$~18. * + + IN THE HIGH COURT OF DELHI AT NEW DELHI Date of Decision:
04. 11.2016 BAIL APPLN. 2207/2016 MOHD MOIZ Through: Mr. S.C. Singhal, Advocate a/w petitioner in person ........ Petitioner
versus STATE (GNCT OF DELHI) Through: Mr. Ashish Dutta, APP with ASI ..... Respondent Usha Rawat, PS Hauz Khas Mr. Sudarshan Rajan and Mr. Arjun Gadhoke, Adv for R-2/complainant a/w the complainant CORAM: HON'BLE MR. JUSTICE VIPIN SANGHI VIPIN SANGHI, J.
(OPEN COURT) 1. The petitioner has preferred the present bail application to seek regular bail under Section 439 Cr.P.C. in case FIR No.623/2016 dated 17.08.2016 registered under Sections 376/506/328 IPC at police station Hauz Khas, New Delhi.
2. The petitioner is in custody since 19.08.2016. The charge-sheet stands filed. The aforesaid case has been registered on the statement of the prosecutrix in which she has alleged that the petitioner accused was working BAIL APPLN. 2207/2016 Page 1 of 7 in the same company where she is working. According to the prosecutrix, the petitioner proposed to her for marriage on 05.06.2016. She went to Safdarjung Development Area (SDA), New Delhi, where the petitioner put some substance in a drink and also forced her to take alcohol. She claims that she got drowsy and unconscious, where after, he forced himself upon her. Subsequently, the petitioner apologized to the prosecutrix and promised to marry her. Due to this false promise, she got influenced and made physical relationship with the petitioner accused. However, subsequently, the petitioner turned around and stated that he had no intention to marry the prosecutrix. She further alleged that she has threat to her life and safety from the accused.
3. The submission of learned counsel for the petitioner is that the prosecutrix first made a complaint on 12.08.2016 on the basis of which FIR No.618/2016 was registered under Section
IPC. In this complaint, the prosecutrix did not make any accusation of rape against the petitioner. The allegation was that the petitioner had abused the prosecutrix in the most filthy manner and threatened to murder her. She stated that she felt threatened and fear for her safety. She sought arrest of the petitioner and action against him under the law. Subsequently, she improved her story and registered the second complaint as FIR No.623/2016 on 17.08.2016 and in the said complaint, she, for the first time, alleged that the petitioner had induced her into physical/sexual relationship by spiking her drink and forcing her to drink alcohol on the false promise of marriage. She stated that the petitioner had been making romantic overtures towards her and proposed marriage. She also alleged that on 05.06.2016 at Safdarjung Development BAIL APPLN. 2207/2016 Page 2 of 7 Area (SDA), New Delhi, he put substance in her drink and forced her to take alcohol. When she became drowsy and unconscious, he forced himself upon the prosecutrix and later on admitted to his crime and apologized and stated that he would marry the prosecutrix. She stated that due to the said false promise, he influenced into a physical relationship but, subsequently, he turned around and stated that he had no intention of marrying her. He became abusive and threatened the complainant/prosecutrix. In this complaint, she also stated that the petitioner told her not to mention regarding the physical relationship established between the parties in her earlier complaint. She also alleged that on the previous day, i.e. 06.08.2016, the accused refused to honour his commitment at the police station.
4. Mr. Singhal submits that the story that the prosecutrix wrote the first complaint under the influence of the petitioner and on his request did not mention about the alleged rape, is unbelievable. He further submits that the prosecutrix also refused to get herself medically examined. Mr. Singhal submits that when the prosecutrix recorded her statement under Section 164 Cr.P.C., she further improved upon her earlier versions.
5. Mr. Singhal submits that the petitioner has since resigned from his job and that the petitioner has no intentions of re-establishing any contact or ties with the prosecutrix. He submits that the petitioner is a resident of Mussorie and would return to Mussorie. The petitioner was directed to be produced from custody. He has been so produced. He has stated and given an assurance to the Court that he would not come in contact with the prosecutrix. He would not try to pressurize or coerce or threatened her or cause any harm to the prosecutrix. He has stated that he would return to BAIL APPLN. 2207/2016 Page 3 of 7 Mussorie and stay in Mussorie and that he shall not come to Delhi except to attend the court hearings. He has further submitted that he is willing to be subjected to such conditions as this Court may consider appropriate to safeguard the interests of the prosecutrix and other prosecution witnesses and assuage the threats perceived by them which have no basis. Mr. Singhal submits that no useful purpose would be served by detaining the petitioner any further in judicial custody at this stage and he has already undergone incarceration for nearly 78 days.
