P.B. vs State ( Govt Of Nct Of Delhi) & Anr on 12 April, 2017

* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Reserved on: 20th December, 2016
Decided on: 12th April, 2017

+ CRL.M.C. 1143/2016

P.B. ….. Petitioner
Represented by: Ms. Manika Tripathy with Mr.
Ashutosh Kaushik, Advs.

versus

STATE ( GOVT OF NCT OF DELHI) ANR ….. Respondent

Represented by: Mr. Hirein Sharma, APP with
Mr. Rahul Alwal, ACP/
Kalyanpuri, Insp. C.R. Meena,
SHO/New Ashok Nagar and SI
Neeraj Kumar, PS New Ashok
Nagar.

Mr. Muhammad Arif, Adv. for
R-2.

CORAM:

HON’BLE MS. JUSTICE MUKTA GUPTA

1. Aggrieved by the order dated 19th October, 2015 dismissing the
application of the petitioner seeking cancellation of bail of the respondent
No.2, the petitioner prefers the present petition. The name of the petitioner
has been changed in the cause title to conceal the identity of the petitioner.

2. FIR No.252/2014 was registered on the complaint of the petitioner for
offences punishable under Section 376 IPC and Section 4 of the Protection
of Children from Sexual Offences Act (In short the POCSO Act). The
petitioner alleged that she was staying on rent with her mother for the last

CRL.M.C. 1143/2016 Page 1 of 11
two years and studying in 10th standard. On 28th February, 2014 while going
to the School she was standing at Kondli Mode when at around 11.00 AM
the respondent No.2 whom she knew earlier came on a motorcycle and stated
that he would drop her at the school. Influenced by his words she sat on the
motorcycle, however on reaching the school he did not drop her and did not
even pay heed to her words that he should stop the motorcycle. The
respondent No.2 threatened her to remain seated on the motorcycle otherwise
the petitioner would face consequences. The respondent No.2 took the
motorcycle to a room near Chilla Regulator where he committed rape on her.
After committing rape he dropped her at her school at around 3.00 PM. Due
to fear she did not tell the facts to her mother and later revealed the facts
where after the FIR was registered on 4th March, 2015. The respondent No.2
was arrested and was sent to judicial custody on 6th March, 2014.

3. After completion of investigation charge-sheet was filed and the
petitioner was examined and cross-examined by the learned APP on 25th
August, 2014. After the petitioner was examined, vide order dated 20th
October, 2014, the learned ASJ noting that the statement of the prosecutrix
had been recorded and it would take time to conclude the trial, keeping in
view the facts and circumstances of the case admitted the respondent No.2 to
bail.

4. Challenging the said order dated 20th October, 2014 being perverse
and that after being released on bail the respondent No.2 was harassing the
petitioner, application for cancellation of bail was filed by the petitioner
which was dismissed by the order dated 19th October, 2015. Hence the
present petition.

CRL.M.C. 1143/2016 Page 2 of 11

5. The legal position on the twin grounds agitated for preferring the
present petition for cancellation of bail i.e. perversity in the order and
harassment to the witness was dealt by the Supreme Court in the decision
reported as (2001) 67 SCC 338 Puran Vs. Rambilas Anr. and it was held:

“10. Mr Lalit next submitted that once bail has been granted it
should not be cancelled unless there is evidence that the
conditions of bail are being infringed. In support of this
submission he relies upon the authority in the case of Dolat
Ram v. State of Haryana
[(1995) 1 SCC 349 : 1995 SCC (Cri)
237] . In this case it has been held that rejection of bail in a
non-bailable case at the initial stage and the cancellation of
bail already granted have to be considered and dealt with on
different basis. It has been held that very cogent and
overwhelming circumstances are necessary for an order
directing the cancellation of the bail already granted. It has
been held that generally speaking the grounds for cancellation
of bail broadly are interference or attempt to interfere with the
due course of administration of justice or evasion or attempt to
evade the due course of justice or abuse of the concession
granted to the accused in any manner. It is, however, to be
noted that this Court has clarified that these instances are
merely illustrative and not exhaustive. One such ground for
cancellation of bail would be where ignoring material and
evidence on record a perverse order granting bail is passed in a
heinous crime of this nature and that too without giving any
reasons. Such an order would be against principles of law.
Interest of justice would also require that such a perverse order
be set aside and bail be cancelled. It must be remembered that
such offences are on the rise and have a very serious impact on
the society. Therefore, an arbitrary and wrong exercise of
discretion by the trial court has to be corrected.

