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Deepika Gupta vs State on 11 July, 2019

* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Decision: 11.07.2019

IN THE MATTER OF:
+ BAIL APPLN. 1565/2019 and CRL.M.(BAIL) 1115/2019
DEEPIKA GUPTA ….. Petitioner
Through: Mr. Amit Sharma, Mr. Madhukar
Pandey, Mr. Anirudh Mishra, Mr. Umesh
Kumar Singh, Mr. Shubham Sharma, Mr.
Pranesh Misra and Ms. Damanjit Kaur,
Advocates.
versus
STATE ….. Respondent
Through: Ms. Kusum Dhalla, APP for State
with SI Jyoti, PS Model Town.
Mr. Manish S., Mr. Akhilesh Kumar, Mr.
Rahul Gupta, Advocate for complainant with
complainant in person.

+ BAIL APPLN. 1566/2019 and CRL.M.(BAIL) 1116/2019
SANJAY GUPTA ….. Petitioner
Through: Mr. Amit Sharma, Mr. Madhukar
Pandey, Mr. Anirudh Mishra, Mr. Umesh
Kumar Singh, Mr. Shubham Sharma, Mr.
Pranesh Misra and Ms. Damanjit Kaur,
Advocates.
versus
STATE ….. Respondent
Through: Ms. Kusum Dhalla, APP for State
with SI Jyoti, PS Model Town.
Mr. Manish S., Mr. Akhilesh Kumar, Mr.
Rahul Gupta, Advocate for complainant with
complainant in person.

BAIL APPLN. 1565/2019 other connected matters Page 1 of 15
+ BAIL APPLN. 1567/2019 and CRL.M.(BAIL) 1117/2019
GAUTAM SURAJGARHIA ….. Petitioner
Through: Mr. Amit Sharma, Mr. Madhukar
Pandey, Mr. Anirudh Mishra, Mr. Umesh
Kumar Singh, Mr. Shubham Sharma, Mr.
Pranesh Misra and Ms. Damanjit Kaur,
Advocates.
versus
STATE ….. Respondent
Through: Ms. Kusum Dhalla, APP for State
with SI Jyoti, PS Model Town.
Mr. Manish S., Mr. Akhilesh Kumar, Mr.
Rahul Gupta, Advocate for complainant with
complainant in person.

CORAM:
HON’BLE MR. JUSTICE MANOJ KUMAR OHRI

MANOJ KUMAR OHRI, J. (ORAL)

1. By way of the present applications, the petitioners are seeking
anticipatory bail in FIR No.570/2017 registered under Sections
376D/506/34 IPC at P.S. Model Town, North West District, Delhi.

2. As the bail applications filed by the petitioners before the ASJ,
North: Rohini Courts, Delhi, were disposed of vide a common order dated
31.05.2019, the applications are taken up for hearing and disposed of vide
this common order.

3. It is noted that in so far as Deepika Gupta is concerned, the charge-
sheet was filed under Section 506/34 IPC whereas against Sanjay Gupta

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and Gautam Surajgarhia, the charge-sheet was filed under Sections
376D/506/34 IPC.

4. Learned counsel for the petitioners submits that the charge-sheet in
the present case has been filed against the petitioners while keeping them
in Column 11 of the charge-sheet, i.e., the charge-sheet was filed “without
arrest” and only when the petitioners were summoned, their applications
seeking bail were rejected by the impugned order. Learned counsel for the
petitioners, in support of his submissions, has placed reliance on :- (i)
Criminal Reference No.4 of 2017 titled as Court on Its Own Motion v.
State reported as 243 (2017) DLT 373; (ii) Criminal Reference No.1 of
2018 titled as Court on Its Own Motion v. State reported as 254 (2018)
DLT 641 and (iii) Dataram Singh v. State of Uttar Pradesh and Another
reported as (2018) 3 SCC 22.

5. Learned counsel for the petitioners submits that as per the
allegations in the FIR, although the alleged date of incident is the
intervening night of 12/13th November, 2016 but the FIR was registered
after a delay of more than one year, i.e., on 22.12.2017. He further submits
that as per the FIR, the complainant admitted that she was in Delhi 3/4
months prior to the lodging of the FIR at the house of one Mr. Verma, a
lawyer by profession.

6. Learned counsel for the petitioners further submits that the present
FIR is a counterblast to the complaint dated 23.09.2017 lodged by Sanjay
Gupta which was registered as DD No.39B at P.S. Model Town against
one NGO, i.e., “Mission Azad Foundation” and its founder Ranjit Kumar
Rai.