6. A status report has been filed by the State. It is stated that during investigation, the complainant has provided snapshots of whatsapp messages/conversations which took place between her and accused earlier. On perusal of the conversation, it is found that both were good friends and used to work in the same company. The FSL report regarding examination of the whatsapp conversation found on the mobile instrument of the accused is awaited.
7. The application is opposed by the prosecutrix who is present in Court with her counsel. Learned counsel for the prosecutrix has tendered in Court the photocopy of the whatsapp conversation stated to have been exchanged by the petitioner accused with the prosecutrix. He has referred to certain extracts from the said conversation to submit that the allegation of rape against the petitioner is made out. Learned counsel for the prosecutrix submits that in the first complaint, the prosecutrix did not allege rape on account of the social stigma attached to it, however, subsequently, she gathered courage and came out with the full disclosure. The prosecutrix submitted that the petitioner threatened her in the police station that he shall BAIL APPLN. 2207/2016 Page 4 of 7 throw acid upon her. He also threatened the prosecutrix with dire consequences. She has pleaded that the petitioner is a danger to the well- being of the prosecutrix and for this reason he should be kept behind bars.
8. Having heard learned counsel for the petitioner, perused the record, heard learned APP as well as the prosecutrix and her counsel, I am of the view that no useful purpose would be served in keeping the petitioner in judicial custody during the pendency of the trial in the facts of the present case and he should be released on regular bail. It would need examination whether the prosecution has indeed come out with a fuller and truthful disclosure in the FIR in question after making the initial FIR No.618/2016 on 12.08.2016 wherein allegations against the petitioner only relate to hurling of abuses in a filthy manner and of issuance of treat to kill the prosecutrix. It would need examination whether the prosecutrix did not make allegations of rape against the petitioner in the first complaint dated 12.08.2016 on the asking of the petitioner. The complainant/prosecutrix has refused medical examination. The status report discloses and even the whatsapp communication exchanged between the prosecutrix and the petitioner, prima facie, show that that the petitioner and the prosecutrix were in a relationship. Whether or not they established a physical relationship; whether the same was consensual or not; whether the petitioner has committed rape upon the prosecutrix after administering some drug or alcohol upon the prosecutrix or by making her false promise of marriage, are issues which would be examined by the trial court at the trial of the case. At this stage, since the investigation is complete and charge-sheet stands filed, no purpose would be achieved in detaining the petitioner in custody any BAIL APPLN. 2207/2016 Page 5 of 7 longer during the pendency of the trial.
9. The petitioner has undertaken that he shall not contact the prosecutrix or issue any threat or coercion to her or any of the prosecution witnesses. He has undertaken that he shall return to his home town Mussorie and shall come to Delhi only to attend to the case and not otherwise. The fear and apprehension expressed by the prosecutrix of her being subjected to physical harm or attack has to be viewed in the light of the fact that even in her subsequent complaint leading to registration of FIR No.623/2016 on 17.08.2016, she did not allege that on the previous day, the petitioner had threatened her with dire consequences. She had, inter alia, stated that; “……….But yesterday at Hauz Khas police station, where we met, he made it clear that he had no intention of honouring my commitment and “I could go to hell”. Therefore, I am submitting take necessary immediate action because I fear that he may harm me and I fear treat to my life and safety from him.” this complaint now. Please 10. Accordingly, the petitioner is directed to be released on bail upon his furnishing his personal bond with one surety in the like amount of Rs. 25,000/- to the satisfaction of the trial court. It is further subject to the condition that at the time of his release, the petitioner shall provide his mobile phone number to the trial court which shall be kept in working condition at all the times. The same shall not be changed without prior intimation to the court. The petitioner shall not get in touch with or in any way contact the prosecutrix or any of the prosecution witnesses since he has himself stated that he will not come to Delhi except to attend to the case. It is directed that he shall not enter Delhi except to attend the case and BAIL APPLN. 2207/2016 Page 6 of 7 whenever he does so, he shall straightaway report at the police station within whose jurisdiction the trial court at Saket Court is locked to mark his attendance. Even when he leaves the Court after the hearing is over, he shall similarly mark his attendance with regard to his leaving Delhi, and at the local police station where he is residing at any given point of time. The investigating officer in the case and the SHO, Police Station Hauz Khas, within whose jurisdiction, the prosecutrix is residing shall also keep a vigil to prevent any harm to the prosecutrix from the accused, particularly, on the date of hearing. The investigating officer shall ensure that the prosecutrix and the petitioner do not cross their paths or come in direct contact.
11. The application stands disposed of in the aforesaid terms. VIPIN SANGHI, J.
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