statementunder Section 164 Cr.P.C was recordedby learnedMetropolitan Magistratewhereinshe reiteratedthe avermentsmade in hercomplaint.

¶13Needless to say, the allegations are serious in nature and the offence under Section 376 IPG is non-bailable one. It is a matter of record that on

26.01.2015the petitionervisitedpolice stationand his passportwas seized. He was taken to All India Institute of Medical Sciences where his medical examinationwas done. Despitethe fact that seriousallegationswere levelled againsthim andhe was with the policebut he was not arrestedfor which no explanation is forthcoming. In this background, the allegations of the complainantthat since petitioneris an influentialperson thereforepolice was not taking any steps to arrest him cannot be brushed aside. The complainantapproachedDCP South vide her complaintdated 21.04.2015 for transfer of her case to Special Cell Women and thereaftervide order dated 30.04.2015investigationwas transferredfrom police station Vasant t Vihar to DIU/SD on 30.04.2015.

¶14It is the case of prosecutionthat after 27.01.2015the petitionerwas not availabledespiteefforts.Anil Malhotraalso could not producehim and gave his statementthat from 28.01.2015petitioner is not in touch with him. Therefore, his LOC was got opened. His non-bailable warrants were also obtainedbut without any success. After the grant of interim protectionin the applicationfor anticipatorybail filed by him before the SessionCourt, petitioner appearedof his own in the police station on few dates. But that itselfis not sufficientas the Court cannotignorethe gravityand seriousness of the allegationslevelledagainstthepetitioner.

¶15Further, as per the case of prosecution Section 506 IPC was added in the initialFIRas the complainantwas threatenedby Anil Malhotraand Bala to withdraw the case. Reference was made to e-mail dated 08.03.2015 sent by Anil Malhotrato the complainantwhere while feelingsony for whatever happenedand knowingthatpetitionerrapedher but he askedherto settlethe matteras she was aware that they are influentialpeopleand can do anything so she should withdraw her case. It is stated that IP address of Anil Malhotra isbeingverifiedthroughcybercell and reportis stillawaited.

¶16Not only that, on 05.05.2015complainanthad gone to police station ^ to enquire about the investigationwhich has been transferredto Malviya Nagar, DIU. It is alleged that at that time the petitioneralongwitha Sikh gentleman came and the complainantwas again asked to withdraw the complaintand was also threatenedby the Sikh gentlemannot to leave her childrenalone at the house unless she withdrawsthe complaint.Not only that, she was also sexually assaulted. Therefore, FIR No.590/2015 was registered.

¶17Admittedly, the petitioner is an American citizen. During investigationhis address 3386, Sector 27D, Chandigarh came to light. Accordingto the petitioner,this is the addressof his father where whenever he comes to India resides. For the purpose of executionof non-bailable warrants, the police officials visited this address and it was found that elder brotherofaccusedSandeepSinghGhumanwas residingon the groundfloor whereas his uncle Jagjeet Singh Ghuman resides on the first floor. The ground floor was found lockedand uncle of accused informedthat accused MansherSinghGhumanaliasMatthas not visitedthe house for along time. Moreover, they have no contact with him and does not know his whereabouts. He further stated that Mansher Singh Ghuman has no connectionwith his family and he is not a resident of this address. The petitioner,however, filed an affidavitof his father stating therein that he lastly visitedhim in August, 2014. Fatherofthe petitionerappearedin the Courtand statedthatthe petitionervisitedhim in August,2014 whenhe was to be operateduponand besidesthathe also visitedhim in December,2014.

¶18Keeping in view the totalityof facts and circumstancesof the case coupledwith the fact that the allegationsagainstthe petitionerare graveand serious in nature and the investigationis at its threshold,I do not deem it appropriate to release the petitioner on anticipatory bail. As such, applicationsare dismissed.It is, however,clarifiedthatnothingstatedherein shalltantamountto an expressionofopinionon meritsofthe case. Order dasti. MAY 28, 2015 mb SUNITA GUPTA, J

$-11, 12 * IN THE HIGH COURT OF DELHI AT NEW DELHI + BAIL APPLN. 980/2015 MANSHER SINGH GHUMAN Through; versus STATE OF NCT OF DELHI Through: + BAIL APPLN. 982/2015 MANSHER SINGH GHUMAN Through: versus STATE OF NCT OF DELHI Through: Petitioner Mr.Salman Khurshid, Sr.Advocate alongwithMs.NeelaGokhale,Mr.Nikhil and Mr.Ankit Shukla, Advocates Respondent Mr.O.P.Saxena, APP for the State alongwithWSI Mukeshfrom police station District Investigation Unit, Delhi. Mr.Yash Wardhan Tiwari, Advocate for complainant. Petitioner Mr.Salman Khurshid, Sr.Advocate alongwithMs.NeelaGokhale,Mr.Nikhil and Mr.Ankit Shukla, Advocates Respondent Mr.O.P.Saxena, APP for the State alongwithWSI Mukesh from police station District Investigation Unit, Delhi. Mr.Yash Wardhan Tiwari, Advocate for complainant. CORAM: HON'BLE MS. JUSTICE SUNITA GUPTA %