Ahshan Ali vs. State

2021:DHC:3300

* IN THE HIGH COURT OF DELHI AT NEW DELHI
st
Date of decision: 21 October, 2021
IN THE MATTER OF:
+ BAIL APPLN. 2116/2021 & CRL.M.(BAIL) 970/2021
AHSHAN ALI ..... Petitioner
Through: Mr. Gaurav Kochar, Advocate.
versus
STATE ..... Respondent
Through: Ms. Kusum Dhalla, APP for the State
with SI Shubham Singh, PS Jyoti
Nagar.
Mr. Yogesh Gaur, Advocate for the
complainant.
CORAM:
HON'BLE MR. JUSTICE SUBRAMONIUM PRASAD

SUBRAMONIUM PRASAD, J.
1. The petitioner has filed the instant petition under Section 439 Cr.P.C
seeking bail in FIR No.354/2020 dated 01.08.2020, registered at
Police Station Jyoti Nagar for offences under Sections
323/376/506/313/377/354/34 IPC.
2. Facts, in brief, leading to the present petition are as under –:
a) The instant FIR was lodged on the statement of the prosecutrix
wherein she stated that she got married to one Asheem Raja S/o
Shri Ahshan Ali (the petitioner herein) R/o H.No.219/7,
Kardampuri, Delhi on 23.03.2019 according to Muslim Rites and
Customs. It is stated that after sometime her in-laws started to
harass her but she remained silent. It is stated that her mother-in-
law is no more. She stated that her husband used to beat her and
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he had subjected her to unnatural sex several times. It is stated
that the prosecutrix came to know that her husband was having
an affair with some other woman and therefore, she tried to make
him understand, but he did not listen to her. It is stated that
thereafter she informed the petitioner herein, about her husband.
It is stated that the petitioner assured her that he would talk to her
husband. It is stated that the husband of the prosecutrix remained
out of house for several days and only the prosecutrix and the
petitioner used to reside in the house and he would behave in a
very pleasant manner with her. It is stated that on 24.06.2020 the
petitioner asked her to make tea. It is stated that when she went
to the room of the petitioner to give him tea, the petitioner herein
caught hold of her hand, and pulled her towards him and raped
her. It is stated that the petitioner threatened her with dire
consequences if she told anyone about the incident. It is stated
that out of fear the prosecutrix could not muster the courage to
tell her parents about the incident. It is stated that the petitioner
raped her on 2-3 occasions. It is stated that the prosecutrix
became tensed. It is stated that one day when the brother-in-law
of the prosecutrix enquired as to why she was sad, she revealed
the entire story to him. It is stated that the brother-in-law of the
prosecutrix told her that he would talk to the petitioner and
assured her that everything would be fine. It is stated that after
that day the behaviour of her brother-in-law changed and that on
several occasions, her brother-in-law tried to touch the
prosecutrix inappropriately. It is stated that at last the prosecutrix
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told her parents evertything and asked them to come and take her
along. On the complaint of the prosecutrix, FIR No.354/2020
dated 01.08.2020, was registered at Police Station Jyoti Nagar
for offences under Sections 323/376 IPC.
b) The petitioner was arrested on 01.08.2020.
c) Charge-sheet was filed on 24.09.2020
d) The petitioner filed an application under Section 439 Cr.P.C. for
grant of anticipatory bail. The same was dismissed by the learned
ASJ, Shahdara, Karkardooma Courts on 08.06.2021.
e) Thereafter the petitioner has approached this Court by filing the
instant bail application.
4. Heard Mr. Gaurav Kochar, learned counsel for the petitioner, Ms.
Kusum Dhalla, learned APP for the State and Mr. Yogesh Gaur, learned
counsel for the complainant and perused the material on record.
5. Mr. Gaurav Kochar, learned counsel for the petitioner, states that the
petitioner is a 65 years old man having ailments. He states that charge-sheet
has been filed. He further states that the instant case arises out of a
matrimonial dispute where the prosecutrix has tried to implicate everybody
in the family. He further states that the incident took place on 24.06.2020
but the FIR was lodged only on 01.08.2020. He states that no explanation
has been given by the prosecutrix for the delay. He states that the
prosecutrix has made allegations against the petitioner who is the father-in-
law and also against the brother-in-law. He states that in fact the prosecutrix
has refused to have internal examination. He states that it has been a year
and three months since the petitioner has been in custody i.e. since
01.08.2020 and that in the present circumstances, it is unlikely that the trial
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will commence in the near future. The learned counsel for the petitioner,
therefore, submits that the petitioner ought to be granted bail.
6. Per contra , Ms. Kusum Dhalla, learned APP for the State, contends
that the petitioner is the father-in-law of the prosecutrix who is accused of a
very serious offence. She states that the petitioner might threaten the
prosecutrix if granted bail.
7. Mr. Yogesh Gaur, learned counsel for the complainant, also opposes
the bail by contending that the prosecutrix was harassed by her husband, her
father-in-law and her brother-in-law. He states that the petitioner has raped
the prosecutrix and therefore bail ought not to be granted to him.
8. The parameters of granting bail have been laid down by the Supreme
Court in a number of cases. In Ram Govind Upadhyay v. Sudarshan Singh,
(2002) 3 SCC 598, the Supreme Court laid down the factors that must guide
the exercise of the power to grant bail in the following terms :
“ 3. Grant of bail though being a discretionary order —
but, however, calls for exercise of such a discretion in
a judicious manner and not as a matter of course.
Order for bail bereft of any cogent reason cannot be
sustained. Needless to record, however, that the grant
of bail is dependent upon the contextual facts of the
matter being dealt with by the court and facts,
however, do always vary from case to case. While
placement of the accused in the society, though may be
considered but that by itself cannot be a guiding factor
in the matter of grant of bail and the same should and
ought always to be coupled with other circumstances
warranting the grant of bail. The nature of the offence
is one of the basic considerations for the grant of bail
— more heinous is the crime, the greater is the chance
of rejection of the bail, though, however, dependent on
the factual matrix of the matter.
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Supreme Court observed as under:
“9. We are of the opinion that the impugned order is
clearly unsustainable. It is trite that this Court does
not, normally, interfere with an order passed by the
High Court granting or rejecting bail to the accused.
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However, it is equally incumbent upon the High Court
to exercise its discretion judiciously, cautiously and
strictly in compliance with the basic principles laid
down in a plethora of decisions of this Court on the
point. It is well settled that, among other
circumstances, the factors to be borne in mind while
considering an application for bail are:
i. whether there is any prima facie or reasonable
ground to believe that the accused had
committed the offence;
ii. nature and gravity of the accusation;
iii. severity of the punishment in the event of
conviction;
iv. danger of the accused absconding or fleeing, if
released on bail;
v. character, behaviour, means, position and
standing of the accused;
vi. likelihood of the offence being repeated;
vii. reasonable apprehension of the witnesses being
influenced; and
viii. danger, of course, of justice being thwarted by
grant of bail.
10 . It is manifest that if the High Court does not advert
to these relevant considerations and mechanically
grants bail, the said order would suffer from the vice of
non-application of mind, rendering it to be illegal.”

