Sanjay Jain vs State Of Nct Of Delhi on 7 December, 2017

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* IN THE HIGH COURT OF DELHI AT NEW DELHI
Order reserved on 05th December,2017
Order pronounced on 7th December,2017
+ BAIL APPLN. 1752/2017 CRL.M.A. 14404/2017
SANJAY JAIN …..Petitioner
Through: Ms. Ishita Jain, Advocate

versus

STATE OF NCT OF DELHI ….Respondent

Through: Mr. Amit Ahlawat, APP for the State.
CORAM:

HON’BLE MS. JUSTICE SANGITA DHINGRA SEHGAL

1. By way of the present petition filed under Section 438 of the
Criminal Procedure Code,1973 (hereinafter referred as ‘Cr.P.C.),
the petitioner seeks grant of anticipatory bail in respect of FIR
No. 0308 dated 21.07.2017, under Section 354/354A/506 of The
Indian Penal Code,1860(hereinafter referred as ‘IPC’), registered
by P.S. Jafarabad, New-Delhi.

2. Briefly stated the facts of the case are that the complaint was
lodged on 21.07.2017 by one Dimple who alleged that, on
17.07.2017 at around 4 pm her brother-in-law (devar), who used to
stay with her mother-in-law, had come to her house when she was
alone at home and forcefully tried to make physical relations with
her and even threatened her when she objected. The alleged
incident was narrated by her, to her husband who did not pay any
heed to it and then, later she narrated it to her brother and her aunt.
She reported the incident to the police officials and the complaint

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was lodged under the Sections 354/354A/506 of IPC.

3. Ms. Ishita Jain, the learned counsel for the petitioner contended
that that the present FIR filed against the petitioner is false and
fabricated; that the petitioner visited the house of the prosecutrix
on an invitation made by her for lunch; that the prosecutrix
threatens her husband and his family members many a times of
filing false cases of domestic violence, sexual harassment etc; that
in the year 2005, she filed a false case of domestic violence against
her husband, which was later on withdrawn by her; that her
behavior towards her husband and his family is unreasonable; that
she even went on a vacation, with her husband along with the
petitioner and a friend, a month before filing the FIR. Hence, the
present petition should be allowed.

4. Per Contra, learned APP has vehemently opposed the bail
application by stating that the petitioner has been evading arrest
and has not joined the investigation. He further alleged that the
anticipatory bail application has been previously rejected by the
learned ASJ keeping in view the seriousness of the allegations.
Hence, the present petition is liable to be set aside.

5. I have heard the learned counsel for the parties and perused the
material available on record.

6. Before adverting to the question raised in the present petition, it is
seen that the petitioner is charged for the offences under Sections
354/354A/506 of IPC. Section 354 IPC, makes penal the assault or
use of criminal force to a woman to outrage her modesty. The
essential ingredients of offence under Section 354 IPC are: (a) that

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the assault must be on a woman; (b) that the accused must have
used criminal force on her; (c) that the criminal force must have
been used on the woman intending thereby to outrage her modesty.
In Raju Pandurang Mahale vs State Of Maharashtra And Anr
reported in (2004) 4 SCC 371, it has been observed that :

“What constitutes an outrage to female modesty is
nowhere defined. The essence of a woman’s modesty
is her sex. The culpable intention of the accused is
the crux of the matter. The reaction of the woman is
very relevant, but its absence is not always decisive.
Modesty in this Section is an attribute associated with
female human beings as a class. It is a virtue which
attaches to a female owing to her sex. The act of
pulling a women, removing her saree, coupled with a
request for sexual intercourse, is such as would be an
outrage to the modesty of a woman; and knowledge,
that modesty is likely to be outraged, is sufficient to
constitute the offence without any deliberate intention
having such ourtrage alone for its object. As
indicated above, the word ‘modesty’ is not defined
in IPC. The shorter Oxford Dictionary (Third Edn.)
defines the word ‘modesty’ in relation to woman as
follows: “Decorous in manner and conduct; not
forward or lowe; Shame-fast: Scrupulously chast.”
Modesty is defined as the quality of being modest;
and in relation to woman, “womanly propriety of
behaviour; scrupluous chastity of thought, speech
and conduct.” It is the reserve or sense of shame
proceeding from instinctive aversion to impure or
coarse suggestions. As observed by Justice Patterson
in Rex v. James Llyod, (1876) 7 C P 817. In order
to find the accused guilty of an assault with intent to
commit a rape, court must be satisfied that the
accused, when he laid hold of the prosecutrix, not
only desired to gratify his passions upon her person
but that he intended to do so at all events, and

