delhi high court

Delhi High Court: An application was filed under Section 439 of the Code of Criminal Procedure, 1973 seeking regular bail dated 20-05-2022 under Sections 376D, 377, 328, 506, 509 and 34 of Penal Code, 1860. Saurabh Banerjee, J., released the applicant on bail under Sections 376D, 377, 328, 506, 509 and 34 of Penal Code, 1860 on furnishing a personal bond in the sum of Rs. 25,000 along with one surety of the like amount by a family member/ friend having no criminal case pending against them, subject to the satisfaction of the learned Trial Court.

As per FIR, the applicant introduced the mother of the prosecutrix to the co-accused in the present FIR. The co-accused and the prosecutrix entered a relationship with each other. It is alleged that, after some time, the said co-accused started harassing and blackmailing the prosecutrix by threatening to make their private videos public. To get the discord settled, sometime in March 2022, the applicant offered to mediate and called the co-accused and the prosecutrix to his house, where, after offering an intoxicating cold drink to the prosecutrix, the applicant and co-accused indulged in sexual intercourse with her and made a video of the same. Thereafter, the applicant was arrested on 21-05-2022 and has been in continuous judicial custody since then.

Counsel for the applicant submitted that the statement of the prosecutrix under Section 164 Criminal Procedure Code and the one given while deposing before the Trial Court are in favour of the applicant as on both occasions, she has not named the applicant but only the co-accused for having forcible sexual intercourse with her. The other allegation qua the applicant making a video of the said forcible sexual intercourse done by the co-accused stands vitiated considering the FSL Report filed along with the supplementary chargesheet which clearly states that in the said FSL Report, no such videos were found to exist on the mobile phone of the applicant.

Counsel for the State submitted that allegations are grave in nature and punishable with imprisonment of not less than 20 years, which may extend to life imprisonment. The mobile phones(s) of the applicant were not seized at the time of his arrest and were only handed over after some time by a relative of the applicant after allegedly deleting all the photo(s)/ video(s) therein.

The Court noted that as per the Nominal Roll of the applicant, the accused has no past antecedents, his jail conduct has been satisfactory and there is no pending FIR(s) against him except the present one. Further, the applicant has been in continuous judicial custody since his arrest on 21-05-2022. The prosecutrix in two versions, one in her statement under Section 164 CrPC and the other in her deposition before the Trial Court, consistently, only named the co-accused and did not say anything about the applicant.

The Court opined that there is no direct evidence against the applicant as the prosecutrix has herself stated so. Moreover, there is no video as on date. Even otherwise, both the above are matters of trial. Thus, there is no fruitful purpose of custodial interrogation of the applicant and considering the said factors, the applicant has exhausted sufficient time behind bars with no proper redressal and there is every likelihood that the conclusion of the trial is going to take sufficient time.

The Court concluded that though the applicant was named in the FIR as an accused and the offences involved are heinous in nature, however, the Court is mindful of the fact that the status of the applicant is merely that of a suspect till the outcome of the proceedings emanating therefrom as the applicant is innocent till proven guilty. In view thereof, keeping the applicant behind bars will be violative of Article 21 of The Constitution of India, when, as per this Court, judicial custody of the applicant is not required at this stage.

Thus, the Court released the applicant on bail in subject to following conditions:

i. Applicant shall not leave the National Capital Territory of Delhi without prior permission of this Court and shall ordinarily reside at the address as per prison records. If he wishes to change is residential address, he shall immediately intimate about the same to the Jail Superintendent by way of an affidavit.

ii. The applicant shall surrender his passport to the Investigating Officer, within three days. If he does not possess the same, he shall file an affidavit before the Investigating Officer to that effect within the stipulated time.

iii. The applicant shall appear before the Court as and when the matter is taken up for hearing.

iv. The applicant shall join an investigation as and when called by the Investigating Officer concerned. He shall not obstruct or hamper the police investigation and shall not play mischief with the evidence collected or yet to be collected by the Police.

v. The applicant shall provide all his mobile numbers to the Investigating Officer concerned which shall be kept in always working condition and shall not switch off or change the mobile number without prior intimation to the Investigating Officer concerned. The mobile location be kept on at all times.

vi. Applicant shall report to the Investigating Officer at PS: Khyala, Delhi once in the first week of every month unless leave of every such absence is obtained from the learned Trial Court.

vii. Applicant shall not indulge in any criminal activity and shall not, in any manner, communicate with or meet any of the prosecution witnesses, the victim or any member of the victim’s family or tamper with the evidence of the case or try to dissuade them from disclosing such facts to the Court or to any police officials.

[Shan Mohd v State, 2023 SCC OnLine Del 5380, decided on 25-08-2023]

Advocates who appeared in this case :

Mr. Akshay Bhandari, Advocate for applicant

Mr. Mukesh Kumar, APP for the State with SI Chandra Shekhar, PS: Khyala and W/SI Priyanka, PS: Rajouri Garden.

Mr. S.M. Popli, Advocate for prosecutrix alongwith prosecutrix.

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