11. Further, it is to be kept in mind that the concept of setting
aside the unjustified illegal or perverse order is totally different
from the concept of cancelling the bail on the ground that the
accused has misconducted himself or because of some new facts
requiring such cancellation. This position is made clear by this

CRL.M.C. 1143/2016 Page 3 of 11
Court in Gurcharan Singh v. State (Delhi Admn.) [(1978) 1
SCC 118 : 1978 SCC (Cri) 41 : AIR 1978 SC 179] . In that case
the Court observed as under: (SCC p. 124, para 16)
“If, however, a Court of Session had admitted an
accused person to bail, the State has two options. It may
move the Sessions Judge if certain new circumstances
have arisen which were not earlier known to the State
and necessarily, therefore, to that court. The State may as
well approach the High Court being the superior court
under Section 439(2) to commit the accused to custody.
When, however, the State is aggrieved by the order of the
Sessions Judge granting bail and there are no new
circumstances that have cropped up except those already
existing, it is futile for the State to move the Sessions
Judge again and it is competent in law to move the High
Court for cancellation of the bail. This position follows
from the subordinate position of the Court of Session vis-
à-vis the High Court.”

6. Supreme Court in the decision reported as (2004) 2 SCC 362 Mehboob
Dawood Shaikh Vs. State of Maharashtra laying down the criteria for
cancellation of bail also held that the Court should be careful in weighing the
acceptability of the allegations and pass orders as circumstances warrant in
law. It was held:

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“7. It is trite law that the considerations for grant of bail and
cancellation of bail stand on different footings. By a majority
judgment in Aslam Babalal Desai v. State of
Maharashtra
[(1992) 4 SCC 272 : 1992 SCC (Cri) 870] the
circumstances when bail granted can be cancelled were
highlighted in the following words: (SCC pp. 289-90, para 11)
“11. On a conjoint reading of Sections 57 and 167
of the Code it is clear that the legislative object was to
ensure speedy investigation after a person has been taken
in custody. It expects that the investigation should be
completed within 24 hours and if this is not possible

CRL.M.C. 1143/2016 Page 4 of 11
within 15 days and failing that within the time stipulated
in clause (a) of the proviso to Section 167(2) of the Code.
The law expects that the investigation must be completed
with dispatch and the role of the Magistrate is to oversee
the course of investigation and to prevent abuse of the
law by the investigating agency. As stated earlier, the
legislative history shows that before the introduction of
the proviso to Section 167(2) the maximum time allowed
to the investigating agency was 15 days under sub-
section (2) of Section 167 failing which the accused could
be enlarged on bail. From experience this was found to
be insufficient particularly in complex case and hence the
proviso was added to enable the Magistrate to detain the
accused in custody for a period exceeding 15 days but
not exceeding the outer limit fixed under the proviso (a)
to that sub-section. We may here mention that the period
prescribed by the proviso has been enlarged by State
amendments and wherever there is such enlargement, the
proviso will have to be read accordingly. The purpose
and object of providing for the release of the accused
under sub-section (2) of Section 167 on the failure of the
investigating agency completing the investigation within
the extended time allowed by the proviso was to instil a
sense of urgency in the investigating agency to complete
the investigation promptly and within the statutory time
frame. The deeming fiction of correlating the release on
bail under sub-section (2) of Section 167 with Chapter
XXXIII i.e. Sections 437 and 439 of the Code, was to
treat the order as one passed under the latter provisions.
Once the order of release is by fiction of law an order
passed under Section 437(1) or (2) or Section 439(1) it
follows as a natural consequence that the said order can
be cancelled under sub-section (5) of Section 437 or sub-
section (2) of Section 439 on considerations relevant for
cancellation of an order thereunder. As stated
in Raghubir Singh v. State of Bihar [(1986) 4 SCC 481 :
1986 SCC (Cri) 511] the grounds for cancellation under
Sections 437(5) and 439(2) are identical, namely, bail

CRL.M.C. 1143/2016 Page 5 of 11
granted under Section 437(1) or (2) or Section 439(1)
can be cancelled where (i) the accused misuses his liberty
by indulging in similar criminal activity, (ii) interferes
with the course of investigation, (iii) attempts to tamper
with evidence or witnesses, (iv) threatens witnesses or
indulges in similar activities which would hamper smooth
investigation, (v) there is likelihood of his fleeing to
another country, (vi) attempts to make himself scarce by
going underground or becoming unavailable to the
investigating agency, (vii) attempts to place himself
beyond the reach of his surety etc. These grounds are
illustrative and not exhaustive. It must also be
remembered that rejection of bail stands on one footing
but cancellation of bail is a harsh order because it
interferes with the liberty of the individual and hence it
must not be lightly resorted to.”