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notwithstanding any resistance on her part. The point
of distinction between an offence of attempt to
commit rape and to commit indecent assault is that
there should be some action on the part of the
accused which would show that he was just going to
have sexual connection with her. Webster’s Third
New International Dictionary of the English
Language defines modesty as “freedom from
coarseness, indelicacy or indecency, a regard for
propriety in dress, speech or conduct”. In the Oxford
English Dictionary (1933 Edn.), the meaning of the
word ‘modesty’ is given as “womanly propriety of
behaviour: scrupulous chastity of thought, speech
and conduct (in man or woman); reserve or sense of
shame proceeding from instinctive aversion to impure
or coarse suggestions.” In State of Punjab v. Major
Singh, AIR (1967) SC 63 a question arose whether a
female child of seven and a half months could be said
to be possessed of ‘modesty’ which could be outraged.
In answering the above question the majority view
was that when any act done to or in the presence of a
woman is clearly suggestive of sex according to the
common notions of mankind that must fall within the
mischief of Section 354 IPC. Needless to say, the
“common notions of mankind” referred to have to be
gauged by contemporary societal standards. It was
further observed in the said case that the essence of a
woman’s modesty is her sex and from her very birth
she possess the modesty which is the attribute of her
sex. From the above dictionary meaning of ‘modesty’
and the interpretation given to that word by this
Court in Major Singh’s case (supra) the ultimate test
for ascertaining whether modesty has been outraged
is whether the action of the offender is such as could
be perceived as one which is capable of shocking the
sense of decency of a woman. The above position was
noted in Rupan Deal Bajaj (Mrs.) and Anr. v.
Kanwar Pal Singh Gill and Anr., [1995] 6 SCC 194.

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When the above test is applied in the present case,
keeping in view the total fact situation, the inevitable
conclusion is that the acts of accused appellant and
the concrete role be consistently played from the
beginning proved combination of persons and minds
as well and as such amounted to “outraging of her
modesty” for it was an affront to the normal sense of
feminist decency.”

7. The petitioner has been charged for the offence under
Section 354 IPC i.e assault/criminal force to a woman to outrage
her modesty as well as for the offence under Section 354A IPC i.e
physical contact with explicit sexual overtures and demand of
sexual favour. Further, for the offence under Section 506 IPC,
which states that
“506. Punishment for criminal intimidation.–
Whoever commits, the offence of criminal intimidation
shall be punished with imprisonment of either
description for a term which may extend to two years,
or with fine, or with both; If threat be to cause death
or grievous hurt, etc.–And if the threat be to cause
death or grievous hurt, or to cause the destruction of
any property by fire, or to cause an offence
punishable with death or 1[imprisonment for life], or
with imprisonment for a term which may extend to
seven years, or to impute, unchastity to a woman,
shall be punished with imprisonment of either
description for a term which may extend to seven
years, or with fine, or with both.”

8. Keeping in view the above legal proposition, it is observed in the
facts and circumstances of the present case that the prosecutrix has
made specific allegations in her complaint against the petitioner
during lodging of the FIR and has further stated on similar lines

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during recording of her statements under Section 164 Cr.P.C where
it has been explicitly stated by her that the petitioner always tried
to make physical relations with her in absence of her husband; that
even her husband as well as her mother-in-law never supported her
to proceed against the petitioner; that on 17.07.2017, he visited her
house and forcibly tried kissing her, touching her, tore off her
clothes and harassed her.

9. On perusal of the statements made by her against the petitioner, it
is observed that the allegations against the petitioner are grave and
serious. Also, in Status Report, it has been stated that the
investigation is still in process and the petitioner herein is evading
arrest by not joining the investigation. Thus, the chance of the
petitioner escaping the procedure of law, tampering with the
evidence or threatening the complainant exists. In my view, since
the case is at the threshold and the investigations are underway, it
will be practically scuttling the investigation in case the
anticipatory bail is granted to the petitioner which will create
hurdles in arriving at the truth.

10. Determining the parameters in granting anticipatory bail in cases of
serious offences. The Supreme Court in Bhadresh Bipinbhai
Sheth vs State Of Gujarat Anr reported in (2016) 1 SCC 152
after analyzing the entire law has observed as under:-

“(a) The nature and gravity of the accusation and the
exact role of the accused must be properly
comprehended before arrest is made;

(b) The antecedents of the applicant including the
fact as to whether the accused has previously

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undergone imprisonment on conviction by a court in
respect of any cognizable offence;

(c) The possibility of the applicant to flee from
justice;

(d) The possibility of the accused’s likelihood to
repeat similar or other offences;

(e) Where the accusations have been made only with
the object of injuring or humiliating the applicant by
arresting him or her;

(f) Impact of grant of anticipatory bail particularly in
cases of large magnitude affecting a very large
number of people;

(g) The courts must evaluate the entire available
material against the accused very carefully. The
court must also clearly comprehend the exact role of
the accused in the case. The cases in which the
accused is implicated with the help of Sections
34 and 149 of the Penal Code, 1860 the court should
consider with even greater care and caution, because
overimplication in the cases is a matter of common
knowledge and concern;

(h) While considering the prayer for grant of
anticipatory bail, a balance has to be struck between
two factors, namely, no prejudice should be caused to
free, fair and full investigation, and there should be
prevention of harassment, humiliation and unjustified
detention of the accused;

(i) The Court should consider reasonable
apprehension of tampering of the witness or
apprehension of threat to the complainant;

(j) Frivolity in prosecution should always be
considered and it is only the element of genuineness
that shall have to be considered in the matter of grant
of bail and in the event of there being some doubt as
to the genuineness of the prosecution, in the normal
course of events, the accused in entitled to an order
of bail.”

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11. In view of the aforesaid settled principles, the facts and
circumstances of the present case and perusing the allegations
leveled against the petitioner, and considering the gravity of
offence, this court is not inclined to grant anticipatory bail to the
petitioner. Accordingly, the petition stand dismissed along with the
pending application.

12. Observations made in the order shall have no impact on the merits
of the case.

SANGITA DHINGRA SEHGAL, J
DECEMBER 7, 2017
gr//

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