Delhi High Court: In a petition filed for seeking regular bail in connection with FIR registered under Sections 376 and 420 of the Penal Code, 1860 (‘IPC’), Vikas Mahajan, J.*, opined that the probative value of evidence, the credibility and reliability of the complainant, would be seen by the Trial Court during the trial, but the present Court could not be unmindful of the gaps that had appeared in the complainant’s version, which tilted the balance in the petitioner’s favour for the grant of bail. The Court opined that it was not in dispute that the petitioner did not have any criminal record and since, the investigation was complete and the petitioner’s custody was no more required for making recoveries for him, therefore, no useful purpose would be served in keeping the petitioner in jail. Thus, the Court granted bail to the petitioner, subject to his furnishing a personal bond of Rs. 25,000 of the like amounts, subject to the satisfaction of the Trial Court or Jail Superintendent.
Background
On 25-12-2020, the complainant met the petitioner on a dating app called ‘Hinge’ and they became good friends and eventually fell in love. The complainant alleged that the petitioner revealed to her that he had his engineering degree from IIT Kharagpur, his double master from U.K and New Zealand and further, Ph.D degree from Kings College, London. They planned to physically meet in Delhi on 06-01-2021, but on 05-01-2021, the petitioner informed that he needed to be hospitalised as he was down with malaria. The petitioner asked the complainant to pay him Rs. 25,000 as loan with a promise to return the same after April, 2021.
It was also alleged that on 01-02-2021, the petitioner came to Delhi and the complainant picked him up from the Airport and they arrived at AIRBNB. Further, after dropping the luggage, the complainant booked another cab and brought petitioner to her house where her flatmates were also present. The complainant stated that the petitioner had sexual intercourse with her on the pretext of marriage. Thereafter, on the same day, both the complainant and the petitioner stayed in the AIRBNB for the next four days and had repeated sex.
The complainant alleged that on 04-09-2021, the petitioner again visited Delhi, stayed in her flat and had sexual intercourse with her on the pretext of marriage and long companionship. The complainant also stated that she had given a total of Rs. 1.2 crore to the petitioner for his treatment. Thereafter, an FIR was registered under Sections 376 and 420 of the IPC, and accordingly, the petitioner was arrested.
Thus, the petitioner filed the present petition seeking regular bail.
Analysis, Law, and Decision
The Court opined that there had been exchange of numerous messages between the petitioner and the complainant and in none of the messages, there was any promise made by the petitioner to marry her or a proposal of marriage put forth by the complainant, which was accepted by the petitioner. The Court further noted that the complainant’s cross-examination, where she admitted having sent erotic stories to the petitioner and also, admitted that the obscene photographs and videos recovered from the petitioner’s phone, were taken with her consent. The Court opined that in this backdrop, prima facie, the sexual intercourse appeared to be consensual and there did not seem to be any false promise of marriage or consent was obtained on a misconception of any fact.
Further, regarding money which the petitioner took from the complainant by misrepresenting his ill-health, the Court noted that it appeared from the status report filed by the State, that no document related to medical treatment was found by the Forensic Science Laboratory from the petitioner’s mobile phone, sim card and laptop. Further, the complainant in her cross-examination, herself admitted that she had given money to the petitioner for his help, and out of her love and affection for him. The Court further opined that the first payment was made to the petitioner on 11-01-2021 as a loan for his malaria treatment, and it was not understandable that, if the said amount was not repaid by the petitioner, then why did the complainant continued to make such huge payments to him.
Further, the Court relied on Bimla Tiwari v. State of Bihar, 2023 SCC OnLine SC 51 and opined that the probative value of evidence, the credibility and reliability of the complainant, would be seen by the Trial Court during the trial, but the present Court could not be unmindful of the gaps that had appeared in the complainant’s version, which tilted the balance in the petitioner’s favour for the grant of bail.
The Court opined that it was not in dispute that the petitioner did not have any criminal record and since, the investigation was complete and the petitioner’s custody was no more required for making recoveries for him, therefore, no useful purpose would be served in keeping the petitioner in jail. Thus, the Court granted bail to the petitioner, subject to his furnishing a personal bond of Rs. 25,000 of the like amounts subject to the satisfaction of the Trial Court or Jail Superintendent.
The Court further directed the petitioner to appear before the Court as and when the matter was taken up for hearing. The petitioner should provide his mobile number to the concerned Investigating Officer which should be kept in working condition at all times and he should not challenge the mobile number without prior intimation to the concerned Investigating Officer. Further, the Court stated that the petitioner should not indulge in any criminal activity and should not communicate with or come in contact with the complainant, witnesses or any family members of the complainant and witnesses.
[Anil Nirwan v. State (NCT of Delhi), 2024 SCC OnLine Del 3, decided on 03-01-2024]
*Judgment authored by- Justice Vikas Mahajan
Advocates who appeared in this case :
For the Petitioner: L. S. Chaudhary and Karanveer Singh, Advocates.;
For the Respondent: Hemant Mehla, APP for State with SI Komal PS Maidan Garhi, Vaibhav Dubey, Pradyuman Kaistha and Shubham Jain, Advocates
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