BAIL APPLN./417/2019 of MOHD. ADIL Vs STATE (NCT OF DELHI)

$-9 & 10*IN THE HIGH COURT OF DELHI AT NEW DELHI+BAIL APPLN. 395/2019ABDUL HANNAN Petitioner

CORAM:HON'BLE MR. JUSTICE CHANDER SHEKHARORDERo/o 15.05.2019

1. These applications have been filed under Section 438 of theCode of Criminal Procedure, 1973 (Cr.P.C.) for the grant ofanticipatory bail to the petitioners in FIR No.225/2018 dated4.9.2018, registered with the Police Station: Darya Ganj, under

Sections 354/354-A/354-D/376/385/506/509/34 of the Indian PenalCode, 1860 (IPC).

2. The brief facts from the case of the areemanating prosecution that the FIR in the case has been registered on the basis of thecomplaint lodged by the prosecutrix wherein she has alleged that shebefriended one Adnan Ashraf, co-accused in the year 2013. In themonth of July, 2015, Adnan Ashraf invited her to hotel for partyand there he intoxicated her and took obscene photographs of theprosecutrix to blackmail her in the future. Thereafter, Adnan Ashrafalong with his two friends, namely, Abdul Hannan and Md. Adil('petitioners', herein) sexually harassed/assaulted her on manyoccasions after blackmailing her on the basis of the above-mentionedphotographs. It is further alleged that on 22.6.2016, the accusedtook her before Maulana and there Adnan Ashraf marriedpersons her after her to do so in the of the compelling presence petitioners.Further, in the month of November, 2016, Adnan Ashraf and thetouched the in petitioners forcibly prosecutrix inappropriately photostudio and tried to rape her but somehow she managed to escape.

3. The prosecution has filed the status report wherein it is statedthat during the course of investigation, the statement of theprosecutrix under Section 164 Cr.P.C. was recorded by theMetropolitan Magistrate on 10.9.2018 in which, she supported thefacts mentioned in the FIR of the present case and stated that theaccused Adnan Ashraf had married her after putting her m fear,wherein his two friends Abdul Hannan and Md. Adil were witnesses.They had sexually harassed/assaulted her on many occasions.

Thereafter, on 10.9.2018, Adnan Ashraf got arrested in the presentcase whereas the petitioners are absconding and against whomapplication for declaring them proclaimed offenders is alreadypending before the concerned Court.

4. It is perused that the first anticipatory bail application filed onbehalf of the petitioner-Abdul Hannan before this Court waswithdrawn vide order dated 17.12.2018 and the first anticipatory bailapplication filed on behalf of petitioner-Md. Adil before this Courtwas withdrawn vide order dated 19.12.2018 and these are the secondanticipatory bail applications which have been moved before thisCourt by the petitioners.

5. Learned counsel for the petitioners submitted that the co-accused Adnan Ashraf after being in judicial custody for four monthshas already been granted bail by the Sessions Court vide order dated17.1.2019 copy whereof is on the record.

6. It is also submitted by the learned counsel for the petitionersthat the letters as well as the photographs placed on the record showthat the complainant on her own will married the main accused andthe rest of the allegations regarding the exploitation, etc. are false andjfrivolous which is also evident from the letters written by thecomplainant in the year 2016 and 2017.

7. Per contra, the learned APP for the State submitted that thecharge-sheet has already been filed and the proceedings under Section82 Cr.P.C. initiated against the petitioners are going on.

8. Anticipatory bail may be granted when there is material onrecord to show that prosecution was inherently doubtful or where

there is material on record to show that there is possibility of falseimplication. However, when the element of criminality is involved;the custodial interrogation is required and/or the other aspects andfacts are required to be unfolded in investigation, the applicant is notentitled for anticipatory bail.

9. It is also well-settled law that while considering the question ofgrant of anticipatory bail, the Court prima facie has to look into thenature and gravity of the alleged offence and the role of the accused.The Court is also bound down and must look into, while exercising itspower to grant bail, the antecedents of the applicant and also thepossibility of the applicant fleeing from justice, apart from otherfactors and parameters in view of the facts of each and every case.

10. In the matter of Dr. Subhash Kashinath Mahajan v. State ofMaharashtra & Anr., in Criminal Appeal No.416/2018, decided on

20.3.2018, the Supreme Court has held as under:

"112. The following factors and parameters can be takeninto consideration while dealing with the anticipatorybail:into consideration while dealing with the anticipatorybail:

(i) The nature and gravity of the accusation and the exactrole of the accused must be properly comprehendedbefore arrest is made;role of the accused must be properly comprehendedbefore arrest is made;

(ii) The antecedents of the applicant including the fact asto whether the accused has previously undergoneimprisonment on conviction by court in respect of anycognizable offence;to whether the accused has previously undergoneimprisonment on conviction by court in respect of anycognizable offence;

(iii) The possibility of the applicant to flee from justice;(iv) The possibility of the accused's likelihood to repeatsimilar or other offences;(iv) The possibility of the accused's likelihood to repeatsimilar or other offences;

(v) Where the accusations have been made only with theobject of injuring or humiliating the applicant byarresting him or her;object of injuring or humiliating the applicant byarresting him or her;

(vi) Impact of grant of anticipatory bail particularly incases of large magnitude affecting very large number ofpeople;

(vii) The courts must evaluate the entire availablematerial against the accused very carefiilly. The courtmust also clearly comprehend the exact role of theaccused in the case. The cases in which the accused isimplicated with the help of Sections 34 and 149 of thePenal Code, 1860 the court should consider with evengreater care and caution because over implication in thecases is matter of common knowledge and concern;(viii) While considering the prayer for grant ofanticipatory bail, balance has to be struck between twofactors, namely, no prejudice should be caused to thefree, fair and full investigation and there should beprevention of harassment, humiliation and unjustifieddetention of the accused;

(ix) The court to consider reasonable apprehension oftampering of the witness or apprehension of threat to thecomplainant;

(x) Frivolity in prosecution should always be consideredand it is only the element of genuineness that shall haveto be considered in the matter of grant of bail and in theevent of there being some doubt as to the genuineness ofthe prosecution, in the normal course of events, theaccused is entitled to an order of bail."