BAIL APPLN. 1565/2019 other connected matters Page 3 of 15

7. Learned counsel for the petitioners submits that the complainant and
one, Mohan were employed as “domestic help” in the house of Deepika
Gupta and Sanjay Gupta for the last about 14 and 20 years respectively.
Mohan, who was looking after Vijay Gupta (father of Sanjay Gupta), over
the years, had gained his trust and was handling all of the transactions and
valuables of Vijay Gupta. He further submits that the complainant and
Mohan were hand in glove and just two days prior to the death of Vijay
Gupta on 24.04.2016, both of them had jointly purchased the property
bearing Khasra No.3/16, Nathupura, Burari, Delhi for Rs.4,50,000/- from
one Sunil Kumar. He also submits that another property was purchased
by Mohan from one Sonu on 02.02.2015 for Rs.16,40,000/-. The said
property was purchased through Devender. He submits that as Sonu and
Devender were aware about acts of theft committed by Mohan, Sonu
informed Sanjay Gupta about the purchase of the property by Mohan.
Learned counsel for the petitioners submits that as per the statement of
Sonu filed alongwith the charge-sheet, Mohan had also projected the
complainant as his wife.

8. Learned counsel for the petitioners further submits that Sanjay
Gupta had received threats via Whatsapp messages as well as unsigned
letters from the aforesaid NGO, namely, “Mission Azad Foundation”, run
by one Ranjit Kumar Rai. On the basis of his complaint, an FIR
No.0007/2018 dated 10.01.2018 had been registered under Sections
385/506/34 IPC against the above mentioned Ranjit Kumar Rai. He
submits that Mr. Rai has been involved in many cases of extortion and
threats. He thus submits that the complainant has levelled allegations at
the behest of the above said Ranjit Kumar Rai. He submits that although

BAIL APPLN. 1565/2019 other connected matters Page 4 of 15
the petitioner claims to have shared details of incident with Mohan,
however, Mohan could not be traced during the investigation.

9. Per contra, learned APP for the State has opposed the bail
applications. She submits that although the charge-sheet was filed without
arrest, learned MM vide order dated 20.02.2019 had directed to investigate
the allegations of kidnapping of wife and children of Mohan as well as
forceful withdrawal of money from the bank account of the complainant
and Mohan. She submits that initially the case was registered at P.S. Model
Town, however, after investigation, the charge-sheet was filed by the
District Investigation Unit (DIU), North West.

10. Learned counsel for the complainant submits that the Police did not
register the aforesaid FIR and the same was registered on account of
directions issued in an application filed under Section 156(3) Cr.P.C. by
the complainant. He further submits that investigations were not carried
out properly as no CCTV footage from the bank was sought by the
Investigating Officer immediately on the registration of the FIR. He also
submits that the petitioners are influential persons and are likely to hamper
the investigation and the trial.

11. In the Rejoinder, learned counsel for the petitioners submits that as
per the charge-sheet, only a complaint was received by Dak in the Police
Station and the complainant did not present herself initially. He further
submits that no CCTV footage could have been obtained as the complaint
itself was made after a delay of one year.

12. I have heard learned counsel for the parties. The issue of a charge-
sheet filed without arrest of the accused person, came up for consideration
in a reference made by Chief Metropolitan Magistrate, East District,

BAIL APPLN. 1565/2019 other connected matters Page 5 of 15
Karkardooma Court, Delhi under Section 395(2) Cr.P.C. which was
answered by the Division Bench in Court on Its Own Motion (supra) in
the following manner: –

“5. The question of law referred for consideration of this Court
by the learned Magistrate has been settled by a learned Single
Judge of this Court in Court on Its Own Motion v. Central
Bureau of Investigation, 109 (2004) DLT 494 ILR 2004 (I)
Del. 47. In fact, the reference order takes note of the said
decision.

6. Since there is an authoritative determination by this Court of
the question raised by the learned Magistrate, in our view, there
was no scope for making such a reference in the first place. In
any event, we find ourselves in complete agreement with the
view taken by the learned Single Judge in the aforesaid case. In
this decision, the learned Single Judge, inter alia, observed.

19. It appears that the learned Special Judge was
labouring under a misconception that in every non-
bailable and cognizable offence the police is required to
invariably arrest a person, even if it is not essential for the
purpose of investigation.

20. Rather the law is otherwise. In normal and ordinary
course the police should always avoid arresting a person
and sending him to jail, if it is possible for the police to
complete the investigation without his arrest and if every
kind of co-operation is provided by the accused to the
Investigating officer in completing the investigation. It is
only in cases of utmost necessity, where the investigation
cannot be completed without arresting the person, for
instance, a person may be required for recovery of
incriminating articles or weapon of offence or for eliciting
some information or clue as to his accomplices or any
circumstantial evidence, that his arrest may be necessary.

