BAIL APPLN./1299/2017 of IMRAN KHAN Vs STATE

$-*IN THE HIGH COURT OF DELHI AT NEW DELHI

*+BAIL APPLN. 1299/2017

IMRANKHAN

PetitionerMr. Vishesh Sharma, Advocate.

Thi-ough:

Versus

STATE

Through:

RespondentMr. Akshai Malik, APP for the Statewith SI Sumit Dalai, P.S. BhalsawaDairy.

CORAM:

HON'BLE MS. JUSTICE SANGITA DHINGRA SEHGAL

ORDER10.10.2017

%10.10.20171.By way of the present petition filed under Section 438 of the Code ofCriminal Procedure, 1973 (hereinafter referred to as 'Cr.P.C.'), thepetitioner seeks grant of AnticipatoryBail in FIR No. 245/2015under Sections 147/148/149/452/323/376D/120(B)of the Indian PenalCode, 1860 (hereinafter refeiTed to as 'IPC') registered at PoliceStation Bhalsawa Dairy, New Delhi.1.By way of the present petition filed under Section 438 of the Code ofCriminal Procedure, 1973 (hereinafter referred to as 'Cr.P.C.'), thepetitioner seeks grant of AnticipatoryBail in FIR No. 245/2015under Sections 147/148/149/452/323/376D/120(B)of the Indian PenalCode, 1860 (hereinafter refeiTed to as 'IPC') registered at PoliceStation Bhalsawa Dairy, New Delhi.

It is the case of prosecution as stated in the F.I.R. that on 14.04.2017at about 7:30 p.m., while she was standing on the street beside her.house, group of 30-35 persons consisting of men, women andchildren came towards her and started using abusive language andsaying "Baluchon, last time you were able to save yourselves, but this

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Signature Not Verified

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we will showwhatwe are." TheincludedJamil grouppersonsnamelyKhan, Habib, Ali Hasan, Gulfam, Imran, Ntfees, Dilshad, Ameen,Guthari, Asha, Afsana, Jaahira, Muskaan, Nargis, Taahira, Chando,Afroji, Naseem and few others. The persons in the group werecarrying wooden sticks, swords and stones and after hurling theabusive language they started pelting stones at the complainant'shouse. At the same time, Aamin @ Shainicharwas pelting stonesfrom the of his house. After that when thewas rooftop complainantentering her house, Habib, Ali Hasan, Gulafam and Imran forciblyentered the complainants' house and all of them raped theIcomplainantone by one and fled from the house. After thecomplainantgained her composure and wore her clothes, she cameoutsideherhouseand saw thatthe group ofpersonsstillpeltingstonesat her house. During the incident Rihana, Shabana and Bano gotinjured. After some time the police party reached at the place ofoccurrence and took the complainant along with the injured to theBJRM Hospital.

Mr. Vishesh Sharma,the learnedcounsel for the petitionercontendedthat the subject FIR was registered against the petitioner after thedelay of one day; that the co-accused persons Afsana, Jamil Khan,Nargis, Rukhsana, Afrozi, Tahira, Bilkis were released on RegularBail; that no specific role has been assigned/shown against thepetitioner; that accused has been implicated in this case only to givemore gravity to Section 376(D) of IPG. It is further contended that

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there is no chance of abscondingor tamperingwith the Prosecution'evidence^andthus AnticipatoryBail shouldbe grantedto him.Per Contra,Mr. AkshaiMalik,APP for the state vehementlyopposedthe bail applicationand contendedthatthepetitioneris not liableto begranted Anticipatory Bail as he has been actively involved in thecommissionof serious offence. He further stated that the accused ,may evade the processof law, threatenthe complainantand may alsotamper with the.evidencesbeing collectedduring investigation

I have heard the learnedcounselfor the parties at lengthand perusedthe material on record.

The MLC report No.132643 of Babu Jagjivan Ram MemorialHospital highlights physical assault on the prosecutrix. The reportfurther reveals bruise of size 4X4 c.m. on lateral side of Right leg,abrasionof size of 2X0.5 c.m. on left hand, swellingon righttemporalregion of size 2X2 c.m., swelling over left hand and restrictedrnovement.The prosecutrixin the FIR stated that "While I wasstanding on the street beside her house, group of 30-35 personsconsisting of rhen, women and children came towards rne and startedusing abusive language. They were carrying wooden sticks, swordsand stones and after hurling the abusive language they started peltingstones at my house. After that when I was entering the house, Habib,Ali Hasan, Gulafam and Imran forcibly entered the house and all ofthem raped me one by one and fled from the house. On regainingconsciousness I wore my clothes, and came outside the house and saw

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that the group of people were still peltingstones at the house." On aconjointreadingof the FIR and the MLC Report, prima facie caseagainst the petitioner can be made out.