8. It is, therefore, clear that when a person to whom bail
has been granted either tries to interfere with the course of
justice or attempts to tamper with evidence or witnesses or
threatens witnesses or indulges in similar activities which
would hamper smooth investigation or trial, bail granted can be
cancelled. Rejection of bail stands on one footing, but
cancellation of bail is a harsh order because it takes away the
liberty of an individual granted and is not to be lightly resorted
to.

9. It is undisputed that an affidavit of the Police Inspector
attached to Control Room, Solapur was filed which indicated
the threat given to the complainant in the court premises on 16-
7-2003. Merely because in the evidence recorded there is no
reference to the threat, that does not go to prove the negative or
sufficient to infer that there was no such threat. Learned
counsel for the appellant submitted that at least some reference
should have been made to the threat. That there was no such
reference, according to us, is really of no consequence. The
evidence was being recorded with regard to the incident dated
11-10-2002 and not in relation to a subsequent event which is
the subject-matter of consideration in the case registered in
relation to the alleged threat. In the affidavit it has been clearly

CRL.M.C. 1143/2016 Page 6 of 11
mentioned that a case (CR No. 3097 of 2003) was registered
under Section 188 IPC in relation to the threat.

10. It is fairly accepted by learned counsel for the appellant
that nothing seemed to have been urged by way of reply to the
affidavit or the truth or otherwise to the contents thereof before
the High Court, as the order impugned shows. That being so,
the appellant cannot make a grievance that no enquiry was
made to find out the truth or otherwise of the statement made in
the affidavit. As there were allegations prima facie showing that
the witnesses have been threatened, a ground for cancellation
of bail did exist.

11. Learned counsel for the appellant is correct on principles
that mere assertion of an alleged threat to witnesses should not
be utilized as a ground for cancellation of bail, routinely.
Otherwise, there is ample scope for making such allegation to
nullify the bail granted. The Court before which such
allegations are made should in each case carefully weigh the
acceptability of the allegations and pass orders as
circumstances warrant in law. Such matters should be dealt
with expeditiously so that actual interference with the ordinary
and normal course of justice is nipped in the bud and an
irretrievable stage is not reached.”

7. As regards the plea of perversity in the order granting bail it may be
noted that the respondent No.2 was granted bail only after the prosecutrix
was examined. It is well settled that even in serious cases if material
witnesses are examined and the trial is likely to take time, the exercise of
discretion by the Court in granting bail to the accused cannot be held to be
perverse. Learned counsel for the petitioner had vehemently submitted that
the reason for grant of bail to the respondent No.2 as noted by the learned
Additional Sessions Judge was that the petitioner failed to identify the
respondent as the accused which is incorrect as in her cross-examination by

READ  Raj Kumar De vs State Bank Of Hyderabad & Ors on 5 April, 2017

CRL.M.C. 1143/2016 Page 7 of 11
the learned APP she has identified the respondent No.2 as accused who
raped her and that she could not identify him earlier because she was scared.

8. The order dated 20th October, 2014 passed by the learned Additional
Sessions Judge granting bail to the petitioner reads as under:

“Learned counsel for the accused submits that accused is
in J/C since 06.03.14 and was falsely implicated in this case. It
is stated that this is first bail application moved after recording
of statement of prosecutrix.

Learned Addl. PP for the State opposes bail application
submitting that prosecution is supporting the prosecution case
and if released on bail, accused may abscond.

Accused is facing charge under Section 363/376 IPC and
4 POCSO Act. Statement of the prosecutrix has been recorded,
as per which she was kidnapped by accused on a motorcycle
and had taken her to Chilla Regulator and there she was raped.
Statement of the prosecutrix has been recorded. It will take
time to conclude the trial.

Keeping in view the facts and circumstances of this case,
accused/ applicant is admitted on bail on furnishing PB/SB in
the sum of ₹25,000/-.

Bail application is accordingly disposed of.”

9. The consideration as to whether the prosecutrix had identified the
accused or not did not weigh with the learned Additional Sessions Judge
while granting bail and the only consideration was that the statement of the
prosecutrix had been recorded and the trial was likely to take some time.
Hence the order granting bail to the respondent No.2 cannot be held to be
perverse warranting interference and cancellation of the bail on this ground.

