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Kamal Hasan vs State (Govt Of Nct Of Delhi) on 20 April, 2017

$~10
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of hearing and order: 20th April 2017

+ BAIL APPLN. 680/2017
KAMAL HASAN
….. Petitioner
Through: Mr. Manoj Ohri, Senior Advocate
with Mr. M.K. Perwez,
Mr.Abhimanyu Singh, Advocates

versus

STATE (GOVT OF NCT OF DELHI)
….. Respondent
Through: Inspector Rajesh Kumar, Sub-
Inspector Pooja Kumari, Police
Station Ranhola, Delhi

CORAM:
HON’BLE MR. JUSTICE P.S.TEJI
ORDER

%

P.S.TEJI, J. (Oral)

1. By this second application filed under Section 438 of Cr. P.C.,
the petitioner seeks anticipatory bail in FIR No. 146/2017 under
Section 363/376/506 of Indian Penal Code read with Section 6 of
POCSO Act, registered at Police Station Ranhola, Delhi.

2. The case in hand was initially registered under Section 363 of
IPC on the statement of father of the prosecutrix and the prosecutrix
was of 16 years of age and the petitioner was specifically named in

Bail Appln. No.680/2017 Page 1 of 7
the FIR. Statement of the prosecutrix under Section 164 of Cr. P.C.
was recorded on 22.03.2017. However in her second statement under
Section 164 of Cr. P.C. dated 01.04.2017, it was recorded that the
earlier statement given by her was due to the influence of the
petitioner and she further stated that she was also shown a gun by the
petitioner and was tutored by the petitioner, and thus she could not
depose about the true facts before the learned Metropolitan
Magistrate, who had recorded her statement under Section 164 of Cr.
P.C. on 22.03.2017. In her second statement dated 01.04.2017 she had
alleged that she was dragged in a car after being held by her hair, she
was given slap blows and her mouth was tied with cloth. Thereafter
she was taken to a house and kept there for the entire night. The
petitioner forcibly developed physical relations with her three times
and threatened the prosecutrix that if she would not depose in his
favour, he would kill her entire family and he had also shown video of
the prosecutrix and threatened her with uploading the same on net.

3. Learned senior counsel appearing on behalf of the petitioner
contended that during the course of investigation, the father of the
petitioner was lifted from his house and tortured therein to produce
the petitioner and the petitioner in fact surrendered himself before the
Investigating Officer and had already joined the investigation in the
evening of 21.03.2017. Thereafter, the prosecutrix was interrogated
by the Investigating Officer, who stated that she had gone on her own
to her friend’s house residing in the same vicinity without informing
her parents and stayed there overnight. She also denied being

Bail Appln. No.680/2017 Page 2 of 7
accompanied by her parents apprehending beating and torture on their
part. Therefore, the Investigating Officer of the case took her to Nari
Niketan Nirmal Chhaya at Hari Nagar, Delhi on 21.03.2017. The
prosecutrix reiterated her statement before the learned Metropolitan
Magistrate under Section 164 of Cr. P.C. and the petitioner was let
free from the police station with direction to appear as and when
required by Investigating Officer/court. Regarding medical
examination of the prosecutrix, it is contended that the prosecutrix at
the first instance had refused to be medically examined on
21.03.2017, however, later on 31.03.2017 she was medically
examined as per the instructions of her parents. While recording the
second statement under Section 164 of Cr. P.C. the prosecutrix has
twisted and fabricated the facts and only thereafter, section 376 of IPC
and Section 6 of the POCSO Act was added in the present case.
Thereafter, the petitioner had applied for anticipatory bail before the
learned Additional Sessions Judge, which was rejected vide order
dated 07.04.2017. At last, learned senior counsel for the petitioner has
contended that he has instructions to state that the petitioner is ready
to join the investigation as and when directed by the Investigating
Officer, therefore, the petitioner be granted anticipatory bail in the
present case.

4. Learned Additional Public Prosecutor for the State filed the
status report and vehemently opposed the aforesaid contentions of the
petitioner. It is contended on behalf of the State that the petitioner has
committed a grave offence of kidnapping a minor girl of 16 years of

Bail Appln. No.680/2017 Page 3 of 7
age and raped the complainant and also prepared obscene videos of
her. State has sought custodial interrogation of the petitioner to
recover the car used in the incident as well as the gun shown to the
victim.