BAIL APPLN. 1565/2019 other connected matters Page 6 of 15

Such an arrest may also be necessary if the concerned
Investigating Officer or Officer-in-Charge of the Police
Station thinks that presence of accused will be difficult to
procure because of grave and serous nature of crime as
the possibility of his absconding or disobeying the process
or fleeing from justice cannot be ruled out.

21. The liberty of a citizen is of paramount importance
and a constitutional guarantee and cannot be incised and
therefore the police or Investigating Agencies should not
remain under the impression that in every cognizable and
“non-bailable” offence they should invariably arrest the
offender. Power to arrest is altogether different than the
need for arrest. Unless a person is required for custodial
interrogation and investigation cannot be completed
without his arrest, arrest may be necessary. In case
investigation can be completed without his arrest and he
extends all kind of co-operation, he should not be arrested.
No authority howsoever powerful or mighty can be
allowed to deny a person his liberty as it hits at the very
foundation of democratic structure. In this regard, I cannot
resist the temptation of reproducing the observations made
by the Supreme Court in Joginder Kumar v. State of U.P.,
1994 (SLT Soft) 445(1994) 4 SCC 260 which are very
pithy and have force in law. These are as under:

No arrest can be made because it is lawful for the Police
Officer to do so. The existence of the power to arrest is one
thing. The justification for the exercise of it is quite
another. The Police officer must be able to justify the
arrest apart from his power to do so. Arrest and detention
in police lock-up of a person can cause incalculable harm
to the reputation and self-esteem of a person. No arrest can
be made in a routine manner on a mere allegation of
commission of an offence made against a person. It would
be prudent for a Police Officer in the interest of protection

BAIL APPLN. 1565/2019 other connected matters Page 7 of 15
of the constitutional rights of a citizen and perhaps in his
own interest that no arrest should be made without a
reasonable satisfaction reached after some investigation
as to the genuineness and bona fides of a complaint and a
reasonable belief both as to the person’s complicity and
even so as to the need to effect arrest. Denying a person of
his liberty is a serious matter.”

22. Because of the view taken by the Special Judge and
return of the charge-sheet by forcing the CBI to arrest the
accused which it otherwise never felt the necessity of
arresting him even for the purpose of investigation, an
apprehension of the accused being denied the benefit of
bail in spite of offence being devoid of high magnitude and
severe punishment this Court feels constrained to give
certain directions based on the legal position and several
judgments including those delivered by me recently {(i)
Suresh V. Chaturvedi v. AES Control Pvt. Ltd., Crl. M. (M)
2970/2003 decided on 24th July, 2003, (ii) Pratap Singh
Gaekwad v. State of NCT of Delhi, Crl. M. (M) 1848/2003
decided on 30th October, 2003, (iii) Sudhir Nathani v.
Central Bureau of Investigation, Crl. M. (M) 2848/2003
decided on July 24th, 2003} to the police and the
investigating agencies as well as to the Courts competent
to take cognizance of the offence and try the accused for
guidance and compliance. These are:

Directions to the Police/Investigating Agencies like CBI,

etc.:

(1) Investigating Officer, be of police station or special
agency like CBI shall not arrest any person accused of
having committed a cognizable and non-bailable offence
until it is very necessary for the purpose of investigation or
custodial interrogation say for recovering incriminating

BAIL APPLN. 1565/2019 other connected matters Page 8 of 15
articles or weapons of offence or eliciting information as
to his accomplices etc. or for any other purpose that may
help in gathering evidence to prove his guilt.

(2) Arrest should always be avoided if the investigation
can be completed even otherwise and the accused gives full
co-operation in completing the investigation.

(3) Arrest may be necessary, if the offence alleged is of
grave nature and prescribes severe punishment and there
is a likelihood of an offender either absconding or not
appearing on being summoned or his fleeing away from
justice or judgment.

XXX

Directions for Criminal Courts :

XXX

(v) The Court shall on appearance of an accused in non-
bailable offence who has neither been arrested by the
police/Investigating Agency during investigation nor
produced in custody as envisaged in Section 170, Cr.P.C.
call upon the accused to move a bail application if the
accused does not move it on his own and release him on
bail as the circumstance of his having not been arrested
during investigation or not being produced in custody is
itself sufficient to entitle him to be released on bail. Reason
is simple. If a person has been at large and free for several
years and has not been even arrested during investigation,
to send him to jail by refusing bail suddenly, merely
because charge-sheet has been filed is against the basic
principles governing grant or refusal of bail.”