10. In respect of the other ground seeking cancellation of bail that the
petitioner is being threatened and harassed by the respondent No.2 this Court

CRL.M.C. 1143/2016 Page 8 of 11
sought for a report from the investigating agency. The above-noted FIR was
registered on the complaint of the prosecutrix on 3 rd March, 2014 and on 6th
March, 2014 respondent No.2 was arrested and released on bail on 20th
October, 2014. After the respondent No.2 was released on bail the petitioner
got lodged 3 FIRs against him and the report filed by the State in this regard
is as under:

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“a) It is submitted that on 25.4.15, an information was
received in PS New Ashok Nagar vide DD No.10A and same
was marked to SI Rajiv Gautam. On this SI Rajiv Gautam
reached at the spot i.e. D-1/103 New Kondli Delhi where
complainant ‘PB’ met him. There was an injury on her left
hand. Medical of ‘PB’ was conducted in LBS Hospital and Dr.
opined “self inflicted injury simple fresh”. Statement of
complainant ‘PB’ was recorded and she stated that on 22.4.15
at about 9.30 AM she came to her school and she saw Brahm
Pal @ Raju. She further alleged that he was following her.
Accordingly a case vide FIR No.529/15 under Section 354D
was registered in PS New Ashok Nagar, Delhi. During the
course of investigation of this case accused Brahm Pal was
bound down by the IO of this case. After completion of
investigation charge sheet was filed before the Court on
26.7.16. This case is now pending trial. Next date of hearing in
Trial Court is fixed for 8.2.2017 for appearance.

b) Further it is submitted that on 8.6.2015, mother of the
complainant made a complaint in PS Ghazipur mentioning that
somebody sent abusive messages and calls by some unknown
numbers to her daughter ‘PB’. Accordingly a case vide FIR
No.543/15 under Section 506/509 IPC was registered in PS
Ghazipur. During the course of investigation of this case
statement of victim ‘PB’ was got recorded under Section 164
Cr.P.C. Victim ‘PB’ has stated in her statement under Section
161
Cr.P.C. that accused Raju made threatening calls and
vulgar messages and calls between January 2014 and March
2014. She has also stated that she has not saved any vulgar
message or recording of any threatening call. IO of this case

CRL.M.C. 1143/2016 Page 9 of 11
obtained ownership of alleged 3 mobile phone numbers.
Alleged mobile number 9990011383 is registered in the name of
Shakil Ahmed who on examination told that he knows ‘PB’ as
she lived in his neighbourhood in 2014 but he never made any
call or sent any message to her. The other alleged mobile
number 8285591487 is registered in the name of Brahm kumar
(accused in the present case). Alleged mobile number
9891397519 is registered in the name of Munni Joshi w/o
Darshant r/o B-12A Gali No.17 Baljeet Nagar Nithari and this
number has been issued on 7.12.2014 (after the date of
allegation made by the complainant). Case is still pending
investigation.

c) It is further submitted that on 6.10.15, an information
from LBS hospital was received in PS New Ashok Nagar, Delhi
vide DD No.40A. On this HC Devender reached at LBS
Hospital where victim ‘PB’ was found admitted vide MLC
No.15920/15. Victim ‘PB’ did not give her statement that day.
On 8.10.15, statement of ‘PB’ was recorded wherein she stated
that accused Brahm Pal @ Raju along with his other friends
and brothers harassed her and threatened her on the way. Due
to which on 6.10.2015, she took some poisonous substance for
committing suicide due to this harassment. Accordingly
another case vide FIR No.1337/15 under
Section354D/195A/506/34 IPC was registered in PS New Ashok
Nagar, Delhi. During the course of investigation of this case,
statement of victim ‘PB’ was recorded wherein she stated that
accused Raju threatened her in her school. He also threatened
to withdraw the case otherwise he will murder her. This case is
also pending investigation, copies of all the FIRs are also
annexed.”

11. A perusal of the three complaints filed by the petitioner after the
release of the respondent No.2 on bail reveals that in one case i.e. FIR No.
543/15 the allegations relate to period prior to registration of FIR No.
252/2014 and the matter is still pending investigation as one of the phone

CRL.M.C. 1143/2016 Page 10 of 11
numbers allegedly used for harassment had not even been issued on that
date. In FIR No.529/15 though the petitioner alleges harassment, the injury
on her was found to be self-inflicted. FIR No.1337/15 was registered on the
statement of the petitioner after she took some poisonous substance and tried
to commit suicide. Till date no charge-sheet has been filed in FIR Nos.
543/15 and 1337/15 for want of corroboration. Further all these three FIRs
were lodged before and during the pendency of the application for
cancellation of bail of the respondent No.2 was filed by the petitioner. As
noted by the Supreme Court in Mehboob Dawood (supra) cancellation of the
bail and deprivation of the personal liberty is a serious matter and the Court
while exercising the jurisdiction should act with circumspection and should
carefully weigh the acceptability of the allegations for cancellation of bail.
Testing the allegations of the petitioner on the touchstone noted by the
Supreme Court present is not a case wherein cancellation of bail of the
respondent No.2 is warranted as in none of the FIRs, the allegations of the
petitioner are corroborated by any independent material.

12. Petition is dismissed.

(MUKTA GUPTA)
JUDGE
APRIL 12, 2017
‘ga’

CRL.M.C. 1143/2016 Page 11 of 11

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