9. Rape is an extremely heinous offence which stipulates minimum
punishment of 7 years and can go up to life. The petitioner is accused of a
very heinous offence of raping his own daughter-in-law. The fact that the
FIR was filed after two months does not mean that the prosecutrix has filed
a false case. It is stated in the FIR that the prosecutrix was scared and was
reluctant to tell her parents about the incident, but when she was repeatedly
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harassed and raped by the petitioner herein, she mustered the courage and
informed her parents about the incident.
10. Rape is not merely a physical assault; it is often destructive of the
whole personality of the survivor. The act of rape has the ability to scar the
mental psyche of the survivor and this trauma can persist for years. The
Supreme Court in Shyam Narain vs. State (NCT of Delhi), (2013) 7 SCC 77
had observed as follows:
27. Respect for reputation of women in the society
shows the basic civility of a civilised society. No member of
society can afford to conceive the idea that he can create a
hollow in the honour of a woman. Such thinking is not only
lamentable but also deplorable. It would not be an exaggeration
to say that the thought of sullying the physical frame of a woman
is the demolition of the accepted civilised norm i.e. "physical
morality". In such a sphere, impetuosity has no room. The
youthful excitement has no place. It should be paramount in
everyone's mind that, on the one hand, society as a whole cannot
preach from the pulpit about social, economic and political
equality of the sexes and, on the other, some perverted members
of the same society dehumanise the woman by attacking her body
and ruining her chastity. It is an assault on the individuality and
inherent dignity of a woman with the mindset that she should be
elegantly servile to men.

11. Looking at the fact that the petitioner is the father-in-law of the
prosecutrix, the possibility of threatening the prosecutrix cannot be ruled out
at this juncture.
12. Accordingly, Accordingly, the bail application is dismissed along
with the pending application(s), if any. However, looking at the fact that the
petitioner is in custody since 01.08.2020, the trial court is directed to hear
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the arguments on charge and examine the prosecutrix as expeditiously as
possible, preferably within six months.
13. It is made clear that the observations made in this order are not on the
merits of the case.



SUBRAMONIUM PRASAD, J
OCTOBER 21, 2021
Rahul
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