XXX

13. While answering the above reference, it was further held:-

BAIL APPLN. 1565/2019 other connected matters Page 9 of 15

“9. The view taken by the learned Magistrate that in offences,
whereof the sentence is beyond seven years, the investigating
agency should necessarily arrest the accused and produce the
accused in custody at the time of filing the charge-sheet under
Section 173, Cr.P.C. before the Magistrate, has no basis and is
contrary to the statutory scheme. In this regard, reference may
be made to Sections 2(c), 41 (41(1) (b), 41(1) (b) (a), 15791),
173(2) (e), 173(2) (f) 173(2) (g) of the Code, which put the
matter beyond any doubt that the investigating agency is not
obliged to arrest the accused whenever a cognizable offence is
registered. The discretion to arrest the accused has to be
exercised by the investigating agency by applying the principles
laid down in the Code itself.

10. The aforesaid position has been reiterated by this Court in
Udit Raj Poonia v. State (Govt. of NCT of Delhi), 238 (2017)
DLT 2122017 SCC Online Del. 6997; as also in Rajesh Dua
v. State, Bail Application No.778/2017 decided on 9.8.2017.
Thus, the Metropolitan Magistrate cannot examine whether the
discretion of the IO to arrest, or not to arrest the accused, has
been properly exercised. He is only concerned with the charge-
sheet, as filed. He may return the charge-sheet if he finds that
the investigation is not complete, or the charge is not borne out
from the evidence collected and filed with the charge-sheet. But
he cannot return the same merely because the accused has not
been arrested and produced in custody at the time of filing the
charge-sheet.”

14. The view was reiterated by the Division Bench in another reference
bearing Criminal Reference No.1 of 2018 titled as Court on Its Own
Motion v. State reported as 254 (2018) DLT 641, DB, where it was further
held as under :-

“40. The last question of law referred for our consideration is
the following:

BAIL APPLN. 1565/2019 other connected matters Page 10 of 15

(E) Whether this Court can release the accused on bail charge-
sheeted without arrest under Section 376, IPC or any other
offence punishable with imprisonment of life or death in view of
bar under Section 437 (1) (i) [sic 437 (i)] Cr.P.C.

In the light of our discussion, as aforesaid, the accused, who is
charge-sheeted without arrest under Section 376, IPC or any
other offence punishable with imprisonment for life or death,
may be released on bail under Section 437 (1) Cr.P.C.,
provided:

(i) There are no reasonable grounds for the Court to
believe that the accused has been guilty of the offence
punishable with death or imprisonment for life, or;

(ii) the accused is under the age of 16 years or a woman or
a sick or infirm.

The existence of the aforesaid circumstances merely enables the
Court to consider the application for grant of bail under Section
437(1), Cr.P.C. However, the considerations which go into the
making of the decision whether to grant bail or not, are those
that we have exhaustively considered and set out herein above.
Thus, it would depend on the circumstances of the individual
case, whether or not the accused should be released on bail by
the Court under Section 437(1), Cr.P.C.. The reference stands
answered in the aforesaid terms.”

15. The issue in hand was conclusively answered by the Supreme Court
in Dataram Singh (supra) where it was held:-

“16. In our opinion, it is not necessary to go into the
correctness or otherwise of the allegations made against the
appellant. This is a matter that will, of course, be dealt with by
the trial Judge. However, what is important, as far as we are
concerned, is that during the entire period of investigations
which appear to have been spread over seven months, the
appellant was not arrested by the investigating officer. Even

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when the appellant apprehended that he might be arrested after
the charge-sheet was filed against him, he was not arrested for
a considerable period of time. When he approached the
Allahabad High Court for quashing the FIR lodged against him,
he was granted two months’ time to appear before the trial
Judge. All these facts are an indication that there was no
apprehension that the appellant would abscond or would
hamper the trial in any manner. That being the case, the trial
judge, as well as the High Court ought to have judiciously
exercised discretion and granted bail to the appellant. It is
nobody’s case that the appellant is a shady character and there
is nothing on record to indicate that the appellant had earlier
been involved in any unacceptable activity, let alone any
alleged illegal activity.” (emphasis added)

16. In the present case, the Investigating Agency has filed the charge-
sheet without arresting the petitioners. The relevant portion of the
translated true typed copy of the charge-sheet placed on record alongwith
the petition is reproduced below:-

“During investigation of case an independent witness has also
been examined, who has deposed in his statement that a man
namely Mohan had purchased a house from him in Burari,
which there Complainant ‘X’ didn’t use to come also on
10.11.16 Sanjay (accused), his wife and a man and a woman
had come at Burari and took away Mohan, his family and ‘X’
with them and that on next day Sanjay told him on phone that
Mohan and ‘X’ has accepted mistakes of their theft and they
have accepted also that they have purchased a house from the
money they have theft.