Co-accusedTahira, Afsana, Jamil Khan, Nargis, Rukhsana, Afrozi,Bilkis, were granted bail, as being v/omen, the provision underSection376(D) IPC is not attractedagainstthem, thus this argumentdoes not come to the aid of the appelhnt.

The allegations leveled against the petitioner are serious and grave innature. The investigation is still in its embryonic stage, and thus thechance of the petitioner escapingthe procedure of law, tamperingwiththe evidence or thi-eateningthe complainant and witnesses exists.

In Kalyan Chandra Sarkar vs. Rajesh Ranjan, 2004 (7) SCC 528),the Apex court has laid down the principles of granting or refusingbail and held as under ;

"The law in regard to grant or refusal of bail is very wellsettled. The court granting bail should exercise its discretionin judicious manner and not as matter ofcourse. Thoughat the stage of grantingbail detailed examination ofevidence and elaborate documentation of the merit of thecase need not be undertaken,there is need to indicateinsuch orders reasons for prima facie concluding why bailwasbeinggrantedparticularlywheretheaccusedischarged of having committed serious offence. Any orderdevoid ofsuch reasons would sufferfrom non-application ofmind. It is also necessary for the court grantingbail toconsider among other circumstances, the following factorsalso before granting bail; they are:

a. The nature of accusation and the severity ofpunishmentin case ofconviction and the nature ofsupporting evidence.in case ofconviction and the nature ofsupporting evidence.

b. Reasonable apprehension of tampering with the witnessor apprehension ofthreat to the complainant.or apprehension ofthreat to the complainant.

c. Prima facie satisfaction of the court in support of thecharge."charge."

10.This principlewas furtherreiteratedin State of U.P. VS Amarmani

Tripathireportedin (2005)8SCC21 whereinthe Apex Courtheld asunder:

"It is well settled that the mattersto be consideredin anapplicationfor bail are

(i)whether there is any prima facie or reasonableground tobelieve that the accused had committed the offence;(ii) nature andgravityof the charge; (Hi) severityofthepunishmentin the eventofconviction;(iv) dangerofaccusedabscondingorfleeingifreleasedon bail;(v)character, behaviour,' means, position andstandingof the accused;-,(vi) likelihoodof the offencebeing repeated; (vii) reasonableapprehensionof thewitnessesbeing tamperedwith; and (viii) danger, ofcourse, of justice being thwarted by grant of bail(seePrahlad Singh Bhati vs. NCT, Delhi2001 (4)ground tobelieve that the accused had committed the offence;(ii) nature andgravityof the charge; (Hi) severityofthepunishmentin the eventofconviction;(iv) dangerofaccusedabscondingorfleeingifreleasedon bail;(v)character, behaviour,' means, position andstandingof the accused;-,(vi) likelihoodof the offencebeing repeated; (vii) reasonableapprehensionof thewitnessesbeing tamperedwith; and (viii) danger, ofcourse, of justice being thwarted by grant of bail(seePrahlad Singh Bhati vs. NCT, Delhi2001 (4)^SCC 280 andGurcharan Singh vs. State (DelhiAdministration)AIR 1978 SC 179).Administration)AIR 1978 SC 179).

(ii)While vague allegation that accused may tamperwith the evidenceor witnessesmay not be ground torefusebail, ifthe accusedis ofsuch characterthathismerepresenceat largeVvouldintimidatethe witnessesor if there is material to show that he will use hiswith the evidenceor witnessesmay not be ground torefusebail, ifthe accusedis ofsuch characterthathismerepresenceat largeVvouldintimidatethe witnessesor if there is material to show that he will use his

liberty to subvert justice or tamper with the evidence,then bail will be refused."•

9.Keeping in view the principle laid by the Apex Court and theaforementionedfactsandcircumstancesas wellas takingintoconsideration the specific role attributed to the appellant/accused andthe gravity of the offences alleged, this court does not deem it fit togrant anticipatory bail to the petitioner. Therefore the present petitionfiled by the petitioner is dismissed.10.Before parting with the above order, it is made clear that observationsmade in the order shall have no impact on the merit of the case.If.Accordingly the petition stands disposed of

SANGITSEHGAL, J/OCTOBER10,2017gr//4

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