5. I have heard the submissions made on behalf of both the sides
and also gone through the contents of the petition and the record of
this case.

6. In the first place, it is necessary to observe that in the present
proceedings, this Court is not concerned about the feasibility of the
allegations of the offence punishable under Section 376 Indian Penal
Code or merit thereof but on the grant of anticipatory bail to the
petitioner. Therefore, the submissions on behalf of the petitioner
attempting to find loopholes and weakness in the prosecution case,
contradictions in the two statements of the prosecutrix recorded under
Section 164 of Cr. P.C., on two different dates, would not be of much
relevance to the issue involved in the present case. In the considered
opinion of this Court, at this stage, it cannot be said as to whether
there was any physical relationship between the petitioner and the
complainant and, if so, whether it was consensual. The fact remains
that there are specific allegations of rape against the petitioner. It
would ultimately be for the trial court to arrive at the findings as to
whether such an allegation stands proved or not, on the basis of
evidence that would be produced by the prosecution in support of its
case. With these preliminary remarks, I advert to the core issue,
namely, whether in the circumstances of this case, petitioner is

Bail Appln. No.680/2017 Page 4 of 7
entitled to anticipatory bail or not and whether the learned Additional
Sessions Judge was justified in rejecting the anticipatory bail to the
petitioner.

7. For granting anticipatory bail to the person against whom the
allegations of rape has been levelled, the factors that need to be taken
into consideration, are; (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 possibility of the applicant to flee from
justice; (c) The possibility of the accused’s likelihood to repeat similar
or other offences; (d) Impact of grant of anticipatory bail particularly
in cases of large magnitude affecting a very large number of people;

(e) 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; (f) The Court should consider reasonable apprehension
of tampering of the witness or apprehension of threat to the
complainant and unless there are peculiar and special facts and
circumstances in a given case, the Court would not be justified in
extending the benefit of anticipatory bail to such a person.

8. At this stage, learned Additional Public Prosecutor for the State
has informed the court that the petitioner is a married person. The
question for consideration before this Court is, whether a man
knowing that he is married, could be permitted for such type of
‘enjoyment’ by spoiling the life of unmarried minor girl? This Court

Bail Appln. No.680/2017 Page 5 of 7
is of the considered opinion that once an unmarried minor girl is
subjected to such ill-treatment, particularly when she levels
allegations which are the subject matter of legal proceedings, virtually
stigmatic to the prosecutrix, where the plea generally taken by the
accused is that it was with the consent of the prosecutrix though he
had a married wife at his residence. In such a situation, he is not
entitled for any concession on this pretext. Apparently, the fact
involved in the present case does not merely constitute a legal offence
but is also an immoral offence, on the ground that he is acting in a
deceitful manner as he has a legal wife at home and still indulging in
playing with an unmarried minor girl outside his house which
ultimately could ruin her life. Such an act cannot be condoned as the
same is not permissible lawfully, socially, morally and legally.

9. In view of the aforesaid settled principles and considering the
facts and circumstances of the present case and the fact that the car as
well as the gun used in the alleged offence are to be recovered; the
fact that the investigation is at preliminary stage; and while perusing
the allegations levelled against the petitioner, and considering the
gravity of offence and the nature, this Court is not inclined to grant
anticipatory bail to the petitioner in this case.

10. Resultantly, in the considered opinion of this Court, the facts
emerging from the record culminates into dismissal of the present bail
application. Accordingly, the present bail application filed by the
petitioner is dismissed.

Bail Appln. No.680/2017 Page 6 of 7

11. Before parting with the order, this Court would like to place it
on record by way of abundant caution that whatever has been stated
hereinabove in this order has been so said only for the purpose of
disposing of the prayer for anticipatory bail made by the petitioner.
Nothing contained in this order shall be construed as expression of a
final opinion on any of the issues of fact or law arising for decision in
the case which shall naturally have to be done by the Trial Court
seized of the trial.

12. With aforesaid direction, the present bail application, filed by
the petitioner stand disposed of.

P.S.TEJI, J
APRIL 20, 2017
pkb/dd

Bail Appln. No.680/2017 Page 7 of 7

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