During investigation accused Sanjay, Gautam and Deepika
were made to join the investigation and interrogated. That
during investigation accused Sanjay told that ‘X’ has served at
his house till his father’s death, whereas his father passed away
in April only and the death certificate of his father given by

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Sanjay was taken into Police custody, which is annexed with the
file.

That Complainant has made allegation of rape after about one
year and an independent witness has also came forward, who
has told in his statement that complainant ‘X’ in November,
2016 used to live in Burari along with a person namely Mohan
and accused Sanjay had lodged a complaint of extortion against
‘X’ and her associates prior to registration of case by ‘X’.
Subsequently on the said complaint an FIR No.07/18, u/s
385/120B/343 IPC was registered at Model Town Police
Station against ‘X’ and her associates, which is pending
adjudication. That in this case no other material has been found
against the accused persons other that the statement of
complainant. So, accused persons are being charge-sheeted
without arrest.”

17. I have perused the case file produced by the learned APP. The
incident alleged in the FIR relates to the offence committed on the
intervening night of 12/13th November, 2016. The complainant had come
back to Delhi about 3/4 months prior to the lodging of the FIR. The FIR
has been registered after a delay of more than one year. The investigation
in the present case was transferred and the charge-sheet has been filed by
the DIU, North West.

18. Apparently, the WhatsApp messages and the letters received from
the NGO, namely, “Mission Azad Foundation” about the withdrawal of
money by the petitioners from the account of the complainant and the said
Mohan, however, is silent about any allegation of rape. The messages
the letters received from the above NGO, are subject matter of
investigation in the FIR No.0007/2018 lodged at the instance of Sanjay
Gupta. As per the charge-sheet and the Status Report, the petitioners had
joined investigation not only prior to the filing of the charge-sheet but even

BAIL APPLN. 1565/2019 other connected matters Page 13 of 15
subsequently when directions for further investigations were given by the
learned MM on 20.02.2019. It is noted that further investigation was
directed on the aspect of investigation relating to allegations of kidnapping
of wife and children of Mohan as well as the banking transactions relating
to the account of the complainant and the said Mohan. The evidence with
respect to the banking transaction is documentary in nature. As per the
Status Report filed on behalf of the State, it is stated that:-

“The prosecutrix had stated in FIR that after the alleged rape,
she narrated the whole incident to the servant Mohan Yadav.
However, during investigation efforts were made to examine
Mohan Yadav in this regard but the prosecutrix failed to trace
the address or contact number of Mohan Yadav. I.O. also tried
to trace Mohan Yadav at all relevant places in Delhi. But he
could not be traced. As a result, Mohan Yadav could not be
examined so far in the case.

From the investigation conducted so far there is no
corroborative evidence against any of the accused as far as
allegation of rape is concerned. Any regards allegation of
forceful transaction of money and signature on blank papers,
there is inconsistency in the version of the prosecutrix. Further
Mohan Yadav who is the material witness as per allegations,
could also not be examined so far as he is not traceable.”

19. Having gone through the case file and the relevant law, which has
been placed on record and in the facts and circumstances of the case, it is
directed that in the event of arrest, the petitioners be released on bail, on
their furnishing personal bonds in the sum of Rs.1,00,000/- each with one
surety of the like amount to the satisfaction of the I.O./SHO subject to
following conditions:-

BAIL APPLN. 1565/2019 other connected matters Page 14 of 15

(i) The petitioners/applicants will not directly or indirectly
make any inducement, threat or promises to the complainant or
any witness during the investigation/trial or tamper with the
evidence.

(ii) The petitioners/applicants will provide the I.O./SHO,
Police Station Model Town, North West District, Rohini, Delhi
with their mobile numbers and in the event of change of their
residential addresses, shall inform the same to the I.O./SHO.

(iii) The petitioners/applicants will not leave the
jurisdiction of the National Capital Territory of Delhi without
prior permission of the concerned Court.

(iv) The petitioners/applicants will appear before the
concerned Court on all occasions.

20. With the above directions, the petitions are disposed of.

21. Needless to state that nothing stated hereinabove, will be considered

as an expression of opinion on the merits of the case.

DASTI.

(MANOJ KUMAR OHRI)
JUDGE
JULY 11, 2019
na

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