11. Our own High Court in the matter of Vivek Gaur v. Naresh

Kumar Karotia & Ors., 2012(1) JCC 450 has held as under;

"12. The power of grant of anticipatory bail has beenconferred by the Code of Criminal Procedure,concurrently, on the Sessions Court and the High Court.Normally, as matter of fact, the practice which isprevalent in Delhi is that an accused is first relegated tofile petition before the Sessions Court and after havingdone so, if he is unable to get the requisite relief, he filesa second anticipatory bail application before the High

Court which is considered by way of judicial review, inas much as, it reconsiders not only the order passed bythe learned Sessions Court but also independently assessthe facts as to whether the accused person, in the givencase, is entitled to grant of bail or not. Once these twoopportunities are utilized by an accused and he isunsuccessful, ordinarily, the accused must submit to theprocesses of law. The law does not countenance that awho fails to avail the of law filesperson protection successive/repeated anticipatory bail applications, getthem rejected and yet does not submit to the processes oflaw, and thereafter, sits on the fence observing theproceedings and then suddenly resurfaces after the chargesheet has been filed and applies to the Court for grant ofanticipatory bail.

13. This is precisely what has happened in the instantcase. The respondents anticipatory bail applications wererejected earlier three or four times after which they oughtto have submitted to the processes of law. Normally, awho seeks of law must submit to theperson protection processes of law. On the contrary, the respondents weredeclared proclaimed offenders after their anticipatory bailapplication having been rejected. Certainly, persondeclared as proclaimed offender may not be denied thebenefit of anticipatory bail in all circumstances. Adistinction has to be made where person has beendeclared as proclaimed offender without his knowledgeand cases where person knows about his being requiredby law enforcing agency yet tries to escape fi"om thesame by hook or by crook and then suddenly finds anopportune time to obtain an order to insulate his liberty.Such benefit conferred on this kind of unscrupulousaccused persons, in my view, is dis-service to the law. Ifeel that the learned Additional Sessions Judge, in theinstant case, by granting the benefit of anticipatory bail tothe respondents, has not exercised his discretionand as were declared asjudiciously properly they proclaimed offenders and their application for

anticipatory bail had been rejected."

12. I have gone through the material on record. The material onrecord, primci-fcicie, does not in any manner, reflect that theprosecution is inherently doubtful or there is possibility of falseimplication. perusal of the FIR also shows that the prosecutrix hasspecifically alleged the role of the petitioners vis-a-vis theblackmailing and sexual assaults. She has specifically named thepetitioners in the complaint as well as in the statement under Section164 Cr.P.C. The allegations against the petitioners are grave andserious in nature. In view of the allegations made in the FIR and thestatement of the prosecutrix under Section 164 Cr.P.C., the custodialinterrogation of the petitioners is essential. The petitioners have notco-operated in the investigation, rather they have fled from the justice.13. Further, in the present case, the anticipatory bail applications ofthe petitioners have already been dismissed by the Sessions Court videorder dated 12.12.2018, and the anticipatory bail applications filed bythe petitioners before this Court were dismissed as withdrawn on17.12.2018 and 19.12.2018, respectively. In this case, the charge-sheet has already been filed and admittedly, the proceedings underSection 82 Cr.P.C. stands initiated by the Trial Court against thepetitioners. The petitioners, who filed the anticipatory bailapplications, invoking the jurisdiction of the Sessions Court and thisCourt under the provisions of law must himself/herself also follow theprocess of law. The petitioners ought to have, after the dismissal oftheir anticipatory bail applications by the Sessions Court on12.12.2018 and/or when the anticipatory bail application before this

Court, respectively, were withdrawn by them, ought to have, at least,surrendered to the of law and the Theprocess joined investigation. filing of the present applications under Section 438 Cr.P.C. for thegrant of anticipatory bail to the petitioners is misuse of the processof law in light of the aforesaid circumstances.

14. The arguments advanced by the learned counsel for thepetitioners do not convince this Court, in any manner, to grantanticipatory bail to the petitioners more so in view of the allegationsmade in the FIR, the statement of the prosecutrix under Section 164Cr.P.C. and the material on record as also in view of the conduct ofthe petitioners as discussed hereinabove.

15. In view of the aforesaid discussions, facts and circumstances ofthe case, this Court does not find any merit in the anticipatory bailapplications of the petitioners. Accordingly, the anticipatory bailapplications are dismissed.

16. It is clarified that whatever is discussed or observedhereinabove is only prima facie view of this Court, at this stage, andthe same shall not tantamount to any expression or opinion on themerits of the case.

MAY 15,2019/rk

CHANl>Efir^HEKHAR, J