Sanjay Jain v. State of NCT of Delhi

SANGITA DHINGRA SEHGAL, J DECEMBER 7, 2017 gr//

* IN THE HIGH COURT OF DELHI AT NEW DELHI Order reserved on 05th December,2017 Order pronounced on 7th December,2017 + BAIL APPLN. 1752/2017 & CRL.M.A. 14404/2017 SANJAY JAIN .....Petitioner Through: Ms. Ishita Jain, Advocate versus STATE OF NCT OF DELHI ....Respondent Through: Mr. Amit Ahlawat, APP for the State. CORAM: HON'BLE MS. JUSTICE SANGITA DHINGRA SEHGAL 1. By way of the present petition filed under Section 438 of the Criminal Procedure Code,1973 (hereinafter referred as 'Cr.P.C.), the petitioner seeks grant of anticipatory bail in respect of FIR No. 0308 dated 21.07.2017, under Section 354/354A/506 of The Indian Penal Code,1860(hereinafter referred as 'IPC'), registered by P.S. Jafarabad, New-Delhi. 2. Briefly stated the facts of the case are that the complaint was lodged on 21.07.2017 by one Dimple who alleged that, on 17.07.2017 at around 4 pm her brother-in-law (devar), who used to stay with her mother-in-law, had come to her house when she was alone at home and forcefully tried to make physical relations with her and even threatened her when she objected. The alleged incident was narrated by her, to her husband who did not pay any heed to it and then, later she narrated it to her brother and her aunt. She reported the incident to the police officials and the complaint was lodged under the Sections 354/354A/506 of IPC. 3. Ms. Ishita Jain, the learned counsel for the petitioner contended that that the present FIR filed against the petitioner is false and fabricated; that the petitioner visited the house of the prosecutrix on an invitation made by her for lunch; that the prosecutrix threatens her husband and his family members many a times of filing false cases of domestic violence, sexual harassment etc; that in the year 2005, she filed a false case of domestic violence against her husband, which was later on withdrawn by her; that her behavior towards her husband and his family is unreasonable; that she even went on a vacation, with her husband along with the petitioner and a friend, a month before filing the FIR. Hence, the present petition should be allowed. 4. Per Contra, learned APP has vehemently opposed the bail application by stating that the petitioner has been evading arrest and has not joined the investigation. He further alleged that the anticipatory bail application has been previously rejected by the learned ASJ keeping in view the seriousness of the allegations. Hence, the present petition is liable to be set aside. 5. I have heard the learned counsel for the parties and perused the material available on record. 6. Before adverting to the question raised in the present petition, it is seen that the petitioner is charged for the offences under Sections 354/354A/506 of IPC. Section 354 IPC, makes penal the assault or use of criminal force to a woman to outrage her modesty. The essential ingredients of offence under Section 354 IPC are: (a) that the assault must be on a woman; (b) that the accused must have used criminal force on her; (c) that the criminal force must have been used on the woman intending thereby to outrage her modesty. In Raju Pandurang Mahale vs State Of Maharashtra And Anr reported in (2004) 4 SCC 371, it has been observed that : "What constitutes an outrage to female modesty is nowhere defined. The essence of a woman's modesty is her sex. The culpable intention of the accused is the crux of the matter. The reaction of the woman is very relevant, but its absence is not always decisive. Modesty in this Section is an attribute associated with female human beings as a class. It is a virtue which attaches to a female owing to her sex. The act of pulling a women, removing her saree, coupled with a request for sexual intercourse, is such as would be an outrage to the modesty of a woman; and knowledge, that modesty is likely to be outraged, is sufficient to constitute the offence without any deliberate intention having such ourtrage alone for its object. As indicated above, the word 'modesty