Full Judgment Text
NEUTRAL CITATION NO: 2020/DHC/004527
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* IN THE HIGH COURT OF DELHI AT NEW DELHI
Reserved on: 28.10.2022
% Pronounced on: 31.10.2022
+ BAIL APPLN. 2944/2022& CRL.M.A. 20037/2022
SANJEEV KUMAR ..... Petitioner
Through: Ms. Vibha Datta Makhija, Sr.
Advocate with Mr. Praveen
Gaur, Mr. Karan Mamgain,
Ms. Baani and Ms. Sampriti
Baksi, Advocates.
Versus
STATE GOVT OF NCT OF DELHI & ANR. ..... Respondent
Through: Mr. Naresh Kumar Chahar,
APP for the State with SI
Bansi Lal, P.S. Ambedkar
Nagar.
Mr. K.S. Negi, Mr. Mohit
Kukreja and Mr. Nikhil
Rajput, Advocates with
complainant in person.
CORAM:
HON'BLE MS. JUSTICE SWARANA KANTA SHARMA
Signature Not Verified
BAIL APPLN. 2944/2022 Page 1 of 6
Digitally Signed
By:ZEENAT PRAVEEN
Signing Date:01.11.2022
14:52:29
NEUTRAL CITATION NO: 2020/DHC/004527
O R D E R
% 28.10.2022
1. The instant application under Section 438 read with Section
482 of the Code of Criminal Procedure, 1973 (“Cr.P.C.”) has been
filed on behalf of the petitioner seeking anticipatory bail in FIR
bearing no. 472/2022, registered at Police Station Ambedkar Nagar,
for offences punishable under Sections 323/354/354A/509/506/34 of
the Indian Penal Code, 1860 (“IPC”).
2. Brief facts of the case are that on 17.02.2021 and 19.02.2021,
the complainant „R‟ and her family members were attacked by the
applicant and other accused persons including some local
outsiders/goons. A preventive action was taken with regard to this
incident against both the parties whereby the present applicant and
brother of complainant were arrested in kalandra under sections
107/151 Cr.P.C. at PS Ambedkar Nagar. Again on 17.03.2022, the
applicant, who is the neighbour of complainant, attacked the
complainant‟s brother along with four other persons and pressed his
neck. Thereafter, applicant/accused along with his associates attacked
the complainant and mother of the complainant. It is specifically
alleged in the FIR that applicant and his other associates had dragged
complainant „R‟ by her hair, pushed her to ground, forcibly lay over
her and tried to disrobe her, and had also held the private parts of
complainant and had outraged her modesty. After taking cognizance
in the matter, the Court of CMM, South District, Saket Courts, Delhi
vide order dated 06.08.2022, had directed the police officials to lodge
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BAIL APPLN. 2944/2022 Page 2 of 6
Digitally Signed
By:ZEENAT PRAVEEN
Signing Date:01.11.2022
14:52:29
NEUTRAL CITATION NO: 2020/DHC/004527
an FIR and investigate the same, and accordingly the present FIR was
registered.
3. Learned senior counsel for the petitioner/applicant submits that
the applicant is a government employee and belongs to Schedule
Caste and the motive for framing him falsely is attributable to his
caste. It is argued that the complainant and her family members have
on numerous occasions hurled casteist slurs on applicant and his
family, and no action has ever been taken on the complaints filed by
the applicant and his family members qua the same.Learned counsel
further submits that even as per the Status report, there is no CCTV
footage of the alleged incident dated 17.03.2022 which could verify
the allegations of the complainant. It is submitted that constant fights
among the ladies of both the families is the main reason behind the
false implication of the applicant in the present case. In support of her
arguments, learned senior counsel has placed reliance on the
following judgments: (i) Arnesh Kumar v. State of Bihar and Anr.
(2014) 8 SCC 273, (ii) Sushila Aggarwal and Ors v. State (NCT of
Delhi) and Anr. (2020) 5 SCC 1.
4. Per contra, learned Additional Public Prosecutor for the State,
duly assisted by the Investigating officer and the learned counsel for
complainant, opposes the present bail application stating that the FIR
in present case was registered and investigation was taken up as per
directions under Section 156(3) Cr.P.C of the Court. The statement of
complainant was recorded under Section 164 Cr.P.C which
corroborates earlier version in the complaint. It is stated that the
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BAIL APPLN. 2944/2022 Page 3 of 6
Digitally Signed
By:ZEENAT PRAVEEN
Signing Date:01.11.2022
14:52:29
NEUTRAL CITATION NO: 2020/DHC/004527
investigation is at initial stage and the allegations are serious in
nature. It is stated that the CCTV footage dated 19.02.2021 was
analyzed in the presence of husband of complainant where he clearly
identified the applicant and his family members, but some other
persons were also seen in the footage who could not be identified by
him. It is further stated that custodial interrogation of
accused/applicant is required to trace the remaining accused persons
and also for the recovery of baseball bats/dandas as seen in the
CCTV footage.
5. I have heard the rival contentions and perused the record.
6. In the present case, it is seen that the allegations against the
applicant are of outraging the modesty of victim and several other
offences including causing sexual harassment, voluntarily causing
hurt, criminal intimidation as well as insulting the modesty of a
women through words, gesture or acts. The power under Section 438
Cr.P.C. remains discretionary power of the Court and needs to be
used in exceptional circumstances.
7. The Hon‟ble Supreme Court of India on 21.10.2022 in Crl.
Appeal no. 1834/2022 , while cancelling the anticipatory bail granted
to the respondent by the High Court, has made certain important
observations for grant of anticipatory bail, which are as under:
“...In many anticipatory bail matters, we have noticed one
common argument being canvassed that no custodial
interrogation is required and, therefore, anticipatory bail may
be granted. There appears to be a serious misconception of
law that if no case for custodial interrogation is made out by
the prosecution, then that alone would be a good ground to
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BAIL APPLN. 2944/2022 Page 4 of 6
Digitally Signed
By:ZEENAT PRAVEEN
Signing Date:01.11.2022
14:52:29
NEUTRAL CITATION NO: 2020/DHC/004527
grant anticipatory bail. Custodial interrogation can be one of
the relevant aspects to be considered along with other grounds
while deciding an application seeking anticipatory bail. There
may be many cases in which the custodial interrogation of the
accused may not be required, but that does not mean that the
prima facie case against the accused should be ignored or
overlooked and he should be granted anticipatory bail. The
first and foremost thing that the court hearing an anticipatory
bail application should consider is the prima facie case put up
against the accused. Thereafter, the nature of the offence
should be looked into along with the severity of the
punishment. Custodial interrogation can be one of the grounds
to decline custodial interrogation. However, even if custodial
interrogation is not required or necessitated, by itself, cannot
be a ground to grant anticipatory bail...”
8. Thus, three points that have to be kept in mind for grant of
anticipatory bail, to sum up, are (i) prima facie case against accused,
(ii) nature of offence, and (iii) severity of the punishment. The
gravity of the offences in the present case is apparent from the fact
that specific allegations of outraging the modesty of complainant „R‟
have been levelled by her, which finds mention in both her complaint
as well as in the statement recorded under section 164 Cr.P.C.
Whether any cross FIRs or cross complaints have been filed or are
pending, at this stage, have no bearing on the facts of the present
case.
9. When the facts of the present case are tested in the light of the
above judgment, gravity of the offence and the seriousness of the
allegations do not persuade this Court to grant anticipatory bail to the
present accused/ applicant. In case the applicant is aggrieved by the
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BAIL APPLN. 2944/2022 Page 5 of 6
Digitally Signed
By:ZEENAT PRAVEEN
Signing Date:01.11.2022
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NEUTRAL CITATION NO: 2020/DHC/004527
fact that the complaints filed by him against the other party have not
been entertained by the police, he may take appropriate action in law
regarding the same.
10. The judgments relied upon by the learned senior counsel does
not help the case of the applicant. As regards the reliance placed upon
the judgment in Sushila Aggarwal (supra), even in this case, the
Apex Court in para nos. 85.5 and 92.4 held that the considerations for
grant of anticipatory bail would be the nature and gravity of the
offences, role attributed to the applicant and the facts of the case.
11. In view of the above facts and circumstances of the case, this
Court is of the considered view that no ground is made out for
exercising discretion of grant of anticipatory bail to the
accused/applicant.
12. Accordingly, the petition, along with pending application,
moved on behalf of the accused/applicant stands dismissed.
13. It is, however, clarified that the observations made in this order
shall have no effect on the merits of the case during trial.
SWARANA KANTA SHARMA, J
OCTOBER 31, 2022/kss
Signature Not Verified
BAIL APPLN. 2944/2022 Page 6 of 6
Digitally Signed
By:ZEENAT PRAVEEN
Signing Date:01.11.2022
14:52:29